JUDGMENT

Rajendra Saxena, J.

1. Appellant Jai Ram. his father mother and brother viz; Neeku Ram, Smt Surji and Menpal respectively faced trial before the learned Addl. Sessions Judge Raisinghnagar for the offences Under Sections 304B and 498A. IPC. The learned trial Judge vide his judgment dated 1-7-1992 acquitted Neeku Ram. Smt. Surji and Menpal but found appellant Jai Ram guilty for the offences Under Sections 304B and 498A. IPC and sentenced him to seven years' rigorous imprisonment on the first count and to two years' rigorous imprisonment and a fine of Rs. 200/- and in default to further undergo one month's R. I. on the second count and also directed that both the substantive sentences shall run concurrently.

2. The facts of this case are short and simple and can be recapitulated within a narrow compass. Smt. Badu was married to appellant Jai Ram about two and a half years prior to her death, which took place on 17-9-1991 in the house of her husband situated in Chak 3 S. J. M. It is alleged that co-accused Neeku Ram was not satisfied with the dowry given by Sultana Ram, the father of the deceased, in the marriage and on the day of marriage, he had shown his resentment and dissatisfaction. It is alleged that the appellant and co-accused Neeku Ram, Smt. Surji and Menpal used to maltreat the deceased by passing taunts towards her that she had not brought sufficient dowry. It is also alleged that Jai Ram made a demand for motor cycle/scooter, which was not fulfilled.

3. It is the case of the prosecution that on 17-9-1991 at about 4 P.M., Hari Ram Sansi r/o Chak 3 S. J. M. came to PW 1 Sultana Ram and informed that Smt. Badu had an adverse effect of spray and that she had been taken to Hospital 365-Head. Thereupon, Sultana Ram came to the bus stand, where four persons, who were residents of Chak 3 S. J. M. and had come on a tractor, informed him that they had come to fetch him. Thereupon, Sultana Ram accompanied them and went to the 'Dhani' of co-accused Neeku Ram situated in 3 S. J. M., where he found that his daughter Smt. Badu was lying dead in the courtyard. After seeing the dead body of his daughter, sultana Ram was perturbed and he left that place saying that he would bring his relatives. Thereafter, Sultana Ram lodged an oral report Ex. P. 1 to the S. H. O., P. S., Rawla on 18-9-1991 at about 8-30 A. M., wherein he also informed that co-accused Neeku Ram had an evil eye on his daughter Smt. Badu and had tried to catch hold of her hand in the past. He further informed that the appellant, his parents, his brother Menpal and Menpal's wife have either maltreated Smt. Badu for dowry or she being disgusted from the dowry demands, might have consumed spray and embraced death. Thereupon, formal FIR Ex. P. 1 was drawn and a case u/Section 304B was registered against the appellant and four other accused persons. On 18-9-1991 PW 5 Sanjay Purohit, S.D.M., Raisinghnagar and PW 6 Devendra Singh. Addl. S. P. along with the doctor reached the place of occurrence. The Addl. S. P. after inspecting the site, prepared site plan and memo thereof Ex P 7 as also the memo of dead body Ex. P.2 and Panchayat Nama Ex. P. 3.

4. On the same day at 2.45 P.M., PW 2 Dr. Balwant Singh M.O., P. H. C. Ravlamandi conducted the post mortem examination of the dead body of Smt. Badu along with Dr. Rajesh Gaur, M. O., P. H. C, Gharsana. They noticed that her pupils were dilated, subconjutinal haemorrhage was present, blood mixed froth was oozing out from her nostrils and that vaginal discharge was also coming out. The doctors prepared the vaginal smear slide for detection of spermatozoa. They found the following injuries on her body :

1. Multiple abrasions 1/2cm x 1/2cm on medial side of left elbow;

2. multiple abrasions 1/2cmx 1/2cm on lateral side of left elbow;

3. multiple abrasions 1/2cmx 1/2cm on lateral side of left upper arm;

4. multiple abrasions 3/4cmx 1/2cm on lateral side of left ankle joint;

5. abrasion2cmx 1 1/2cm on lateral side of left buttock;

6. abrasion 1/2cm x 1/2cm on the little finger of right foot; :

7. multiple abrasions 1/2cmx 1/2cm in front of neck;

8. multiple abrasions 1/2cm x 1/2cm on left side of neck;

9. abrasion 2cm x lemon the left shoulder:

10. abrasion 2cm x 1/4cm on left scapular area.

