JUDGMENT 1. - Appellant Surya Prakash, his mother appellant-Naraini and his father Shankerlal faced trial for offences punishable under Sections 304B and 498A, Indian Penal Code before the learned Additional Sessions Judge No. 1, Jaipur City- Jaipur, who by his impugned judgment dated 3.5.1996 giving benefit of doubt acquitted Shankerlal but convicted appellants Surya Prakash and Naraini for the said offences and sentenced each one of them to life imprisonment and a fine of Rs. 250/-, in default of payment of fine to further under go imprisonment for one month on the first count and to three years Rl and a fine of Rs. 100/- and in default of payment of fine, to further undergo 15 days' imprisonment on the second count. He further directed that all the substantive sentences shall run concurrently. 2. The facts of this appeal are short and simple and can be recapitulated within a narrow compass. Deceased Beena was married to appellant Surya Prakash on 5.3.1991. At the time of marriage, Surya Prakash demanded "Yamaha" motorcycle from his mother-in-law PW 3 Smt. Lali. He repeated the same demand before his father-in-law PW 1 Chandalal in presence of many prosecution witnesses. PW 1 Chandalal expressed his inability to meet this demand of appellant Surya Prakash. Chandalal told to co-accused Shankarlal that it was not settled between them to give motor cycle in dowry. Thereupon, the latter told that Surya Prakash was a young boy and he would continue to make such demands and asked Chandalal to go ahead with the marriage ceremonies. However, at the time of "Vida" of marriage party, co-accused Shankarlal did not take his meals thereby showing his displeasure. After six months of the marriage, deceased Beena came to her parents' house and informed that her husband Surya Prakash and mother Naraini used to harass and beat her and make persistent demands for bringing the motor cycle. PW 1 Chandalal after 4-5 days went to the house of appellants and told Shankarlal about ill- treatment given to her by the appellants, whereupon the latter felt sorry and assured that in future such harassment shall not be repeated. Despite that appellants continued making their demands for motor cycle and persistently mal-treated and harassed her in connection with the said demand. It is alleged that deceased Beena used to make complaints to her parents off and on about the mal-treatment given by the appellants. Despite that appellants continued making their demands for motor cycle and persistently mal-treated and harassed her in connection with the said demand. It is alleged that deceased Beena used to make complaints to her parents off and on about the mal-treatment given by the appellants. It is the case of the prosecution that at appellants' house in presence of PW 1 Chandalal, Beena also wept and asked to take her with him, failing which appellants would kill her. Thereupon Chandalal brought her to his house, where she was given treatment to the injuries sustained by her. It is alleged that Shankarlal again begged excuse and assured Chandalal that Beena would not be harassed in future. Hence she was sent to house. It is also the case of prosecution that even thereafter appellants continued harassing her in connection with their demand of motor cycle. In the morning of 11.4.1993 Beena died at appellants' house in abnormal circumstances. PW 1 Chandalal was informed about her death. He went to appellants' house, where he saw the dead body of Beena having injuries on her neck. PW 1 Chandalal submitted written report Ex. PI before PW 12 Ravindra Nath Singh, SI of Police Station, Neemri on the spot, where the latter had come on a telephonic message intimating about her death. Police Station, Neemri was earlier an out-post of Police Station Brahampuri, Jaipur but lately the same was raised as a separate Police Station. However, no notification of the establishment of Police Station, Neemri, Jaipur City was published in the Gazette on the date of incident. Therefore, Ravindra Nath Singh made an endorsement on written report Ex. PI and sent the same to SHO, PS Brahampuri for registration of the case, through Rajpal Constable. PW 17 Jeewan Singh, SHO, PS Brahmpuri drew formal FIR Ex. P9 and sent the same to PW 19 Anil Kumar Jain, CO., Kotwali, under whose jurisdiction, the newly established police station, Neemri was situated. 3. PW19, Anil Kumar jain reached appellants 'house on the same day at about { 11.45 a.m., where he conducted autopsy of deceased Beena and prepared inquest ' report Ex. P2. He also inspected house of the appellant and prepared site plan Ex.P3 4. The Medical Board consisting of PW 20 Dr. S.K. Pathak, PW 21 Dr. B.P. Nag, Dr. G.L. Yadav and Dr. P2. He also inspected house of the appellant and prepared site plan Ex.P3 4. The Medical Board consisting of PW 20 Dr. S.K. Pathak, PW 21 Dr. B.P. Nag, Dr. G.L. Yadav and Dr. Sheetal Jain was constituted as per the order of the Chief Judicial Magistrate. On 12.4.1993 the Board conducted post-mortem examination on the dead body of Beena aged 19 years and prepared post-mortem report Ex. P14. The doctors noticed that her face was cynosed and blood tinched, froth was present over both nostrils. Her nails were pale and her eyes were closed. The