Judgment :-

Chelameswar, J.

1. The two appellants herein were convicted for the offences under sections 304B and 498A IPC by the Additional Sessions Judge VI, Gaya and the same was continued in appeal by the High Court of Patna.

2. Initially three accused were charged for the offences under sections 328, 304B and 498A Indian Penal Code and sections 3 and 5 of Dowry Prohibition Act on the allegation that they harassed and were responsible for the unnatural death of one Babita Devi, the daughter of PW1 and PW6, mother and father respectively. All three accused were found guilty of the offences they were charged with by the trial court. Each of the accused was awarded punishment for seven years for the offence under section 304B IPC and two years for the offence under section 498A IPC. However, the trial court did not award any separate sentence insofar as the other offence of which the accused were charged of.

3. Aggrieved by the judgment of the trial court dated 5th May 2003 all the three accused carried appeals to the High Court of Patna unsuccessfully.

4. The instant appeal is carried by only two accused Chottan Sao and Kamla Devi who happened to be the deceased Babita Devi’s father-in-law and sister-in-law (husband’s brother’s wife). We are informed that the third accused Suhas Sao, husband of the deceased Babita Devi served the sentence and did not choose to challenge the correctness of the judgment of the High Court. From the proceedings of this Court dated 24.10.2013, it appears that the 1st appellant died during the pendency of this appeal.

5. PW8 Surendra Prasad one of the brothers of the deceased Babita Devi reported on 17.11.1991 to the police station Sherghatty that in the morning of the same day the deceased was beaten up by a lathi and compelled to consume poison which resulted in her death. It is also stated in the report that whenever the deceased Babita Devi came to her parental home, she used to complain that the accused were harassing her with a demand to get more money from her parents coupled with a threat of killing her in the event of her not complying with the demand. On the basis of this complaint, the Sherghatty police registered a case No.166/91. On completion of the investigation, a charge-sheet was filed on 2.11.1994.

6. To establish the guilt of the accused, the prosecution examined in all 13 witnesses including the parents of the deceased (PWs 1 and 6). PW2 and PW3 are sisters-in-law i.e. the wives of two brothers of deceased Babita Devi; PW5 and PW8 are the brothers of the deceased and PW7 is a sister of the deceased. All of them were examined to prove two facts (1) that the marriage of Babita Devi took place some 5 to 6 years prior to her death and (2) that Babita Devi used to complain that the accused were harassing her with a demand of dowry. The said evidence was believed by both the courts. PW4 and PW9 were declared hostile. PW12 and PW13 are the police officers who investigated the case. While PW13 filed charge-sheet against the husband of the deceased and PW12 filed charge-sheet against the other two accused.

7. One disturbing feature of the case is that the doctor who conducted the post-mortem of the body of Babita Devi was not examined at the trial. The post-mortem report (Ex.3) came to be marked at the trial through PW11 Dr. Arbind Prasad, a Professor in Forensic Science Department, M.M.C.H. Gaya, who claimed that he worked with the author (one Dr. Kapildeo Prasad) of the post-mortem report. Dr. Arbind Prasad further deposed that he could and did recognise the handwriting and signature on Ex.3 to be that of Dr. Kapildeo Prasad.

8. The content of the post-mortem is not discussed anywhere in the judgment of the trial court or in the judgment of the High Court. On the other hand, at para 20 of the trial court judgment it is recorded as follows:

“One thing is that from Ext.3, post mortem report it would appear that viscera was sent for post mortem but that report has not been received and no apparent