JUDGMENT : Ratnaker Bhengra, J. 1. Heard the parties. 2. As per the report of the O/c Petarwar Police Station, and the Mukhia Pichhari, Police Station Petarwar, appellant No.2, Khiru Mishra of Cr. Appeal (S.J.) No. 702 of 2003, and appellant No.2, Dewanti Devi of Cr. Appeal (S.J.) No. 742 of 2003, have both died and passed away. Hence, the appeals of both the aforesaid appellants stand abated. 3. All the three appeals are directed against the judgment of conviction dated 09.05.2003 and order of sentence dated 14.05.2003, passed by the learned Additional Sessions Judge, Fast Track Court No.I, Bermo at Tenughat in Sessions Trial Case No. 212 of 1989, whereby and where under, the appellants have been convicted and sentenced to RI for 7 years for the offence under Sections 304B/120B IPC and further they have been convicted and sentenced to undergo RI for 3 years under Section 498A IPC and fine of Rs.2,000/- each. In case of default shall undergo imprisonment for 3 months. However, both the sentences were directed to run concurrently. 4. The prosecution case as per the written report of Upendranath Mishra, PW-4 is that marriage of her niece Dipak Devi had taken place five years ago with Tapan Mishra. Two years back, her ‘gauna’ had taken place and Dipak started living in her matrimonial home. After six months, her in-laws started torturing her. Last year she was pushed in a well, in which, she had sustained some injuries. After panchayati Tapan Mishra agreed to keep Dipak Devi in his house. There was a demand of colour T.V., Gold chain and cash. Because of this demand, atrocities were committed upon Dipak Devi. On 11.08.1988, there was a hullah in the village that Dipak has committed suicide. Several persons saw the dead body and it appeared that after committing the murder the body has been hanged with a rope. He also stated that he was informed by his brother Harinandan Mishra. He reached village Pichri and he saw his niece hanging with a rope but it appeared that she has been hanged after being murdered. He further stated that accused persons jointly have committed this crime and in order to destroy the evidence has hanged the dead body with a rope. He stated motive as non-fulfillment of dowry demand which included colour T.V. and gold chain. He further stated that accused persons jointly have committed this crime and in order to destroy the evidence has hanged the dead body with a rope. He stated motive as non-fulfillment of dowry demand which included colour T.V. and gold chain. He has also suggested that the dead body did not bear any sign of suicide and suspected that due to non-fulfillment of T.V., and gold chain, the accused persons have committed this murder in the night of 10.08.1988. 5. On the basis of written report of the informant FIR was registered under Section 304B IPC. On completion of the investigation, charge-sheet was submitted under Sections 304B/34/120B IPC. After cognizance the case was committed to the Court of Sessions. Charges were framed under Sections 498A, 304B & 120B IPC. Trial was held and at the conclusion of trial appellants were convicted and sentenced as aforesaid. Hence, this appeal. 6. Prosecution has examined altogether eight witnesses in support of its case viz. PW-1, Bhaweshwar Murmu; PW-2, Vijay Kr. Singh; PW-3, Ramdas Mishra; PW-4, Upendra Nath Mishra; PW-5, Amawati Devi; PW-6, Chetan Manjhi; PW-7, Hrisikesh Narayan Poddar; and PW-8, Dr. B.P. Singh. Defence also examined four witnesses. 7. PW-4 is Upendra Nath Mishra. He is the informant uncle of the deceased Dipak Devi. He deposed that her marriage took place with Tapan Mishra. After ‘gauna’ Dipak Devi went to her matrimonial home. After 2-3 months, atrocities were committed upon her by her in-laws. After 4-6 months of gauna she was tortured by her mother-in-law. Once she was branded by hot iron rod and other time she was pushed into a well. She was tortured for demand of colour T.V. and gold chain. Several panchayati were held and in the last panchayati which was attended by sarpanch and mukhia, it was decided that Dipak Devi may be allowed to live in her sasural after some transaction. In para-4, he deposed that Dipak Devi was murdered in the night of 10.08.1988 but he had received information on the next day. He reached to the place of occurrence at about 8:30 in the morning and found the dead body hanging in a room which was of low height i.e. about 4 feet. He suspected that the accused persons have committed the murder. He went to the Peterwar police station and gave the written information. The written report is marked as Ext.-3. He reached to the place of occurrence at about 8:30 in the morning and found the dead body hanging in a room which was of low height i.e. about 4 feet. He suspected that the accused persons have committed the murder. He went to the Peterwar police station and gave the written information. The written report is marked as Ext.