doctor found red colour thread ("moli") around her neck which was about 1/4cm. in diameter. The doctors found following injuries on the body of Beena : (1) Abrasion 1/4x 1/4cm. size on posterior lateral aspect of left thigh lower ⅓rd part. (2) Ligature mark measuring 15cms. x 1.5cms. in size placed over in front aspect of the neck extending right and left sides situated 7cms. below right lobule of ear and 6cms. below the left lobule ear, 8cms. below the lower part of the chin (central part of the ligature). On further dissection, the doctors found that ligature mark on the neck was congested and brownish red in colour. On examination the ligature mark was brownish in colour and grooved in the centre and the skin underneath the ligature mark was congested. (3) Abrasion 1 x 1/4cm. size present 1cm. below the ligature mark at the front of left side neck, which was ante mortem. On dissection, the doctors also found that cerebral vessels were engorged and the brain was congested. Her larynx and trachea were congested. Both the lungs were congested and oedematous. The heart was healthy but contained little amount of blood. The stomach/M.M. was deeply congested and con- tained reddish brown liquid about 50 cc. Small and large intestines were congested. Spleen, liver and both kidneys were congested. 5. The doctors also took out pieces of both kidneys, lungs, brain, stomach and small intestines of the deceased and the blood in a separate jars and sealed them. The Medical Board opined that the cause of death of the deceased was asphyxia as a result of pressure on the neck by the ligature and that the said ligature marks and injuries were ante mortem in nature and sufficient to cause death in the ordinary course of nature. 6. The Medical Board opined that the cause of death of the deceased was asphyxia as a result of pressure on the neck by the ligature and that the said ligature marks and injuries were ante mortem in nature and sufficient to cause death in the ordinary course of nature. 6. The appellants were arrested on 18.4.1993. It is alleged that appellant Surya Prakash in pursuance to his voluntary disclosures made under Section 27 of the Evidence Act vide information memo Ex. P12 and Ex. P13 dated 18.4.1993 and 19.4.1993 respectively got recovered silver chain, "moli" thread, Mangalsutra of the deceased, which were concealed underneath the bed from his room vide recovery memo Ex. P7 and a packet of rat control poison containing some grey coloured powder therein from the wall inside gate of his house vide recovery memo Ex. P5. 7. The pieces of visceras, blood and rat control poison packet containing some grey coloured powder were sent through PW 11 Mawasi Ram, Constable to the State Forensic Science Laboratory for chemical examination. PW 11 Mawasi Ram deposited those packets vide Receipt Ex. P6. The Assistant Director, F.S.L. vide his report Ex. P15, opined that on chemical examination those visceras as well as blood taken out from the dead body of the deceased gave positive test for the presence of alluminium phosphide. 8. After completion of the investigation, the police submitted a challan against the appellant and co-accused Shankarlal in the Court of the Additional Chief Judicial Magistrate No. 4, Jaipur City, who in turn committed the case to the Court of Sessions. The appellant and co-accused denied the charge and claimed trial. To prove its case, the prosecution examined as many as 21 witnesses. The appellants and co-accused Shankarlal admitted that Beena was married to Surya Prakash but denied the alleged demand of motor cycle and harassment or the mal-treatment to the deceased. They pleaded their ignorance about the cause of death of Beena. They asserted that they neither demanded any dowry, nor beat the deceased, nor forced her to commit suicide and claimed that they have been falsely implicated. They examined as many as seven witnesses in their defence. After trial, the learned Additional Sessions Judge by the impugned judgment acquitted co-accused Shankarlal, convicted and sentenced the appellants in the manner indicated above. Hence this appeal. 9. They examined as many as seven witnesses in their defence. After trial, the learned Additional Sessions Judge by the impugned judgment acquitted co-accused Shankarlal, convicted and sentenced the appellants in the manner indicated above. Hence this appeal. 9. During the hearing of this appeal, CW Niranjan Lai, Photographer was examined and two photographs of the deceased's dead body Ex. CW1 /1 and CW 1/2and the bill of the photos Ex. CW ⅓ were taken in evidence. The appellants were further examined under section 313, Cr.P.C. regarding the additional evidence, wherein they admitted that on 11.4.1993 at about 9 a.m. the police had called the photographer and photographs of the dead body of deceased Beena Exs. CW1 / 1 and CW 1/2 were taken by that photographer, and asserted that those photo- graphs were not taken by CW Niranjanlal but were taken by Pappu Photographer. Appellant Surya Prakash admitted that those photographs along with their negatives were given by CW 1 Niranjanlal to PW 1 Chandalal on 12.4.1993 along with the bill Ex. CW1 /3. They, however, denied that at the time of taking photographs of the deceased, there were blood marks on her neck. Appellant Naraini stated that deceased Beena was suffering from abdominal pain for which she got her treatment from the doctors. She also admitted her written statement separately alleging that original documents regarding treatment of the deceased were given by her to the Investigating Officer, which the latter did not tag those with the challan and prayed that the photostat copies of those documents (prescription etc.) be taken on record and admitted in evidence. 