All those injuuries were simple caused by blunt object and ante mortem in nature. The doctors also found that her both the lungs were congested. The doctors vide post mortem report Ex. P.6 opined that the cause of her death was asphyxiadue to organo phosphorus poisoning. The visceras were preserved and sent for chemical examination for confirmation.

5. After completion of the investigation, the police filed the challan against the appellant and aforementioned co-accused persons in the court of learned MJM, Anopgarh, who committed the case to the learned trial Judge. The appellant and co-accused Neeku Ram, Smt. Surji and Menpal denied the indictment for the offence Under Section 498A and 304B r/w 34, IPC and claimed trial. The prosecution examined as many as seven witnesses. The appellant in his plea recorded Under Section 313, Cr. PC denied the circumstances appearing against him in the prosecution evidence. He further denied to have made any demand for dowry or to have subjected his wife Smt. Badu to cruelty or harassment. On the other hand he asserted that he never quarrelled with his wife, that they had cordial relations; that he was posted as a teacher in the Govt. Primary School, 5 K. L. D.; that two days prior to the alleged occurrence, Smt. Badu had gone to visit 'Runecha fair,' where they had prayed for being blessed with a son and that thereafter on the day of the alleged occurrence, he was not present in his house but was on duty in the school. No evidence was adduced in defence.

6. The learned Sessions Judge disbelieved the omnibus evidence against the co-accused persons for the alleged maltreatment or harassment to the deceased and acquitted them. However, the learned Sessions Judge was of the view that there might have been some demand for giving motor cycle/ scooter and that co-accused persons might also have taunted the deceased but the appellant being her husband, it was his duty to see that she was not subjected to any cruelty or harassment. He further held that from the evidence, it was established that the deceased was subjected to cruelty and that appellant's wilful conduct was of such a nature which was likely to persuade her to commit suicide. Therefore, he found the appellant guilty for the offences Under Sections 498A and 304B, IPC and sentenced him in the manner detailed above. Hence this appeal.

7. I have heard Mr. M. K. Garg learned Counsel for the appellant and Mr. S. M. Singvi, learned Public Prosecutor and perused the record of the learned lower Court in extenso.

8. Mr. Garg has vehemently contended that the learned Sessions Judge has not correctly discussed, analysed and evaluated the prosecution evidence; that the evidence against the appellant and the co-accused persons was alike and relying on that, the learned trial Judge acquitted co-accused persons Neeku Ram, Smt. Surji and Menpal but adopting a strange logic that since the appellant was the husband of the deceased, he was responsible for the taunts given by his parents and brother, the learned Sessions Judge found him guilty for the said offences and thus committed grave illegality. According to him in this case, since the F. S. L. report has not been received, the exact cause of the death of Smt. Badu has not been established. According to him, the prosecution evidence is inconsistent, contradictory and unreliable and that it was well proved that at the time of the alleged occurrence, the appellant was not present in his house. According to him in this case, no presumption can be drawn under Section 113B, Evidence Act because there is not a fringe of evidence to prove that the deceased was subjected to cruelty soon before her death. He has also relied on the case of Gurditta Singh V. The State of Rajasthan 1991 Cr LR (Raj.) 303 : 1992 Cri LJ 309.

9. On the other hand, the learned P. P. has simply reiterated the reasonings given by the learned trial Judge in the impugned judgment.

10. I have bestowed my thoughtful consideration to the rival submissions. There is no dispute that the deceased Smt. Badu was married to the appellant Jai Ram about two and a half years prior to her death. PW 2 Dr. Balwant Singh has proved the post mortem examination report Ex. P.6 and stated that Smt. Badu had minor external injuries on her body (which are detailed in para 4 of this judgment) and that the case of her death was asphyxia due to organo phosphorus poisoning. Therefore, Smt. Badu's death occurred otherwise than under normal circumstances.

11. Section 304B, IPC lays down that where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with any demand for dowry, such death shall be called "dowry death." and such husband or relative shall be deemed to have caused herdeath. The explanation appended to this section proclaims that for the purpose of Section 304B(1) "dowry" shall have the same meaning as in Section 2, of the Dowry Prohibition Act, 1961.

12. The amended Section 2, of the Dowry Prohibition Act, 1961 defines "dowry" as follows :

Section 2 Definition of "Dowry" -- In this Act "dowry" means any property or valuable security given or agreed to be given either directly or indirectly--

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parents of either party to a marriage or by any other person to either party to the manage or to any other person, at or before (or any time after the marriage) (in connection with the marriage of the said parties), but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (shariat) applies.

