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2019 DIGILAW 845 (JHR)

Gobind Rana v. State Of Bihar (now Jharkhand)

2019-04-09

APARESH KUMAR SINGH, KAILASH PRASAD DEO

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JUDGMENT 1. Heard learned counsel for the appellants Mr. A. S. Dayal assisted by learned counsel Mr. P.S. Dayal and learned Additional Public Prosecutor, Mr. Shiv Kumar Sharma representing the State. 2. The present 3 surviving appellants out of 5 original appellants are assailing their conviction for the charge under Section 304B of the I.P.C and the sentence to undergo R.I. for life awarded by learned Additional Sessions Judge, Chatra vide judgment of conviction dated 27.09.1996 and order of sentence dated 30.09.1996 passed in S.T. Case No. 633 of 1992/ 271 of 1993. 3. Balo Rana (P.W.4), father of the deceased victim Sahodri Kumari is the informant whose written report has led to institution of the formal F.I.R being Chatra P.S. Case No. 24 of 1993 dated 10.04.1993 against 5 accused persons namely Chandar Rana, Gobind Rana, Balkeshwar Rana, Jhandu Rana and Beliya Devi. Informant has inter alia alleged that his daughter victim Sahodri Kumari was married in 1991 with Gobind Rana son of Chandar Rana, village Raksi, P.S. Tandwa. She used to complain about illicit relationship between her husband Gobind Rana and the wife of Dineshwar Rana, elder brother of her husband, whenever she returned to her paternal house. She used to say that for this reason she was regularly ill-treated. On account of this reason during Karma festival prior to Holi, informant had brought his daughter to his place. Informant further asserted that when he had gone to bring her daughter, on seeing them, she started crying and narrated that her husband and mother-in-law used to regularly torture her and pressurize her to bring dowry in the form of cycle and watch from her father. Informant further alleged that his son-in-law on several occasions asked for cycle and watch, though during marriage he had given Rs.15,000/- and a Radio beyond his capacity and still he stated that no sooner the money is arranged, he would give those articles. Informant alleged that seeing the condition of his daughter, he had brought her to her paternal house where she told her mother, brother Kauleshwar Rana, Prem Rana and uncle Sahdeo Rana that her husband was having illicit relationship with the wife of his elder brother and for that reason he always used to beat her so that she does not object to such relationship. Apart from that, he used to ask for dowry in the form of cycle and a watch and ill-treated her. During Holi, his son- in-law along with his brother-in-law came to their house and assured that they will keep his daughter in proper way and previous incidences would not be repeated. It was also stated that relationship with his sister-in-law would not be continued. On such assurance, informant allowed his daughter Sohadri Kumari to go with his son-in-law to her matrimonial house after Holi. At that time also his son-in-law had asked for a cycle and a watch to which informant assured that he would give it later on. Informant further alleged that on 09.04.1993 one Hari Sao, son of Ganesh Sao of the same village Rakshi had come to his village and informed him that his daughter is missing since yesterday evening. After much request he told that she had gone to wash clothes and there was some spot still left, due to which, her husband badly scolded her, where after, she went out of the house and could not be traced. Informant asserted that on 10.04.1993, he along with his cousin brother Sahdeo Rana went to village Raksi where on the way they came to know that dead body of their daughter has been found in the well. On the basis of these allegations, informant alleged that Chandar Rana, son of Yugal Rana; Jhandu Rana; Balkeshwar Rana; Gobind Rana son of Chandar Rana and Beliya Devi, wife of Chandar Rana of village Raksi, P.S. Tandwa have killed his daughter Sahodri Devi for demand of dowry and on account of illicit relationship of his son-in-law Gobind Rana with the wife of his elder brother and thrown her body in the well. 4. On conclusion of the investigation charge-sheet bearing no. 19 of 1993 dated 07.07.1993 and 34 dated 14.10.1993 have been submitted against the accused persons under Section 304B of the I.P.C. After the cognizance and commitment of the case to the Court of learned Additional Sessions Judge, Chatra, charges were framed against all the named 5 charge-sheeted accused persons on 30.05.1994 under Section 304B of the I.P.C. The charges were read over and explained in Hindi to the accused persons to which they pleaded not guilty and claimed to be tried. Thus the accused were put up for trial. 5. Thus the accused were put up for trial. 