Amareshwar Sahay, J.

1. All the appellants were tried for the offence under Sections 304-B/34 of the Indian Penal Code for committing the dowry death of Nitu Devi in furtherance of common intention and also for the charges under Sections 498-A/34 of the Indian Penal Code for subjecting Nitu Devi (deceased) for cruelty in connection with demand of dowry.

2. The learned 1st Additional Sessions Judge, Garhwa by his Judgment dated 22.5.2004 in Sessions Trial No. 138/2001 convicted the appellant No. 1, for the offence under Section 304-B, IPC as well as under Section 498-A/34, IPC and sentenced him to undergo R.I. for a period of 10 years for the offence under Section 304-B of the IPC, however no separate sentence was passed for the offence under Section 498-A, IPC.

The appellant Nos. 2 to 5 were acquitted from the charge under Section 304-B, IPC but they were convicted for the offence under Section 498-A/34, IPC and were sentenced to undergo RI for a period of two years each and also to pay fine of Rs. 500/-each in default to undergo S.I. for two months. Against the said judgment and conviction and sentence, the present appeal has been filed by the appellants.

3. The facts in brief are stated herein-below :-

A first information report was lodged by Kashi Nath Singh Agrahari PW 2 on 22.4.2000, alleging therein that his daughter Nitu Devi was married to Pankaj Bibhuti (appellant No. 1) on 26.4.1999 and after the marriage she was living at her in laws place where she resided peacefully for three months. It was stated that when Nitu Devi used to come her parents house (Naihar) she used to complaint that her husband (appellant No. 1) and the in laws (appellant Nos. 2 to 5) used to demand T.V. VCR, Freeze etc as dowry and they also used to threatened that if the demand was not fulfilled then she would be driven out from her matrimonial house. It was further alleged that Nitu Devi used to say that if the demands are not fulfilled then she would not go to her in laws place as she apprehended some danger. However, the informant and his wife performed Bidai of Nitu Devi saying that after delivery some articles would be given.

It is stated that on 19.4.2000 at about 10.00 p.m. the informant received telephonic message that Nitu Devi has sustained burn injury. On this information, the informant PW 2, his wife Saroj Devi PW 4, brother Asharfi Lal PW 3 and Umesh Chandra PW 6 proceeded for the village Nagar Untari, i.e., in laws place of Nitu Devi on their own vehicle. At about 3.00 a.m. they reached near village Hanumantaa, at that time they saw that Nitu Devi in injured condition was being taken to Varanasi on a Jeep accompanied by the mother-in-law Kamla Devi, son-in-law and the brother-in-law Parkash Bibhuti. The informant party also accompanied them to Varanasi where she was admitted in a Government Hospital at Varanasi for treatment but she died during treatment on 20.4.2000 at about 2.45 p.m.

4. The appellants pleaded not guilty and specifically pleaded that appellant No. 2 was a very old man aged more than 90 years and that the appellant No. 1 was living separately from the other appellants and they never demanded any dowry either from the deceased or from her parents. As a matter of fact the deceased died due to illness and heart failure.

5. In order to establish the charges, altogether seven witnesses were examined on behalf of the prosecution and on behalf of the defence three witnesses were also examined, apart from some documents, which were marked exhibits. It is relevant to state that neither the Investigating Officer nor the Doctor who held the Post Mortem were examined on behalf of the prosecution PW 1 and PW 7 is the same person, who was examined twice by the prosecution, firstly, as PW 1 to prove the formal FIR and secondly, as PW 7 to formally prove the Post Mortem Report. As stated earlier, PW 2 is the informant i.e., the father of the deceased Nitu Devi, PW 4 Saroj Devi is the mother of the deceased and wife of the informan