Therefore, now the subsequent demands after the marriage are also incorporated in the term "dowry.

13. A new Section 113B has been inserted in the Evidence Act by the Amendment Act, 1986. This section provides that when the question is whether the person has committed dowry death of his woman and it is shown that soon before her death, such woman had been subjected by such person to cruelty or harassment or for in connection with any demand for dowry, the Court shall presume that such person had caused the dowry death. The explanation to this section declares that for the purpose of this section, "dowry death" shall have the same meaning as in Section 304B of the Indian Penal Code.

14. A combined reading of Section 2 of the Dowry Prohibition Act, 1961, 304B, IPC and Section 113B, Evidence Act unmistakably shows that in order to draw the presumption as to "dowry death," the prosecution must prove (i) that the death of the deceased had taken place within seven years of her marriage; (ii) that she had met with an unnatural death either due to any burns or bodily injuries or under abnormal circumstances and (iii) that soon before her death, she was subjected to cruelty or harassment or by her husband or any relative for or in connection with any demand for dowry. (Emphasis added) Therefore, the initial burden lies on the prosecution to prove the aforementioned basic ingredient including the fact that such woman soon before her death was subjected to cruelty or harassment in connection with any demand for dowry. If this initial burden is successfully discharged by the prosecution then the provisions of Sec 113-B, Evidence Act can be pressed into service to lake a presumption that such person had caused the dowry death.

15. In the case of Gurditta Singh (supra), it was established by the prosecution that the appellant and the deceased had entered into the wedlock in the year 1981 and that she died within seven years of her marriage, it was further established that the death was on account of her consuming insecticides i.e. spray used in the field to kill the insects and that such insecticides is ordinarily kept by the farmers in their houses. Thus, it was a case of suicide. It was also proved that at the time when the deceased committed suicide, her husband, the appellant, was in his field. The evidence regarding maltreatment and harassment by the appellant for not bringing sufficient dowry was quite vague and not reliable. The husband after being informed that his wife had consumed spray took her to Nursing home. There was no quarrel between him and the deceased. Therefore, it was held that the prosecution failed to prove that soon before her death, the decased was subjected to any cruelty or harassment in connection with any demand for dowry and appellant was acquitted of the offence Under Section 304B, IPC.

16. Keeping in view the well settled position of law on this score, let us now scan and assess the prosecution evidence. PW 1 Sultana Ram is the father of the deceased. He has stated that as per customs in his community, he had given sufficient dowry in the marriage of his daughter Smt. Badu. He has stated that whennever Smt. Badu used to come from her in-laws house, she used to complain that her in-laws maltreated and harassed her and taunted that she had taken insufficient dowry. He has further slated Smt. Badu used to tell him that her husband Jai Ram, co-accused Necku Ram, Surji and Menpal used to harass her and that the appellant also made a demand for motor cycle. In his cross-examination, he has deposed that after her marriage, Smt. Badu had come to his house only five times and that even in the marriage, Nceku Ram had shown his resentment and dissatisfaction about less dowry. He has clearly admitted that neither in the F. I. R. nor in his police statement, Ex. P.1, it has been mentioned that the appellant had demanded a motor cycle. He has failed to give any satisfactory explanation for this material omission in the FIR and in his police statement Ex. P. 1. He then changed his statement and deposed that Smt. Badu had not specifically taken the name of the appellant for the demand of motor cycle. On the other hand, he stated that members of her in-laws family used to ask her to bring a motor cycle. PW 1 Sultana Ram has specifically stated that he did not remember as to how many days prior to her death, Smt. Badu had come to his house. He has also admitted that Smt. Badu was not proficient in cultivation work. He has deposed that his wife Smt. Guddi had one to meet Smt. Badu at appellant's house but at that time, the appellant along with Smt. Badu had gone to visit Ramdevji fair at Runccha. He has stated that Smt. Guddi had told him about 2-3 days prior to the incident that Smt. Badu was not happy in her in laws house. On the other hand, PW 3 Smt. Guddi has specifically stated that she had gone to Smt. Badu's in-laws house about six months prior to her death and that thereafter she had never gone there. In such circumstances, the statement of PW 1 Sultana Ram to the effect that Smt. Guddi had informed him about two-three days prior to the alleged occurrence that the deceased was not happy in her in laws house is patently false. PW 1 Sultana Ram has also admitted that prior to lodging the report Ex. P.1, he never submitted any report to the police or any other authority complaining that the appellant used to harass or maltreat the deceased in connection with any demand for any dowry. Therefore, the testimony of Sultana Ram about the alleged cruelty or maltreatment to the deceased soon before her death by the appellant is quite vague, inconsistent and untrustworthy.