5. During course of trial, prosecution had examined 8 witnesses in order to prove the case, which are as under: I. Ganesh Yadav (P.W.1) II. Dr. Nand Kishore Pd. Jaiswal (P.W.2) III. Sahdeo Rana (P.W.3) IV. Laxmi Thakur (P.W.4) V. Balo Rana (P.W.5) VI. Dharam Deo Shah (P.W.6) VII. Rajendra Paswan(P.W.7) VIII. Bindeshwari Pd. Mishra(P.W.8) Prosecution had also adduced several documentary evidences up to Ext. 5, which were proved without objection except Ext.5, which are as under: 1.Ext1 is the post mortem report proved by P.W.2 Dr. Nand Kishore Pd. Jaiswal. 2. Ext.2 is the signature of informant BaloRana (P.W.5) on his written report proved by him. 3. Ext.2/1 is the signature of Dharam Deo Shah (P.W.6) on the carbon copy of the inquest report proved by him. 4. Ext. 2/2 is the signature of Rajendra Paswan (P.W.7) on carbon copy of inquest report proved by him. 5. Ext.2/3 is the signature on the formal F.I.R of the Officer-In- Charge, which has proved by Bindeshwari Pd. Mishra (P.W.8) who was the Investigating Officer for the concerned period between 23.05.1993 to 25.06.1993 where after the investigation was handed over to one Jagdish Choubey. 6. Ext.3 is endorsement of Bindeshwari Pd. Mishra (P.W.8) on the written report proved by him. 7. Ext. 4 is the inquest report proved by Bindeshwar Pd. Mishra (P.W.8) 8. Ext.5 is the challen for sending the dead body for post mortem examination which has also been proved by Bindeshwar Pd. Mishra (P.W.8) with objection. 6. Upon conclusion of the prosecution evidence,statement of the accused persons under Section 313 Cr.P.C. was recorded. Their case was of total denial of the materials brought on record during trial. They however did not explain any circumstances relating to the death of Sahodri Kumari, daughter of the informant 7. Learned Trial Court upon consideration of the evidence on record was pleased to convict the 5 accused persons for the charge under section 304 B of the I.P.C and sentenced to them undergo R.I for life. 8. During course of arguments, learned counsel for the appellants has inter alia made following submissions: It is submitted that the case of the prosecution is not sustainable in law and on facts on the basis of materials brought on record. There is no eye witness to the occurrence. 8. During course of arguments, learned counsel for the appellants has inter alia made following submissions: It is submitted that the case of the prosecution is not sustainable in law and on facts on the basis of materials brought on record. There is no eye witness to the occurrence. The ingredients of the charge under Section 304B of the I.P.C has not been proved. Hari Sao, who allegedly informed the informant about missing of his daughter Sahodri Kumari has not been examined by the prosecution. The source of information is doubtful. The prosecution evidence also does not show any incriminating materials as against the two other appellants Balekeshwar Rana and Jhandu Rana who have been wrongly convicted for the charge simply on the ground that they are sons of accused Chandar Rana and brother of accused Gobind Rana, son -in-law of the informant. The prosecution has not brought on record any material to show demand of dowry neither were any complaints to any authority or even the mukhiya of the panchayat. There is no instance of any panchayati either in relation to such demand. The prosecution alleged illicit relationship between the accused Gobind Rana and the wife of his elder brother Dineshwar Rana, but that allegation has not been proved during trial. Those two persons have neither been made accused nor been made witness in this case. The allegation in the written report and the statement of the informant Balo Rana (P.W.5) during trial, if read together, show complete absence of torture in connection with demand of dowry soon before the death of Sahodri Kumari by her husband or her in-laws. The incidence narrated by the informant in his written report and also during trial as P.W.5 relates back to the festival of Karma which usually coincides in the month of August i.e., in the year 1992. The victim Sahodri was taken to her matrimonial home as per the allegation of the informant after Holi before the occurrence i.e., in the year 1993 but at that point of time there was no proof of any torture for demand of dowry. The ingredients of Section 304-B of the I.P.C that the victim was subjected to torture soon before her death in connection with the demand of dowry has also not been established. The ingredients of Section 304-B of the I.P.C that the victim was subjected to torture soon before her death in connection with the demand of dowry has also not been established. The learned Trial Court has committed an error in recording conviction only because the death of Sahodri, wife of accused Gobind Rana