10. We have heard the learned Counsel for the appellants and the learned Public Prosecutor and the learned Counsel for the complainant at length and perused the record in extenso. Mr. S.K. Gupta has assailed the impugned judgment on multiple grounds. He vigorously canvassed that a written report Ex. PI is not the same report, which was initially submitted by PW 1 Chandalal at Police Station, Brahampuri. According to him, the prosecution has suppressed the said report and that written report Ex. PI is concocted and lodged after consultation and that the same is hit by the provisions of section 162, Cr.P.C. and as such is inadmissible in evidence. But this argument is not based on evidence recorded in this case. According to him, the prosecution has suppressed the said report and that written report Ex. PI is concocted and lodged after consultation and that the same is hit by the provisions of section 162, Cr.P.C. and as such is inadmissible in evidence. But this argument is not based on evidence recorded in this case. PW 1 Chandalal, who is father of the deceased, has deposed that on 11.4.1993 at about 7 a.m. he was informed that his daughter has died. Thereupon he alongwith Gopal Lal and others went to the house of the appellants, where he saw that dead body of Smt. Beena was lying in a room, blood was coming out from the nostrils and mouth and she had injuries on her neck. He asked the appellants about the cause of her death but they pleaded their ignorance. Thereupon, he went to Police Station Brahampuri with written report Ex. PI and gave the same to the In-charge, Police Station but the latter did not accept the same. He further stated that by that time, some police personnel from Police Station, Neemri had also reached appellant's house and since the place of occurrence was within jurisdiction of Police Station, Neemri he handed over written report Ex. PI to the In-charge of Police Station, Neemri. In his cross examination, he admitted that a Police Sub-Inspector alongwith a constable from PS Brahampuri had also come to appellants' house with him and that Brahampuri police had also transmitted a wireless message to PS Neemri. He stated that In charge of Police Station, Neemri alongwith constables had reached appellants' house around 9.30 a.m. PW1 Chandalal specifically deposed that he had given written report Ex. PI to the in charge PS Neemri, which he had earlier submitted before the Incharge,PS Brahampuri. 11. PW 17 Jiwan Singh, SHO, PS Brahampuri has categorically denied the suggestion that Chandalal had submitted any report to him. He also denied the suggestion that a report in the daily diary of PS Brahampuri was entered to the effect that the police officials of the said police station had been sent to the place of occurrence. PW 12 Ravindra Nath Singh, Sub-Inspector, PS Neemri stated that a telephonic message was received at his PS about the death of a lady. Thereupon he alongwith constables went to the house of appellants, where PW 1 Chandalal had submitted a written report Ex. PW 12 Ravindra Nath Singh, Sub-Inspector, PS Neemri stated that a telephonic message was received at his PS about the death of a lady. Thereupon he alongwith constables went to the house of appellants, where PW 1 Chandalal had submitted a written report Ex. PI to him. He further stated that since on 11.4.1993, there was no independent Police Station, Neemri, he sent the written report Ex. PI to SHO, PS Brahampuri through constable Rajpal Singh. In his cross examination, he admitted that he had received the said telephonic message at about 11 a.m. and immediately thereafter, he reached at the place of occurrence. PW 16 Rajpal Constable has corroborated the testimony of PW 12 Ravindra Singh and stated that the latter had handed over the written report Ex. PI to him, which he had submitted before PW 17 Jiwan Singh, SHO, who drew F.I.R. and gave the same to him and which he handed over to Anil Kumar Jain, Circle Officer. PW 17 Jiwan Singh has also deposed likewise and proved the endorsements made by him on written report Ex. PI and FIR Ex. P9. There is no evidence in rebuttal on thla score. Thus, from the prosecution evidence, it stands firmly established that PW 1 Chandalal had written only one report Ex. PI, which he had earlier taken to PS, Brahampuri, which was not accepted and he was directed to lodge that report at PS, Neemri. PW 1 Chandalal, therefore, submitted written report Ex. PI to Ravindra Singh SI, PS, Neemri, who had reached at appellants' house. Therefore, it is not at all established that Chandalal had lodged two F.I.Rs. and that the prosecution has suppressed earlier F.I.R. In our considered opinion, in this case, written report Ex. PI was lodged promptly and the same is neither ante-dated nor concocted, nor prepared after consultation. We, therefore, foil down this argument advanced by Mr. S.K. Gupta. 