-3. and thereafter, police prepared inquest report in which he and Hrishikesh Poddar had signed. Body was sent for post mortem. In para-10, he deposed that in 1985 also some cash and a fan was given to the accused persons. 8. PW-3 Ram Das Mishra is the ‘Mama’ of the deceased Dipak Devi. He deposed that Dipak Devi was married with Tapan Mishra of resident of village Pichri. After two years of her marriage her gauna had taken place. After marriage she lived in her matrimonial home. when she went to her Sasural her mother-in-law, Suresh Mishra (brother-in-law), her husband and father-in-law started making demand of colour T.V. They also used to assault Dipak Devi for non-fulfillment of the same. Due to non-fulfillment of the dowry, Dipak Devi was subjected to cruelty. Once she was branded with hot iron road and once she was pushed into a well. After that Dipak Devi fled to her mother’s house in order to save her life. Tapan Mishra was not ready to allow Dipak Devi in his house till the demand of colour T.V. was fulfilled. A caste panchayat was held in which Biranchi Mishra and Ratan Kr. Mishra also attended. Suresh Mishra was rigid that the deceased girl would not be allowed to enter into her sasural until and unless demand of colour T.V. and gold chain is fulfilled. He threatened that she will be killed if the demand is not made. On the intervention of Ratan Mishra and Sarpanch, Khiru Mishra agreed to keep Dipak Devi in his house. He has further stated that on 10.08.1988 in the morning he received information that Dipak Devi has been killed. He reached the place of occurrence and saw the dead body of Dipak Devi which was hanging and her legs were touching the ground. It appeared that after committing murder, the body was hanged at a place which had a height of 4 feet. 9. PW-5 Amawati Devi is the mother of the deceased Dipak Devi. He reached the place of occurrence and saw the dead body of Dipak Devi which was hanging and her legs were touching the ground. It appeared that after committing murder, the body was hanged at a place which had a height of 4 feet. 9. PW-5 Amawati Devi is the mother of the deceased Dipak Devi. She deposed that the marriage of her daughter took place with Tapan Mishra. Two years prior to the occurrence, her ‘gauna’ had taken place. Since then the accused persons used to beat Dipak Devi for demand of colour T.V. In para-2, she deposed that in the month of ‘Paush’ her daughter fled away from her sasural out of fear because her mother-in-law was trying to brand her with hot iron rod. She has also stated that her daughter’s sasural is in the same village and is about 200 yards far from her house. In order to settle the matter, a caste panchayati was held two months prior to the incident. It was attended by several persons, including the informant, Mukhia and Sarpanch of the village. Biranchi Mishra was making an effort to settle the matter but this was objected by Suresh Mishra. Matter was settled and the deceased was allowed to live in her sasural. After two months, the accused persons strangulated her daughter and her body was hanged on the beam of a room. She further deposed that Tapan Mishra, Suresh Mishra, mother-in-law of Dipak Devi used to threaten that if the colour T.V. is not given the girl would be killed and second marriage of Tapan will be solemnized. Due to this threat, two months before the occurrence PW-5 somehow managed to give Rs.4000/- before the Mukhia. 10. PW-6 is Chetan Manjhi. He is the neighbour of Khiru Mishra. He deposed that Tapan’s wife died but he does not know under what circumstances she died. He was declared hostile by the prosecution. 11. PW-7 is Hrisikesh Narayan Poddar. He is the inquest report witness. He deposed that he had seen the dead body which was hanging and her legs were touching the ground. Police prepared an inquest report, on which, he had put his signature. Photograph of the dead body was also taken. He identified the photograph, which is marked ‘X’ for identification. 12. PW-8 is Dr. B.P. Singh. He conducted the post-mortem examination of the deceased. He found following: “Conjuctivia congested. Police prepared an inquest report, on which, he had put his signature. Photograph of the dead body was also taken. He identified the photograph, which is marked ‘X’ for identification. 12. PW-8 is Dr. B.P. Singh. He conducted the post-mortem examination of the deceased. He found following: “Conjuctivia congested. Face swollen and synosed. Bleeding from nose present. I. Ligature mark ante-mortem in nature, slightly depressed situated below the thyroid cartilage transversally and encircling the neck completely. Abrasions and euchoymosis round about edges of the ligature marks were present. II. A ligature mark place above the ligature No.