took place within 3 years of her marriage in the year 1991, though apart from this, neither the demand of dowry nor any torture soon before her death in connection with demand of dowry has been established by the prosecution. In such circumstances, the presumption is not cast upon the accused under Section 113-B of the Evidence Act to explain the circumstances of death. The post mortem examination of the victim undertaken after 50-60 hrs, though explained instances of certain ante mortem injuries on the body of Sahodri (deceased) but they are inconsistent with the evidence on record and the cause of death which was due to drowning. The victim went missing in the previous evening on 09.04.1993 and as per the statement of Dharam Deo Sah (P.W.6) and Rajendra Paswan (P.W.7), she appeared to have suffered fall while trying to fetch water from well which is about 150 yards from the house of Dharam Deo Sah (P.W.6). Statement of Laxmi Thakur (P.W.4), Dharama Deo Sah (P.W.6) and Rajendra Paswan (P.W.7) who are independent witnesses and belonged to the same village and are neighbours of the accused persons did not support the case of the prosecution that there was torture or demand of dowry soon before her death. Laxmi Thakur (P.W.5) has not been declared hostile by the prosecution. Therefore there are no independent witnesses who have supported the case of the prosecution. Since the incidence is seen by no one, conviction of the accused persons relying solely on the uncorroborated testimony of the informant Balo Rana (P.W.5) or Ganesh Yadav (P.W.1) and Sahdeo Rana (P.W.3) are not sufficient to uphold the conviction. 9. The accused persons have suffered prejudice due to non- examination of the other Investigating Officer. Since P.W.8 Bindeshwari Pd. Mishra who was the Officer-In-Charge of the P.S and had conducted investigation for a brief period only for about one month between 23.05.1993 to 25.06.1993, he has not been able to prove the place of occurrence. The inquest report, which has been brought on record by Bindeshwari Pd. Since P.W.8 Bindeshwari Pd. Mishra who was the Officer-In-Charge of the P.S and had conducted investigation for a brief period only for about one month between 23.05.1993 to 25.06.1993, he has not been able to prove the place of occurrence. The inquest report, which has been brought on record by Bindeshwari Pd. Mishra (P.W.8) and Dharam Deo Shah (P.W.6) inquest witness, on minute scrutiny, does not show presence of injury on the upper part of the body of the deceased . The inquest report is the important document immediately after retrieval of the dead body. The post mortem report prepared after 50-60 hours by Dr. Nand Kishore Pd. Jaiswal (P.W.2) with findings of ante mortem injury caused 4 hours before the death is not fit to be given credence. The injury found on the dead body whose post mortem was conducted after 50-60 hours could not be ante mortem in nature but may be as a result of the fall in the well. If death of the victim was due to accident while fetching water from the well, implication of all these accused persons and conviction on such unreliable and sketchy evidence is wholly unsafe. Therefore, they are entitled to be acquitted by granting them benefit of doubt. 10. Learned Additional Public Prosecutor has placed the entire evidence on record in order to support the findings of conviction recorded by the learned Trial Court. According to him, prosecution has been able to prove its case beyond all reasonable doubt on the basis of materials brought on record. The victim died within 3 years of her marriage on 09.04.1993 while residing in the house of appellants, her in- laws. Prosecution has been able to prove the demand of dowry i.e. cycle and watch in connection with which, victim was ill-treated and also tortured by the accused persons, in particular the accused Govind Rana, her husband and mother-in-law. The incidence of torture were also shown to be soon before her death and had proximate relationship with the cause of death. In such circumstances, the accused persons/ appellants had under section 113-B of the Evidence Act to explain the circumstances of death since presumption has been cast against them that they had caused dowry death. The accused persons have completely failed to rebut this presumption. In such circumstances, the accused persons/ appellants had under section 113-B of the Evidence Act to explain the circumstances of death since presumption has been cast against them that they had caused dowry death. The accused persons have completely failed to rebut this presumption. Nothing has been elucidated by the defence during cross-examination of the prosecution witnesses, nor has any explanation been furnished by the accused persons during their statement under section 313 of the Cr.PC. An