12. Next contention of Mr. and that the prosecution has suppressed earlier F.I.R. In our considered opinion, in this case, written report Ex. PI was lodged promptly and the same is neither ante-dated nor concocted, nor prepared after consultation. We, therefore, foil down this argument advanced by Mr. S.K. Gupta. 12. Next contention of Mr. Gupta is that the prosecution case is not clear and consistent about the cause of death as to whether Smt. Beena had died by administering poison to her, or whether the cause of her death was strangulation because in the charge under Section 304B, Indian Penal Code, both causes of death have been mentioned, according to him it is a material defect which has caused prejudice to the appellants, who could not meet out his defence due to such vague and defective charge. We are not at all impressed by this argument because in the charge for offence under Section 304B, Indian Penal Code it has been specifically mentioned that the appellants used to commit cruelty and harassment to Smt. Beena in connection with demand of dowry and that they committed her death by administering rat killing drug and by strangulating her neck. The Medical Board, who conducted post- mortem examination opined that the cause of death of Smt. Beena was asphyxia as a result of pressure on the neck of the ligature. However, they also preserved visceras of the deceased for pathological examination. It may be mentioned here that the appellants have not been charged for committing the murder of Smt. Beena punishable under Section 302, IPC. On the other hand they have been charged for the dowry death of the deceased punishable under Section 304B, Indian Penal Code which lays down that where a death of woman is caused by 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 of dowry, such death shall be called, "dowry death" and such husband or relatives shall be deemed to have caused her death. The explanation appended to Section 304B, Indian Penal Code proclaims that for the purposes of this Sub-section (1), "dowry" shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961. The explanation appended to Section 304B, Indian Penal Code proclaims that for the purposes of this Sub-section (1), "dowry" shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961. In the instant case, as per the prosecution case, admittedly Smt. Beena wa6 married to appellant Surya Prakash on 5.3.1991 and she died in abnormal circum- stances in the morning on 11.4.1993, i.e. within seven years of her marriage. As per the post-mortem Ex. D14 report, there were ante mortem injuries on the body of the deceased including the ligature marks on her neck, which according to the doctors was sufficient in the ordinary course of nature to cause her death. Thus, the death of Smt. Been occurred due to bodily injuries sustained by her. As per F.S.L. report Ex. P. 15, the pieces of viscera and the blood gave positive tests for the presence of alluminium phosphide. The doctors have not stated that the cause of death was due to poisoning. In such circumstances, the charge under Section 304B, Indian Penal Code is neither vague nor uncertain. The appellants also did not make any grievance or challenge to the charge under Section 304B, Indian Penal Code at the earliest stage during trial. Even they were not misled by any vague or uncertain charge. On the other hand, they cross- examined prosecution witnesses at length knowing fully well about the charge levelled against them. They also adduced the evidence in rebuttal for meeting out the charge under Section 304B, IPC. In such circumstances, by no stretch of imagination, it can be held that the charge under Section 304B, Indian Penal Code levelled against the appellants was vague or uncertain or that they were misled in taking proper defence or that alleged defect in the charge for the offence Under Section 304B, Indian Penal Code has occasioned any failure of justice resulting in prejudice to them. Moreover, keeping in view provisions of section 215, Cr.P.C. the alleged error in stating either offence or particulars required to be stated in the charge, cannot be regarded as material and it cannot be held that the appellants were prejudiced in meeting out their defence. Moreover, keeping in view provisions of section 215, Cr.P.C. the alleged error in stating either offence or particulars required to be stated in the charge, cannot be regarded as material and it cannot be held that the appellants were prejudiced in meeting out their defence. We do not find any material error or omission or irregularity in the charge under Section 304B, Indian Penal Code framed against the appellants and keeping in view provisions of section 464, Cr.P.C. the trial of this case does not stand vitiated on this count: Thus, the second contention of Mr. Gupta is devoid of any substance and the same is hereby repelled. 