SK REYAZ AND ORS. Vs. STATE OF BIHAR

JUDGEMENT

(1.) These two appeals arise out of Sessions Trial No. 278 of 2009 in which the appellants were found guilty and sentenced by judgment dated 20.09.2010 and order dated 22.09.2010 by the Additional Sessions Judge I, West Champaran at Bettiah for an offence under Ss. 304B/34 of Indian Penal Code (for brevity, IPC). The appellants in Cr Appeal No. 1160 of 2010 are Sk Reyaz @ Sk Reyazuddin and Taharun Nesha @ Tairun Nesha. They are the father -in -law and mother -in -law respectively of the deceased and have been sentenced to 10 years rigorous imprisonment. In Cr Appeal No. 1298 of 2010, the sole appellant is Sk Shabbu @ Sahnawaz Akhtar who has been sentenced to imprisonment for life and is the husband of the deceased Shama Perween.

(2.) We have heard Shri Ajay Kumar Thakur, learned counsel for the appellants, Shri Amarendra Nath Verma, learned counsel for the informant, Shri S N Prasad and Shri A Sharma, learned APPs for the State and perused the records.

(3.) The submission on behalf of the appellants is that in order to raise the presumption in terms of Sec. 113 -B of the Indian Evidence Act, 1872 (for brevity, THE EVIDENCE ACT), the three ingredients of Sec. 304B of IPC are essential first to be established by the prosecution. They are (1) marriage within seven years of death, (2) demand of dowry and (3) cruelty "soon before" death. If anyone of the ingredients are not proved and established by the prosecution, the presumption under Sec. 113 -B of the Evidence Act would not arise as against the accused persons, and, then the onus would entirely be on the prosecution to establish a homicidal death. Submission would, inter alia, further be that the two ingredients, demand of dowry and cruelty "soon before" death, have not at all been established. To the contrary, there are clear evidences of the prosecution witnesses to suggest otherwise. On the other hand, learned counsel for the State and learned counsel for the informant submit that there are sufficient facts on record, duly proved, to satisfy the ingredients and there is no effective rebuttal of the presumption. It may be noted that virtually, when the hearing was concluded, learned counsel for the informant pointed that an interlocutory application had been filed for additional evidence at the appellate stage which is pending. We do not consider it, at this late stage, to pass an order in this regard. The appeals were filed in the year 2010, and the appellants, except the lady, have been in custody for over 6 to 8 years. This interlocutory application was filed in the year 2015, to bring on record certain evidences of other cases which were instituted later on, as between the parties. It does not delve upon the evidence in relation to the incident with which we are concerned. We, therefore, do not consider it proper to pass any order on that interlocutory application.