17. PW 3 Smt. Guddi, the mother of the, deceased, has stated that the appellant Jai Ram, co-accused Menpal, Neeku Ram and Smt. Surji used to maltreat and harass the deceased in connection with the demand for dowry and that they had also made a demand for giving a scooter. She has deposed that whenever Smt. Badu used to come to her house, she used to tell about the said demands. But in her cross-examination when confronted with her police statement Ex. P.2, which is conspicuously silent about the demand of scooter, she has miserably failed to give any satisfactory explanation for this material omission. It appears that during trial, this material & significant improvement about the demand of motor cycle/scooter has been introduced. Even during the trial, it has not been specifically mentioned that the said demand for motor cycle/ scooter was made by the appellant. As mentioned earlier the trial Judge has not relied upon this part of the prosecution evidence in respect of the co-accused persons and acquitted them, but on the same evidence, he has convicted the appellant on the basis of a strange logic that the appellant being the husband, was expected and duty bound to ensure that his wife was not subjected to such cruelty. Apparently the approach of the learned trial Judge is palpably illegal and foreign to Criminal Jurisprudence.

18. PW 3 Smt. Guddi has further stated that the deceased had come to her house about seven eight days prior to her death, but she has not uttered a single word as to whether the deceased had complained about her alleged harassment by the appellant in connection with the demand for dowry. Thus, from her testimony, it is not established that the appellant had subjected the deceased to cruelty soon before her death.

19. The prosecution has not produced Hari Ram and Jagir Singh, who are the neighbours of the appellant's field and Dhani to prove that the deceased was subjected to cruelty by the appellant. The prosecution has thus deliberately withheld these material witnesses, who could depose about the alleged cruelty. Even if the statements of PW 1 Sultana Ram and PW 3 Smt. Guddi, which are inconsistent and contradictory, are taken to be on their face value, still then it does not stand established beyond reasonable doubt that deceased Smt. Badu was subjected to cruelty by the appellant immediately before her death in connection with any demand for dowry. Therefore, the third basic ingredient for attracting the provisions of Section 113B, Evidence Act and for constituting the offence Under Section 304B for "dowry death" does not stand proved. Therefore, the learned trial Judge has committed serious illegality in drawing presumption against the appellant Under Section 113B, Evidence Act.

20. PW 7 Abhimanyu Singh, Dy. S. P. who conducted the investigation, has specifically staled that on the day of the alleged occurrence, appellant Jai Ram was not present at his house. Therefore, it has not been proved that the appellant was present at the time of the alleged occurrence and, therefore, he cannot be held guilty or vicariously liable for the acts done by co-accused persons. In the instant case, co-accused have already been acquitted by the trial Judge. Therefore, in my considered opinion, the learned trial Judge has committed grave error and illegality in holding the appellant guilty for the offence u/s 304B IPC merely on the basis of surmises and conjectures.

21. As regards the offence Under Section 498A IPC, PW 1 Sultana Ram in FIR Ex. D.1 has made an omnibus allegation that the appellant, co-accused Necku Ram, Smt. Surji and Menpal etc. subjected the deceased to cruelty and used to make demand for dowry. During the trial also, PW I Sultana Ram and PW 3 Smt. Guddi have stated likewise, but the learned trial Judge has disbelieved their testimony and acquitted co-accused persons. Hence on the basis of same evidence, the learned trial Judge had no jurisdiction to practise discrimination in respect of the appellant and to convict him for the offence Under Section 498A IPC. Moreover, the evidence regarding the alleged cruelty towards the deceased is also quite vague, incomplete, contradictory, replete with material contradictions and unworthy off credence. Therefore, in my considered opinion, the learned trial Judge has fallen into grave error in finding the appellant guilty for the offence Under Section 498A IPC.

22. the net result of the above discussion is that this appeal is allowed and the impugned judgment D/- 1-7-1992 as also the conviction and sentence passed against the appellant by the learned Addl. Distt. and Sessions Judge, Raisinghnagar are set aside. The appellant Jai Ram is acquitted of the offences Under Sections 304B and 498A IPC. He is at present lodged in Central Jail, Bikaner. He shall be released forthwith, provided he is not required in any othercase. The jail Authorities be informed accordingly.