13. Another plank of argument of Mr. Gupta is that there is not an iota of evidence to prove that Smt. Beena was subjected to cruelty or harassment by the appellants for or in connection with any demand of dowry soon before her death and this material ingredient to constitute the offence under Section 304B, Indian Penal Code is conspicuously missing. According to him, the learned Trial Judge has not correctly discussed, analysed and scanned statements of prosecution witnesses on this score and committed patent illegality in convicting the appellants for the offence under Section 304B, IPC. 14. We shall now closely and critically scrutinise the prosecution evidence regarding the alleged cruelty or harassment perpetrated to Smt. Beena by the appellants 'soon before' her death. 15. PW1 Chandalal stated that on 5.3.1991 at the time of marriage, appellant Surya Prakash demanded a "Yamaha" motorbike during the ceremony by catching hold of the "Saree" of his mother-in-law PW 3 Smt. Lali, whereupon the latter called him (PW 1) and apprised about the demand made by Surya Prakash, who also repeated the same demand to him. Chandalal expresed his inability to meet the demand of motor cycle in the presence of PW 2 Mishrilal, PW 4 Lalloo Lal, PW 5 Hari Narain and others, who were present there at that time, co-accused Shankarlal told that Surya Prakash was a young boy, that he shall be making such demands and asked Chandalal to proceed further with the ceremonies. However, at the time of the "Vida" of the marriage party co-accused Shankarlal did not take the meals. Chandalal stated that for about six months after the marriage, the appellant did not commit any cruelty or beat Smt. Beena. However, at the time of the "Vida" of the marriage party co-accused Shankarlal did not take the meals. Chandalal stated that for about six months after the marriage, the appellant did not commit any cruelty or beat Smt. Beena. However, after about six months of the marriage when she came to his house on the festival of "Teej" sometime in August, 1991, then she asked him as to when was he giving the motor cycle to her husband. She also told him that appellants were making persistent demands for giving motor cycle and that they also used to harass her. Chandalal stated that after about 4-5 days, he went to Shankarlal's house as the latter was suffering from fever. At that time, Smt. Beena asked him to take her with him otherwise the appellants would kill her. Chandalal further stated that on that day in the evening, appellant Surya Prakash left Smt. Beena near the "Pulia" and asked her to go to parents' house and that she had injury marks on her body and she had told him that the appellants had belaboured her. Thereupon, he went to the appellant's house and told Shankarlal about the cruelty meted out to Smt. Beena and that he would convene a Panchayat. Thereupon, Shankarlal admitted his mistake, begged excuse, assured him that such things would not be repeated in future and took Smt. Beena with him to her nupital home. Chandalal deposed that after about a fortnight, which works out sometime in September, 1991, Smt. Beena was again beaten by appellants and her brothers- in-law Tikam and Satya Narain left her near the "Pulia" near his house and at that time, Smt. Beena told him that her husband Surya Prakash had specifically told her that there was no place for her in his house. Thereupon, Chandalal again went to appellants' house, that on the same day. In the evening co-accused Shankarlal came to his house and in the presence of PW 4 Lalloolal, PW 7 Gopallal and others felt sorry and took Beena to his house. Chandalal further deposed that about 2-3 months thereafter, which works out to November/December, 1991 Smt. Beena came to his house and informed that the appellants had again belaboured her and that her husband Surya Prakash had left her near the "Pulia". Chandalal further deposed that about 2-3 months thereafter, which works out to November/December, 1991 Smt. Beena came to his house and informed that the appellants had again belaboured her and that her husband Surya Prakash had left her near the "Pulia". At that time, the condition of Smt. Beena was serious and he got her medically treated by a doctor. She stayed in his house for about 15 days and thereafter Shankarlal again came and after begging excuse took her to his house. This period works out sometime in December, 1991 or at the most January, 1992, Chandalal deposed that thereafter, on 11.4.1993 at about 7.30 a.m. somebody informed him that his daughter Smt. Beena had died. Thus he has not uttered a single word about any harassment or maltreatment perpetrated by appellants from January, 1992 till 11th April, 1993 when she breathed her last. In his cross examination, he admitted that the appellants did not demand anything except "Yamaha" motor cycle, and that he did not lodge any report at the police station about the alleged beatings given by the appellants to the deceased prior to the incident, because co-accused Shankarlal had begged excuses many a times. Thus Chandalal has not deposed anything about the alleged conduct of the single word about the conduct of the appellants from January, 1992 till 11.4.1993 i.e. till the date of death of deceased Smt. Beena and has not stated that soon before her death, Smt. Beena was subjected to cruelty or harassment by the appellants for or in connection with the demand of dowry. 