(1) post-mortem in nature, directed obliquely upwards following the line of the mandible with interruption of the back reaching mastoid processes behind the ears. III. On dissection found following: a. Extravasations of blood into the subcutaneous tissue under the ligature mark was found. Right cornu of the huoid bone was fractured., layrynx and trachea congested and contained forthymucces. Lungs congested. Right side heart contained blood and left side empty, stomach contained liquid about 50 C.C. and its mucus membrane normal. Urinary bladder empty, liver spleen and kidney congested. Uterus normal size non-gravid. Brain congested. b. No corroborative sign suggestive of hanging was found in ligature No. II. Cause of death- Asphyxia as a result of strangulation. This post-mortem report has been marked as Ext.4.” 13. The defence has examined four witnesses. 14. DW-1 is Dukhan Mishra. He deposed that Tapan Mishra’s marriage was solemnized with Dipak Devi. Her ‘gauna’ took place after two years of her marriage. She used to live happily in her sasural. He had attended one of the panchayati which took place in the year 1987. The issue in the panchayati was that Dipak Devi used to leave her sasural in the night and go to her mother’s house. In para-3, he has stated that it was a caste panchayati which was convened at the instance of Amawati Devi, PW-5. Amawati Devi had complained that the accused family used to torture her. In para-6, he denied that any dowry demand was made by the accused in the panchayati. 15. DW-2 is Ratan Kr. Mishra. At the time of occurrence, he was the sarpanch of the village Pichri. He deposed that no panchayati was ever convened for demand of dowry nor he had any knowledge that Dipak was subjected to cruelty and assault. In para-6, he denied that any dowry demand was made by the accused in the panchayati. 15. DW-2 is Ratan Kr. Mishra. At the time of occurrence, he was the sarpanch of the village Pichri. He deposed that no panchayati was ever convened for demand of dowry nor he had any knowledge that Dipak was subjected to cruelty and assault. He said that the caste panchayati was taken place at the instance of both family. The mother complained that her daughter was assaulted and abused by her in-laws. The accused complained that the girl used to leave her sasural in the night for her mother’s place. In para-5, he has denied that there was any demand of colour T.V., gold chain and money and for this panchayati was not held. 16. DW-3 is Wakil Mishra. He deposed that there was no dispute regarding any dowry between the families. 17. DW-4 is Biranchi Mishra. He said that the marriage of Tapan Mishra had taken place with Dipak Devi. A caste panchayati was held, in which, he participated. In the panchayati, the issue was that the girl used to leave her in-laws in the night. No dowry demand was ever made. Arguments of the learned counsel for the appellants: 18. Learned counsel for the appellants has pointed out that as per PW-5, next to the house there is a ‘chhapra’ and it was there that the deceased was seen hanging. Referring to the evidence of PW-3, or the ‘Mama’ (uncle), it was also submitted that the offence does not fall under Section 304B IPC, but since the death occurred outside the house of the appellant, or in the ‘gohal’, therefore, death was probably a suicide for her own reasons, and the appellants are not in any way responsible for this. PW-6 or Chetan Manjhi had submitted that he had never heard any adverse thing. Referring to the evidence of the Doctor, it is stated that only two injuries were found, and Doctor has also opined that it may be a case of suicide, and that there was no sign of manual strangulation. 19. PW-6 or Chetan Manjhi had submitted that he had never heard any adverse thing. Referring to the evidence of the Doctor, it is stated that only two injuries were found, and Doctor has also opined that it may be a case of suicide, and that there was no sign of manual strangulation. 19. Learned counsel for the appellants has submitted that in view of the statement of the mother of the deceased, it is clear that there was no atrocity committed towards the deceased, as because she has stated in para-7 that “ek hi baar dagne ke dar se bhag kar aai thi”. As such, throwing in a well incident, as alleged, is out and out a false one. 20. Learned counsel for the appellants has further submitted that Biranchi Mishra deposed that panchayati was performed only because in the night the victim used to flee away to her mother’s house, which is just the other side of her sasural, as such, the occurrence is not at all proved against the appellants. 