Anil Kumar Tiwary vs The State of Bihar

S.N. Jha and T.P. Singh, JJ.—The sole Appellant has been convicted u/s 304B of the Indian Penal Code and sentenced to rigorous imprisonment for life.

The prosecution was set in motion on 8.6.94 on the fardbeyan of P.W. 8 Dukhan Manjhi, a village chaukidar, who stated that the Appellant was married with Sudha Devi about six years ago. Their conjugal life was not cordial. In the preceding night he, along with family members poured Kerosne and set her on fire. The information about the incident was received at the police station at 5.55 A.M. on receipt of which the Investigating Officer of the case came to the village of occurrence, formally recorded the fardbeyan there at 10 A.M. The fardbeyan version was supported by father and uncle of the deceased, namely, Suresh Chandra Tiwary and Awadhesh Chandra Tiwary, who were examined as P.Ws. 2 and 3. In their evidence they stated that right since the time of marriage the Appellant had been demanding dowry and on account of nonpayment thereof he and other in-laws of the deceased used to torture her.

In view of the nature of allegations by the father and uncle, the police submitted charge sheet u/s 304B of the Indian Penal Code against the Appellant and other in-laws who were thus put on trial.

At the trial besides Suresh Chandra Tiwary and Awadhesh Chandra Tiwary, the prosecution examined four neighbours, namely, Prabhu Nath Tiwary, Bhikhari Tiwary, Ashok Tiwary and Bharat Tiwary as P.Ws. 1, 4, 6 and 7. The prosecution also examined the doctor who held post-mortem on the dead body of the deceased and the said chaukidar who had lodged fardbeyan as P.Ws. 5 and 8. At the conclusion of the trial Appellant was convicted and sentenced in the manner indicated above, while the in-laws accused were acquitted.

In the facts and circumstances of the case we do not propose to set out prosecution evidence in detail as we are of the view that the conviction of the Appellant u/s 304B of the Indian Penal Code is fit to be set aside on a short ground. Though in the fardbeyan, Chaukidar stated that the Appellant''s marriage with Sudha Devi took place six years before the occurrence and the same was the version of the father, uncle Awadhesh Tiwary gave a different version in his cross examination when he stated that marriage had taken place in 1986. As a matter of fact the Appellant has brought on record invitation card with respect to marriage between Appellant and Sudha Devi according to which marriage was solemnised on 21.5.1986. We are satisfied about the defence case in this regard. This fact alone is sufficient to take the case out of pole of Section 304 of the Penal Code.

From a bare reading of provision of Section 304B of the Indian Penal Code it is manifest that besides other ingredients the prosecution is required to prove that the marriage had taken place within seven years of the occurrence. It is only when the essential ingredients are proved that the onus passes to the accused to prove his defence. In the facts and circumstances of the case we are satisfied that the marriage between Appellant and Sudha Devi was solemnised in 1986. The occurrence having taken place on 8.6.1994, the offence u/s 304B of the Penal Code thus was not made out.

Sri Lala Kailash Bihari Prasad, learned Counsel for the State, however, submitted that even if Section 304B of the Penal Code is not attracted, the Appellant may be convicted u/s 302 of the Indian Penal Code. We are unable to accept this submission. The offence envisaged in Section 304B of the Penal Code is a completely different offence compared to one punishable u/s 302 of the Penal Code. In any case, for convicting accused u/s 302 of the Indian Penal Code the prosecution is required to prove its case beyond all reasonable doubts. In the instant case there are materials to suggest that it is the accused who sent information about death of the deceased to the police station through chaukidar. He also gave information to the deceased''s father. Though death apparently took place sometime in the night, no attempt was made by them to remove the dead body and dispose it of. The Investigating Officer found the dead body at 10 A.M. when he reached at the place of occurrence. Counsel for the Appellant submitted that it appears that the deceased had committed suicide. In view of the letter that the deceased wrote to her uncle P.W. 3, the possibility cannot be ruled out.

It will not be out of place to mention that the Appellant has remained in custody through-out since the time of occurrence, i.e. for eight years. Even if he was guilty of any kind of cruelly towards his wife, he has suffered enough.

In the result, this appeal is allowed, the impugned conviction and sentence awarded to the Appellant are set aside and he is acquitted of the charge. He is directed to be released forthwith unless wanted in any other case.