16. PW 3 Smt. Lali is the mother of the deceased. She deposed that at the time of marriage, appellant Surya Prakash, demanded a motor cycle by catching hold of her "Saree" and since she and her husband did not have a sound financial capacity, no motor cycle was given. After six months of the marriage, Smt. Beena told her that her in-laws used to treat her with cruelty and asked her to bring the motor cycle. She stated that as and when Smt. Beena came to her parents, house, she saw injury marks on her body and that she also got her treated by a doctor for those injuries. However she did not know the name of the doctor, who had treated Smt. Beena. She stated that as and when Smt. Beena came to her parents, house, she saw injury marks on her body and that she also got her treated by a doctor for those injuries. However she did not know the name of the doctor, who had treated Smt. Beena. She has also not uttered a single word about the alleged cruelty perpetrated by the appellants to the deceased for or in connection with the demand of motpr cycle during the period from January, 1992 till 11.4.1993. 17. PW 2 Mishrilal is the real uncle of the deceased. He deposed that the demand of the motor cycle was made by Surya Prakash at the time of the marriage, that after the marriage, appellants used to give beating to Smt. Beena and used to leave her at Chandalal's house and that after begging excuses they used to take Smt. Beena back to her nupital house. But he has not given any details of the dates of period during which Smt. Beena was subjected to cruelty or was left by the appellants to her parents' house. He stated that on the day of the incident, the appellants, had murdered her by hanging her by the neck but such is not the statement of either Chandalal or Smt. Lali or any other prosecution witness. In his cross examination, he stated that Smt. Beena had informed him about the alleged cruelty perpetrated by the appellants after 2-3 months of her marriage. Again, such is not the statement of any of the prosecution witness. Mishrilal also stated that on the day of the incident, one of his friends namely Ramu had intimated him that during the preceding night Smt. Beena was murdered and at that time, the appellants had put on a tape recorder on high frequency and in the midst of such a noise, his friend had heard her screams. But no such fact finds mention in FIR Ex. PI nor any other prosecution witness has deposed likewise. On the other hand, the prosecution has neither included name of Ramu in the calendar of witnesses nor examined him. Apparently Mishrilal has unsuccessfully tried a new story about the death of Beena and in Mishrilal on this count. In our considered opinion, he is highly interested witness and his testimony lacks credibility. On the other hand, the prosecution has neither included name of Ramu in the calendar of witnesses nor examined him. Apparently Mishrilal has unsuccessfully tried a new story about the death of Beena and in Mishrilal on this count. In our considered opinion, he is highly interested witness and his testimony lacks credibility. He has also not stated anything about the alleged cruelty perpetrated by the appellants to the deceased soon before her death. 18. PW 4 Lallulal is the "Samadhi" of PW1 Chandalal. His daughter is married to the son of Chandalal. He stated that at the time of marriage, Surya Prakash demanded a motor cycle and that after the marriage, he used to beat the deceased and he has not given the dates or the period when the appellant used to give beatings to the deceased. He has also not stated anything about the alleged cruelty of the appellant or harassment given to the deceased soon before her death. In his cross examination, he admitted that he never reported the matter to the police, about the alleged cruelty meted out by the deceased at the hands of appellants. He further admitted that except on the day of the incident, i.e. 11.4.1993 he had never gone to the house of appellants. Thus, the testimony of this witness is quite vague. Shron of relevant details and the same does not render substantial assistance to the prosecution to prove one of the basic ingredients, i.e. "cruelty or harassment soon before the death" of Smt. Beena to constitute the offence under Section 304B, IPC. 19. PW 5 Hari Narain Meena is the neighbour of PW 1 Chandalal. Heated that at the time of "Vida" of the "Barat" appellant Surya Prakash had demanded a motor cycle, that after the marriage, the in-laws of Smt. Beena used to leave her near the "Pulia" and that Smt. Beena used to start weeping. However, in cross examination, he stated that after about 12 months of the marriage of Smt. Beena, she had come to his house. But he has not given any details of her conversation with him. He also admitted that in his police statement Ex. D2 he did not tell to the Investigating Officer that Smt. Beena had told him that the appellants used to treat her with cruelty or harass in connection with the demand of dowry. But he has not given any details of her conversation with him. He also admitted that in his police statement Ex. D2 he did not tell to the Investigating Officer that Smt. Beena had told him that the appellants used to treat her with cruelty or harass in connection with the demand of dowry. Therefore, the statement of this witness has tried to materially improve his statement. To our minds, he is not at all a reliable witness. 