21. Learned counsel for the appellants has further submitted that since the death has not occurred in the house of the appellants and it was bound the premises of the appellants and the house surrounded of Ratan Kumar Mishra, not of the appellants, as such, at best the appellants can be fastened with the liability of abatement to suicide only. 22. Learned counsel for the appellants has also submitted that Investigating Officer in this case has not been examined, which prejudiced the case of defence as because the topography of the place of occurrence where deceased committed suicide was not at all being proved. 23. Learned counsel for the appellants has further submitted that interested witnesses have been supposed to be true whose evidence has to be scrutinized with great care and caution and no independent witness has come forward to support the allegations levelled against the appellants. 24. Learned counsel for the appellants has submitted that neighbour Chetan Manjhi has been declared hostile and he has supported the part that there was no ‘hulla-gulla’ or ‘jhanjhat’ in the family of the appellants at any time earlier. 25. Learned counsel for the appellants has further submitted that the statement under Section 313 Cr.P.C. has not at all been considered in true perspective. 26. 25. Learned counsel for the appellants has further submitted that the statement under Section 313 Cr.P.C. has not at all been considered in true perspective. 26. Learned counsel for the appellants has further submitted that the appellant Tapan Mishra, husband of the deceased, was not even present in his house even then he has been implicated. Arguments of learned counsel for the State: 27. Learned counsel for the State has argued that the appellant’s counsel has argued on behalf of Surendra Mishra, one of the appellants, that he was about minor. Learned counsel for the State has said that he was about minor which means that he could also be above the age conceded for minority. Further this appellant, Surendera Mishra by his own submission stated that he was living separately. If he was a minor then he would not have been living separately. No documentary evidence has been claimed by the appellant herein which would indicate that he was a minor at the time of the offence. 28. Regarding Suresh Mishra, another appellant, counsel for the State has submitted that he is the person who was instigating angrily on behalf of all the appellants against the deceased. 29. Learned counsel for the State has then argued that deceased was twice assaulted or attempts were made by inflicting injury on her or the deceased by a hot iron. Moreover, she was actually pushed into the well, and this has been substantiated by the evidence of PW-4 who has said this. 30. Learned counsel then points out that it has come from the evidence of some of the prosecution witnesses that when the deceased was hanging by the neck her feet was touching the floor. Counsel for the State has said that if this is so, that a feet was touching the floor then it cannot be a case of hanging by the deceased herself. Moreover, as per the Doctor or medical evidence, there is corroboration for strangulation, therefore, from the evidence of the Doctor, it is apparent that she was first strangulated and thereafter, she was hanged to make it appeared as if her death has been suicidal, and suicide is one of the defence that has been claimed by the appellants instead of the offence being brought within the ambit of Section 304B IPC. Counsel for the State, at this juncture, says that even if it was a suicide she was propelled and compelled by the appellants to have taken such a step or it can be construed that she was propelled and compelled by the appellants to take such a step because of the demand for dowry and the accompanying torture and harassment, therefore, even such suicide will bring the offence under the ambit of Section 304B IPC. 31. Learned counsel for the State has then argued that the argument of soon before is fully made out because marriage of the year 1983 she died in the year 1988 so the time compressed is around five years and it is a deviated form of the required period of years of seven years under the relevant Section. However, from the evidence of PW-3, PW-4, and PW-5, it is apparent that the demand and accompanying harassment were continuing offence and in that context, soon before cannot be construed as being a very short period just before the death occurs. Moreover, her death has to be also looked into and we see that in this case the death is fully unnatural, it is within the period of seven years and there is ample evidence that there was demand for dowry for certain items and for this, she was also tortured and harassed and therefore, in such circumstances, demanding or requiring that soon before should be interpreted to mean a very short period before the death of the deceased will make a mockery of the life blink that is required between the death of the deceased and the reasons for her death. Moreover, from the evidence of PW-5, who is the mother of the deceased, she has given evidence in para-4 that just two months prior to the occurrence of her death she had given Rs.4000/- to the appellants. In para-3 of the evidence of PW-5 where she has made allegations against Suresh. 