additional burden was also cast upon the accused persons specially Gobind Rana under section 106 of the Evidence Act since the victim was residing in her matrimonial house at the time of death. Dowry death has been treated as distinct species of homicidal death by the Legislature by incorporating the provisions under section 304-B of the I.P.C. Since the ingredients of the offence has been proved beyond reasonable doubt, the accused persons cannot escape conviction. Accused persons had also not been able to show any prejudice due to non-examination of the other Investigating Officer as one of the Investigating Officers P.W.8 Bindeshwari Prasad Mishra who was the Officer-In-Charge, has been duly examined without being discredited or put any searching question during his cross- examination relating to the time of occurrence, place of occurrence, manner of occurrence, etc. 11. The postmortem report which has been brought on record by the prosecution through P.W.2 Dr. Nand Kishore Pd. Jaiswal, adequately proves that the victim died due to drowning in well and had sustained ante mortem injuries, 4 hours prior to the death. The defence has not discredited the expert evidence of Dr. Nand Kishore Pd. Jaiswal (P.W.2) on the nature of postmortem report. Both testimony of the prosecution witnesses and medical evidence are in conformity. The medical evidence does not completely overrule the statement of the prosecution witnesses on the cause of death. As such, the case of the prosecution is full proof. The appeal is devoid of merit and is fit to be dismissed. 12. Both testimony of the prosecution witnesses and medical evidence are in conformity. The medical evidence does not completely overrule the statement of the prosecution witnesses on the cause of death. As such, the case of the prosecution is full proof. The appeal is devoid of merit and is fit to be dismissed. 12. We have considered the submission of learned counsel for the parties; gone through the materials on record including the fardbeyan; framing of the charge; evidence of 8 prosecution witnesses and prosecution exhibits up to Ext.5; statement of the accused persons under Section 313 Cr.P.C and also perused the impugned judgment of conviction and order of sentence in order to test, whether prosecution has been able to bring home the charge against the accused persons beyond all reasonable doubt? 13. Upon careful consideration of the materials on record, we proceed to examine, whether necessary ingredients of the charge under section 304-B of the I.P.C stands established by the prosecution and, whether the accused persons have discharged their burden under section 113-B of the Evidence Act and been able to rebut the presumption raised against them. From the evidence on record, it is not a matter of dispute that the victim was married in 1991 and died within 7 years of her marriage in 1993 on 9 th April. The prosecution evidence in the nature of P.W.5, father of the victim namely, Balo Rana and that of P.W.1 Ganesh Yadav and P.W.3 Sahdeo Rana, all read together has substantiated the allegation made in the written report i.e., there was a demand of dowry in the form of cycle and a watch by the accused Govind Rana, i.e. son- in-law of the informant, BaloRana (P.W.5) and husband of the deceased Sahodri Kumari . The victim had narrated the incidence to her father on her return to her paternal house. She had also narrated the incidence when the informant had gone during the festival of Karma in 1992 to bring her back from her matrimonial house when victim started crying and complained about the acts of torture due to non-fulfillment of demand of dowry and also illicit relationship of her husband with the wife of his elder brother Dineshwar Rana. This part of the allegation relating to illicit relationship however remained unsubstantiated during trial. This part of the allegation relating to illicit relationship however remained unsubstantiated during trial. Further evidence on record of Ganesh Yadav (P.W.1), Sahdeo Rana (P.W.3) and Balo Rana (P.W.5), informant indicates that just before the occurrence on 09.04.1993, the accused Govind Rana had gone to bring his wife Sahodri Kumari from her paternal house when there were assurance given by the accused that he will not torture her and also not indulge in illicit relationship any further with his sister-in-law. At that time also accused Gobind Rana had demanded a cycle and a watch which the informant had assured to give it later on. The proximity of time between the occurrence on 09.04.1993 and her arrival to the matrimonial home just after Holi on the assurance of the accused Govind Rana and his brother-in-law ( who has not been made accused in this case) that she will not be tortured, in the light of the judgment rendered by the Apex Court in the case of Rajinder Singh Versus State of Punjab [ (2015) 6 SCC 477 were sufficient to fulfill the ingredients of section 304-B of the I.P.C. Soon before her death, deceased was subjected to cruelty and harassment by her husband and relatives of her husband and that such cruelty or harassment was in connection with the demand for dowry. 