20. PW 7 Gopallal Mali is the cousin of PW 1 Chandalal. He stated that Surya Prakash had demanded a motor cycle at the time of marriage and that after six months the appellants gave beating to Smt. Beena and left her to her parents' house. Thereafter, Chandalal collected members of his community and in his presence, the in-laws of the deceased felt sorry and assured that in future they would not repeat such mal-treatment to the deceased and thereafter the deceased went to her nupital home. He deposed that on 11.4.1993 Chandalal's son came to his house and informed that Smt. Beena had died. He therefore, went to appellants' hquse and saw the dead body of Smt. Beena lying there having injuries on her neck, nose, ears and thighs. In his cross examination, he stated that Smt. Beena had talked to him only once about mal-treatment given by her in-laws in connection with the demand of motor cycle about 8-10 months prior to her death. But in his police statement, Ex. D4, he has not stated about it. Even if the statement of this witness is taken to be true on its face value, still then he has simply stated about the ill-treatment and harassment committed by appellants about 8-10 months prior to the death of the deceased and this period in the facts and circumstances of this case cannot be construed as "soon before her death" as envisaged in Section 304B, IPC. There is no other prosecution evidence on this score. 21. It has been vehemently canvassed by Mr. S.K. Gupta that the findings given by the learned trial Judge holding the appellants guilty for offence under Section 304B, Indian Penal Code are patently perverse and not based on legal evidence. There is no other prosecution evidence on this score. 21. It has been vehemently canvassed by Mr. S.K. Gupta that the findings given by the learned trial Judge holding the appellants guilty for offence under Section 304B, Indian Penal Code are patently perverse and not based on legal evidence. He has asserted that there is not a shred of evidence to show that soon before her death, Smt. Beena had been subjected to cruelty or harassment by the appellants for or in connection with any demand of dowry and as such, the learned trial Judge has committed a grave illegality in drawing presumption against the appellants under Section 304B, IPC. On the other hand, Mr. Agrawal, the learned Public Prosecutor has contended that in written report Ex. PI. PW 1 Chandalal has, specifically mentioned that there was persistent demand of "Yamaha" motor cycle by the appellants and for that, Smt. Beena was being tortured, harassed and subjected to cruelty by them. He has submitted that the appellants in cross examination of all the prosecution witnesses have failed to elicit that no cruelty was meted out by them to the deceased soon before her death, Therefore, it should be presumed that the process of committing the cruelty and the harassment by the appellants to the deceased was continuous, which continued till her death. 22. He placed reliance on the decision in Shamlal v. State of Haryana, JT 1997 (3) SC p. 91 : I (1997) CCR 231 (SC) , wherein the appellant alongwith his father and grand mother were charged for offences under Sections 302,304B and 498A, Indian Penal Code, in connection with the death of his wife Neelam Rani, whose death took place within seven years of her marriage by sustaining burns. The Sessions Judge acquitted the grand mother, who was in her eighties, but convicted the appellant as well as his father of all offences and sentenced them to imprisonment for life. The High Court of Punjab and Haryana acquitted the appellant's father but confirmed the conviction of appellant Shamlal under Section 302, IPC. The High Court pointed out that in view of the said conviction, it was unnecessary to maintain conviction under Sections 304B, Indian Penal Code and 498-A, IPC. The High Court of Punjab and Haryana acquitted the appellant's father but confirmed the conviction of appellant Shamlal under Section 302, IPC. The High Court pointed out that in view of the said conviction, it was unnecessary to maintain conviction under Sections 304B, Indian Penal Code and 498-A, IPC. The prosecution case was that the appellant was persecuting his wife with demand of more dowry and at last set her ablaze for not quenching his greed for dowry. On the other hand, the stand of the appellant under section 313, Cr.P.C. was that by frustration as she could not give birth to a child as also she could not adjust in village life with the appellant, she committed suicide burning herself. There w*.s no direct evidence. The High Court counted some circumstances and reached the conclusion that the circumstances have concatenated themselves into a complete chain establishing that appellant had killed her by setting her ablaze after dousing her with kerosene. The Apex Court on scrutiny of the evidence was of the view that the circumstances were far too meagre for reaching the conclusion that appellant had set her on fire. The Apex Court held that the primary requirements for finding the appellant guilty of the offence under Section 304B, Indian Penal