32. Learned counsel for the State also says that there is ample reference to the panchayati and from the records available and from the impugned judgment it does not seem that the occurrence of panchayati was denied. In fact, both sides agreed that there was a panchayati though the appellants say that the panchayati was there because the deceased used to keep running away from the home. In fact, both sides agreed that there was a panchayati though the appellants say that the panchayati was there because the deceased used to keep running away from the home. Learned counsel for the State says that she used to keep running away from the home precisely because she was tortured and harassed for the demands they were making upon her. 33. Learned counsel for the State also submits that photographs have been placed on record and exhibited which demonstrably show that the deceased legs were touching the floor while she was hanging. The photographic evidence clearly indicates that it was a case of contrived hanging or hanging or that she had been hanged after she had been killed or murdered and hanged only to make it appeared as it was a suicide. FINDINGS 34. Having heard both the counsels and having gone through the records of the case, the evidence and in the facts and circumstances, it is noticed that in this case there are three important witnesses. They are PW-4, Upendra Nath Mishra, who is the uncle of the deceased and the informant; PW-3, Ram Das Mishra, who is another uncle or ‘Mama’ of the deceased and PW-5, Amawati Devi, who is mother of the deceased. It is seen in the evidence of first and foremost PW-4, Upendra Nath Mishra who stated in para-2 that the in-laws of the deceased tortured her for the demand of colour T.V. and chain and at para-3, he has deposed that panchayati were held many times regarding the torture given to the deceased. So it seems that there was a history of serious cruelty on the deceased. 35. From the evidence PW-3, Ram Das Mishra, in para-2 he has deposed that accused had demanded colour T.V. and for the same she was tortured. From the evidence of PW-3 also it seems that there was history of violence against the deceased. At para-3, it has further been deposed that the accused husband or the appellant herein Tapan Mishra did not want to keep his deceased-wife without fulfilment of demands for colour T.V. PW-3 further in para-3 of his evidence deposed that to solve the matter caste panchayati was held in the house itself in which Sarpanch also participated. Due to intervention of panchayat accused side were ready to solve the matter. Due to intervention of panchayat accused side were ready to solve the matter. But appellant Suresh Mishra or Bahnoi of Tapan Mishra said without colour T.V. and gold chain girl will not be allowed to enter in the house. If she enters, she will be killed. Moreover, this witness has deposed that the demand for colour T.V. and chain was made in his presence. PW-5, Amawati Devi, is the mother of the deceased and she has deposed in para-1 that the deceased was harassed by her husband Tapan Mishra for the demand of colour T.V. It is apparent from the evidence of this witness, who is the mother of the deceased, or Amawati Devi that she had knowledge of the demand that have been made upon her daughter and harassment and torture she was suffering. Therefore, from the evidence of PW-3, PW-4, and PW-5 it appears that the life of the deceased Dipak Devi was not peaceful and comfortable one after marriage and that after marriage there was demand for T.V. and chain, particularly, colour T.V. and for the same she was consistently harassed and tortured. From the combined reading of these three witnesses, it is indicated that there was a history of violence against the deceased Dipak Devi and it was happening throughout the period intermittently. To address this issue, panchayati was also held. No doubt, the appellants have sought to argue out that she used to ran away from home and that is why, the panchayati was held, but it is clear from the evidence of PW-3, PW-4, and PW-5, that she was precisely running away from her matrimonial home because of the harassment and torture she was facing with regard to the demands of T.V. and chain being made upon her. Hence the existing appellants, who are apparently accomplice in the demands and the harassment and torture that was meted out to her. Therefore, deceased was very fearful and always living in constant nervousness and insecurity and therefore it was quite natural for her to keep running to her mother’s place which happens to be in the same village. 