14. In the opinion of the Apex Court in the case of Rajinder Singh (Supra), the expression ''soon before '' is not to be equated with ''immediately before'', nor the Legislature has used the word ''soon after'' in the penal provision under section 304-B of the I.P.C. The expression ''soon before'' being a relative term cannot have a fixed formula and time lags may differ from case to case which must be kept in mind while examining each case of dowry death. However, what is necessary to attract such provision is proximate and live link between the effect of cruelty based on dowry demand and the consequential death which is required to be proved by the prosecution. Opinion of the Apex Court in the case of Rajinder Singh (Supra) at para- 21 to 25 is extracted with profit hereunder: 21. Coming now to the other important ingredient of Section 304- Bwhat exactly is meant by "soon before her death"? 22. This Court in Surinder Singh v. State of Haryana had this to say: (SCC pp. 137-39, paras 17-18) 17. Coming now to the other important ingredient of Section 304- Bwhat exactly is meant by "soon before her death"? 22. This Court in Surinder Singh v. State of Haryana had this to say: (SCC pp. 137-39, paras 17-18) 17. "Thus, the words soon before appear in Section 113-B of the Evidence Act, 1872 and also in Section 304-B IPC. For the presumptions contemplated under these sections to spring into action, it is necessary to show that the cruelty or harassment was caused soon before the death. The interpretation of the words soon before is, therefore, important. The question is how soon before? This would obviously depend on the facts and circumstances of each case. The cruelty or harassment differs from case to case. It relates to the mindset of people which varies from person to person. Cruelty can be mental or it can be physical. Mental cruelty is also of different shades. It can be verbal or emotional like insulting or ridiculing or humiliating a woman. It can be giving threats of injury to her or her near and dear ones. It can be depriving her of economic resources or essential amenities of life. It can be putting restraints on her movements. It can be not allowing her to talk to the outside world. The list is illustrative and not exhaustive. Physical cruelty could be actual beating or causing pain and harm to the person of a woman. Every such instance of cruelty and related harassment has a different impact on the mind of a woman. Some instances may be so grave as to have a lasting impact on a woman. Some instances which degrade her dignity may remain etched in her memory for a long time. Therefore, soon before is a relative term. In matters of emotions we cannot have fixed formulae. The time-lag may differ from case to case. This must be kept in mind while examining each case of dowry death. 18. In this connection we may refer to the judgment of this Court in Kans Raj v. State of Punjab where this Court considered the term soon before. The relevant observations are as under: (SCC pp. 222-23, para 15) 15. "Soon before" is a relative term which is required to be considered under specific circumstances of each case and no straitjacket formula can be laid down by fixing any time-limit. The relevant observations are as under: (SCC pp. 222-23, para 15) 15. "Soon before" is a relative term which is required to be considered under specific circumstances of each case and no straitjacket formula can be laid down by fixing any time-limit. This expression is pregnant with the idea of proximity test. The term "soon before" is not synonymous with the term "immediately before" and is opposite of the expression "soon after" as used and understood in Section 114, Illustration (a) of the Evidence Act. These words would imply that the interval should not be too long between the time of making the statement and the death. It contemplates the reasonable time which, as earlier noticed, has to be understood and determined under the peculiar circumstances of each case. In relation to dowry deaths, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be "soon before death" if any other intervening circumstance showing the non-existence of such treatment is not brought on record, before such alleged treatment and the date of death. It does not, however, mean that such time can be stretched to any period. Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time which, under the circumstances, be treated as having become stale enough. Thus, there must be a nexus between the demand of dowry, cruelty or harassment, based upon such demand and the date of death. The test of proximity will have to be applied. But, it is not a rigid test. It depends on the facts and circumstances of each case and calls for a pragmatic and sensitive approach of the court within the confines of law." 23. In another recent judgment in Sher Singh v. State of Haryana, this Court said: (SCC p. 739, para 16) 16. But, it is not a rigid test. It depends on the facts and circumstances of each case and calls for a pragmatic and sensitive approach of the court within the confines of law." 23. In another recent judgment in Sher Singh v. State of Haryana, this Court said: (SCC p. 739, para 16) 16. " We are aware that the word soon finds place in Section 304-B; but we would prefer to interpret its use not in terms of days or months or years, but as necessarily indicating that the demand for dowry should not be stale or an aberration of the past, but should be the continuing cause for the death under Section 304-B or the suicide under Section 306 IPC. Once the presence of these concomitants is established or shown or proved by the prosecution, even by preponderance of possibility, the initial presumption of innocence is replaced by an assumption of guilt of the accused, thereupon transferring the heavy burden of proof upon him and requiring him to produce evidence dislodging his guilt, beyond reasonable doubt." (at Scale p. 262) 24. We endorse what has been said by these two decisions. Days or months are not what is to be seen. What must be borne in mind is that the word "soon" does not mean "immediate". A fair and pragmatic construction keeping in mind the great social evil that has led to the enactment of Section 304-B would make it clear that the expression is a relative expression. Time-lags may differ from case to case. All that is necessary is that the demand for dowry should not be stale but should be the continuing cause for the death of the married woman under Section 304-B. 25. At this stage, it is important to notice a recent judgment of this Court in Dinesh v. State of Haryana, in which the law was stated thus: (SCC p. 537, para 15) 15. "The expression soon before is a relative term as held by this Court, which is required to be considered under the specific circumstances of each case and no straitjacket formula can be laid down by fixing any time of allotment. It can be said that the term soon before is synonymous with the term immediately before. "The expression soon before is a relative term as held by this Court, which is required to be considered under the specific circumstances of each case and no straitjacket formula can be laid down by fixing any time of allotment. It can be said that the term soon before is synonymous with the term immediately before. The determination of the period which can come within term soon before is left to be determined by the courts depending upon the facts and circumstances of each case." We hasten to add that this is not a correct reflection of the law. "Soon before" is not synonymous with "immediately before". 15. When these ingredients are satisfied by the prosecution, on the basis of the evidence on record read together with the medical evidence of P.W.2 who conducted postmortem examination on the dead body of the deceased Sahodri Kumari, there is a presumption under section 113-B of the Evidence Act that such persons had caused the dowry death. The accused persons had to rebut the presumption by adequately proving the circumstances of her death. The accused persons/ appellants were required to explain the circumstances which led to her death. It has been proved by the prosecution that victim died in unnatural circumstances. The dead body was recovered from a well and as per the inquest report (Ext.4) and medical evidence of Dr. Nand Kishore Pd. Jaiswal (P.W.2) who proved the postmortem report, it showed following injuries which were ante mortem in nature and caused within 4 hours before death by hard and blunt substance. It is proper to extract the postmortem report in extenso, hereunder, as it has a vital bearing on the prosecution case. "(i) There was abrasion and bruise over right side leg extending upto right cheek about 2"x1" brownish red in colour. (ii) Abrasion over left side of neck " x " reddish brown in colour On dissection: (i) Rigormortis absent over neck and upper limbs. Weakly present over lower limb. Body was putrefied and foul smell from body was emitting out. Whole body blotted, blackish discolourtion of skin at places. Multiple blobs filled with reddish coloured fluid over body with peeling of canticle at places were also found. (ii) Eyes were closed. Eye lids were swollen. Eye balls were soft and yielding to the finger. Pupils were