36. The evidence of PW-8 Dr. B.P. Singh has to be seen in the light of the evidence of PW-3, PW-4, and PW-5. Therefore, deceased was very fearful and always living in constant nervousness and insecurity and therefore it was quite natural for her to keep running to her mother’s place which happens to be in the same village. 36. The evidence of PW-8 Dr. B.P. Singh has to be seen in the light of the evidence of PW-3, PW-4, and PW-5. The Doctor in his post-mortem report has attributed the cause of death as asphyxia as a result of strangulation though the Doctor has also deposed that the face was swollen and synosed and there was bleeding present from the nose. The ligature marks were ante-mortem in nature. That abrasions and euchoymosis round about edges of the ligature marks were present. The cause of death of the deceased is asphyxia as a result of strangulation also becomes of more value when it is seen in the light of other evidences. 37. The other evidences which can be seen or read along with the evidence of the Doctor is the photographic evidence that have been brought on record which clearly show that though the deceased is hanging her feet clearly touching the ground which would mean that the deceased Dipak Devi was only hanged with the rope after she had already been killed or murdered. PW-7, who is the witness to the inquest report, has stated that he had seen the dead body which was hanging and the legs were touching the ground and therefore, he is also a witness to the manner in which the body of the deceased was hanging. 38. Deceased was married in the year 1983 and died in 1988. From the evidence of PW-5 Amawati Devi, mother of the deceased, she has deposed that the incident is of 4 years, which occurred in 1988. Regarding date of marriage from the evidence of PW-4, in his deposition of 1992, he has said marriage took place 9 years ago, meaning thereby, or in 1983. Hence, death took place within 7 years of marriage. Defence witness DW-4 Biranchi Mishra has also said in para-2 of his evidence that marriage took place in the year 1983. 39. Regarding date of marriage from the evidence of PW-4, in his deposition of 1992, he has said marriage took place 9 years ago, meaning thereby, or in 1983. Hence, death took place within 7 years of marriage. Defence witness DW-4 Biranchi Mishra has also said in para-2 of his evidence that marriage took place in the year 1983. 39. Another aspect that has to be seen is that though the appellants have denied the offence under Section 304B IPC, they have however admitted or in some way sought to substitute the offence by saying that it was a case of suicide and would fall under Section 306 IPC. Given the fact that PW-3, PW-4, and PW-5 have consistently made out a case for demand of dowry items such as T.V. and chain and accompanying harassment and torture for the same and that the death was within a period of seven years given that she was married in 1983 and died in 1988. Hence, all the ingredients of the offence under Section 304-B IPC are made out. 40. In summing up, I find on appreciation of evidence that appellant in Cr. Appeal (S.J.) No. 702 of 2003 Surendra Mishra, brother-in-law of the deceased had no specific role in the demand of dowry or harassment. Prosecution has failed to prove how he harassed or tortured the deceased. So, benefit of doubt can be given to the appellant Surendra Mishra. 41. Having heard both the counsels, having gone through the evidences on records and in the facts and circumstances, the judgment of conviction dated 09.05.2003 and order of sentence dated 14.05.2003, passed by the learned Additional Sessions Judge, Fast Track Court No.I, Bermo at Tenughat in Sessions Trial Case No. 212 of 1989, as far as appellant in Cr. Appeal (S.J.) No. 742 of 2003 i.e. Suresh Mishra and appellant in Cr. Appeal (S.J.) No. 898 of 2003 i.e. Tapan Mishra are concerned, the convictions of these appellants under Sections 304B/120B and 498A IPC are sustained. Accordingly, based on the aforesaid reasonings, judgment of conviction dated 09.05.2003 and order of sentence dated 14.05.2003, both, are upheld in respect of aforesaid convicted appellants of Cr. Appeal (S.J.) No. 742 of 2003 and Cr. Appeal (S.J.) No. 898 of 2003. The appellants are on bail. Their bail bonds are cancelled. Learned court-below is directed to procure their arrest for carrying out the remaining sentences. 42. Appeal (S.J.) No. 742 of 2003 and Cr. Appeal (S.J.) No. 898 of 2003. The appellants are on bail. Their bail bonds are cancelled. Learned court-below is directed to procure their arrest for carrying out the remaining sentences. 42. Accordingly, Cr. Appeal (S.J.) No. 702 of 2003 is allowed and Cr. Appeal (S.J.) No. 742 of 2003 and Cr. Appeal (S.J.) No. 898 of 2003 are dismissed.