dilated. (iii) Bloody foam coming out from nostrils and mouth. Whole body blotted, blackish discolourtion of skin at places. Multiple blobs filled with reddish coloured fluid over body with peeling of canticle at places were also found. (ii) Eyes were closed. Eye lids were swollen. Eye balls were soft and yielding to the finger. Pupils were dilated. (iii) Bloody foam coming out from nostrils and mouth. Foam was whitish tinged with blood, tenacious and lathery. (iv) Distal portion of upper and lower limbs were sodden and corrugated. (v) Larynx and trachea - Mucus membrane & larynx and trachea was congested and it contained fine whitish froth. (vi) Lungs - Both lungs oedematus, congested and upon cut section exuded foamy blood. (vii) Neck veins - gorged with dark fluid blood. (viii) Stomach - contained watery fluid about 200 M.L and semi digested food, particles and gas. (ix) Duodena contained watery fluid and gas. (x) Brain was congested. (xi) Abdominal wall - upon opening abdominal cavity foul smelling gas came out with hissing sound. (xii) Large intestine contained gas. Liver was congested. Spleen was also congested. (xiii) Kidney was congested. (xiv) Bladder (urinary) was empty. (xv) Organs of hibernation - nothing significant was found. In his opinion, the cause of death was due to asphyxia resulting from drowning in water. The injuries over neck were caused by hard and blunt substance. The age of ante mortem injuries were within four hours before death. Time elapsed since death - about 50 to 60 hours. (4) Aforesaid dead body was brought by Chowkidar 7/5 Chowkidar Fauzdar Dusadh and relative Basant Rana. It was identified by them. (5) This P.M. Report is in his writing and signature marked as Ext.1. 16. Laxmi Thakur (P.W.4), Dharam Deo Sah (P.W.6) and Rajendra Paswan (P.W.7) are co-villagers whose evidence have to be read with caution and care being the neigbourers of the accused persons. They may or may not have been the witnesses to the demand of dowry or torture. (5) This P.M. Report is in his writing and signature marked as Ext.1. 16. Laxmi Thakur (P.W.4), Dharam Deo Sah (P.W.6) and Rajendra Paswan (P.W.7) are co-villagers whose evidence have to be read with caution and care being the neigbourers of the accused persons. They may or may not have been the witnesses to the demand of dowry or torture. Dharam Deo Sah (P.W.6) and Rajendra Paswan (P.W.7) who are witnesses to the inquest report, have tried to explain the death of the victim due to breaking of brick on parapet of the well, but they do not described the presence of either any bucket or rope on the well or anything of such nature which was recovered from inside the well along with the dead body to justify the presence of the deceased alone on the well to fetch water. Here lies the burden upon the accused persons to explain as to why deceased went there alone and how she fell down in the well. The accused persons in their cross- examination of the prosecution witnesses or in the statement under section 313 of the Cr.PC have failed to explain any such circumstances to discharge the burden and rebut the presumption raised against them under section 113-B of the Evidence Act. 17. While scanning the material evidence on record, we however find practically no evidence against the appellants Balkeshwar Rana and Jhandu Rana relating to their complicity in the offence. The informant has just made reference of name of these two accused persons in the written report, but in the body of the written report, made no categorical allegation against them, nor supported the charge during evidence in trial. Other material prosecution witnesses in particular Ganesh Yadav (P.W.1) and Sahdeo Rana (P.W.3), uncle of the deceased, have also not proved any incriminating material against these two accused persons. Evidence on record brought in support of the original story set up by the prosecution only nails the guilt of the accused Govind Rana who was the husband of the deceased. 18. Though, learned counsel for the appellants has impressed upon us that the defence has suffered prejudice due to non- examination of the Investigating Officer. Evidence on record brought in support of the original story set up by the prosecution only nails the guilt of the accused Govind Rana who was the husband of the deceased. 18. Though, learned counsel for the appellants has impressed upon us that the defence has suffered prejudice due to non- examination of the Investigating Officer. We however find that even though one of the Investigating Officer namely Bindeshwari Prasad Mishra (P.W.8) who was the Officer-In-Charge of Tandwa Police Station, has been examined and has proved the signature of BaloRana on the written report, which has been marked as Ext.2 without objection; his handwriting and signature on the endorsement of written report, which has been marked as Ext.3; the inquest report, which has been marked as Ext.4; Ext.5 which is challan of sending the dead body for postmortem examination admitted with objection, no such materials have been elucidated during cross-examination by the defence to substantiate that the defence suffered prejudice due to non-examination of the other Investigating Officers. 19. As observed hereinabove, Dharam Deo Sah (P.W.6) and Rajendra Paswan (P.W.7) who belong to the village of the accused persons have proved the recovery of the dead body from the well which was about 150 meters from the house of Dharam Deo Sah (P.W.6). As such, the place of occurrence has adequately been proved. Non-examination of Hari Sao who gave information to the informant also does not cast any prejudice to the accused persons. The appellant Govind Rana was required under section 106 of the Evidence Act to show the circumstances especially within his knowledge relating to the cause of death. The accused persons from their side have also not adduced Hari Sao, though it has been stated that he is the resident of the same village. It is also pertinent to observe her that the accused husband Govind Rana has also failed to explain the circumstances leading to the death of the victim Sahodri Kumari in his statement under section 313 of the Cr.PC. 20. On a detailed analysis of the entire materials on record, we are satisfied that the conviction of the appellant Govind Rana is sustainable in law and on facts. However, on the basis of the discussion made above, we are of the opinion that the prosecution has not been able to bring home the charge against the remaining two appellants namely, Balkeshwar Rana and Jhandu Rana. However, on the basis of the discussion made above, we are of the opinion that the prosecution has not been able to bring home the charge against the remaining two appellants namely, Balkeshwar Rana and Jhandu Rana. As such, the appellants Balkeshwar Rana and Jhandu Rana are acquitted of the charges. The appellants Balkeshwar Rana and Jhandu Rana, who are on bail, are discharged from the liability of their bail bonds. 21. So far as the conviction of appellant Gobind Rana is concerned, learned counsel for the appellant has argued on the point of sentence and submitted that the sentence of R.I. for life deserved to be reduced as the incidence is of 26 years back. The learned Trial Court did not record any specific reason for giving maximum punishment under Section 304B of the I.P.C. Learned counsel for the appellant has placed reliance upon the case of Smt. Shanti and another Vrs. State of Haryana reported in 1991 Criminal Law Journal 1713; NazarVrs. State of Kerela & another reported in (2005) 12 SCC 476 and Manoj and others Vrs. State of Haryana reported in (2013) 9 SCC 190 . Based on these decisions it has been submitted that the manner of death is not brutal to justify the severe sentence of R.I. for life imposed by the learned Trial court. The deceased died as a result of drowning due to fall in the well. The appellant/husband has not been found to have committed such mental or physical torture which would justify the maximum sentence for an offence under Section 304 B I.P.C. The appellant has undergone custody in total for about 7 years. As such the sentence of R.I. for life should be modified to the period already undergone as it would serve the interest of justice. 22. We have considered the submissions of learned counsel for the appellant and learned Additional Public Prosecutor representing the State on the point of sentence. We find substance in the plea raised on behalf of the appellant on the point of sentence. 22. We have considered the submissions of learned counsel for the appellant and learned Additional Public Prosecutor representing the State on the point of sentence. We find substance in the plea raised on behalf of the appellant on the point of sentence. On due considerations of the attendant circumstances and on perusal of the decisions rendered by the Apex Court in the case of Smt. Shanti (supra), Nazar (supra) and Manoj and others (supra), as cited by the appellant, we are of the considered view that the sentence of R.I for life imposed by the learned Trial Court should be modified to that of 10 years of R.I. in the facts and circumstances of the case as it would meet the ends of justice. Accordingly the sentence of R.I. for life upon the appellant Gobind Rana is modified to R.I for 10 years. The appellant Gobind Rana who is on bail, his bail bonds are cancelled. He should be taken into custody to serve the remaining part of the sentence. 23. This appeal is partly allowed in the manner indicated herein above. Let lower court records be sent to the concerned court along with the copy of this judgment.