Code were that the death of the deceased was caused by burns within seven years of her marriage and that "soon before her death" she was subjected to cruelty or harassment by the appellant for or in connection any demand for dowry. The Apex Court observed that what the prosecution achieved in proving at the most was that there was persisting dispute between the two sides regarding the dowry paid or to be paid, both in kind and in cash, and oh account of the failure to meet the demand for dowry, the deceased was taken by her parents to their house about one and a half years before her death. Further evidence was that an attempt ,was made to patch up between two sides for which a panchayatwas held in which it was resolved that she would go back to the nupital home pursuant to which she was taken by the husband to his house about 10-15 days prior to the occurrence. Further evidence was that an attempt ,was made to patch up between two sides for which a panchayatwas held in which it was resolved that she would go back to the nupital home pursuant to which she was taken by the husband to his house about 10-15 days prior to the occurrence. There was nothing on record to show that she was either treated with cruelty or harassment with the demand for dowry during the period between her having been taken to the parental home and her tragic,end. The Apex Court held that in the absence of any such evidence, it was not permissible to take recourse to the legal presumption envisaged in Section 113B of the Evidence Act. That rule of evidence is prescribed in law to obviate the prosecution of the difficulty to further prove that the offence was perpetrated by the husband, as then it would be the burden of the accused to rebut the presumption. The Apex Court, therefore, acquitted the appellant for offence under Section 304B, Indian Penal Code but convicted for offence under Section 498A Indian Penal Code on the statement of the father of the deceased on the basis of her statement made to her father, which was held to be admissible in evidence under Section 32 of the Evidence Act. 23. We have given our anxious and thoughtful consideration to the rival submissions Section 304B, Indian Penal Code has been inserted by the Dowry Prohibition Amendment Act, 1986 with a view to combating the increased menace of dowry deaths. This section proclaims 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 subject to cruelty or harassment by her husband or any relative of her husband 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 dowry death. The explanation appended to Section 304B, Indian Penal Code, lays down that for the purpose of Sub- section (1) "dowry" shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961. By the aforesaid Amendment Act, Section 113B has been inserted in the Evidence Act. The explanation appended to Section 304B, Indian Penal Code, lays down that for the purpose of Sub- section (1) "dowry" shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961. By the aforesaid Amendment Act, Section 113B has been inserted in the Evidence Act. It deals with the presumption as to dowry death and proclaims that when the question is whether a person has committed "dowry death" of a woman and it is shown that soon before her death, such woman had been subjected by such person to cruelty or harassment for or in connection with any demand of dowry, the Court shall presume that such person has caused dowry death. The explanation appended to this section further explains that for the purpose of Section 113B, "dowry death" shall have the same meaning as in Section 304B, IPC. Therefore, to raise a presumption as to "dowry death", the basic pre- requisites are, (i) that the death of such woman has been caused by any burns or bodily injury or otherwise than under normal circumstances, (ii) that such death should have occurred within seven years of her marriage, and (iii) that it should be shown that soon before her death, such woman had been subjected to cruelty or harassment for, or in connection with any demand for dowry. The expression, "soon before" is very relevant and the prosecution is obliged to show and establish that "soon before" her death such a woman had been subjected to cruelty or harassment by the accused for or in connection with the demand of dowry death, such woman had been subjected to cruelty or harassment etc. 24. No rule of thumb regarding time span for the expression, "soon before" can be fixed in a strait jacket. On the other hand, this expression is a relative term and it would depend upon the facts and circumstances of each case. The expression "soon before" denotes a reasonable period of time. In the instant case, there is not a shred of evidence to show the alleged cruelty or harassment was meted out by the deceased at the hands of the appellants for last 12-13 months preceding her death. The expression "soon before" denotes a reasonable period of time. In the instant case, there is not a shred of evidence to show the alleged cruelty or harassment was meted out by the deceased at the hands of the appellants for last 12-13 months preceding her death. The aforementioned prosecution witnesses have only given instances of alleged cruelty and harassment in connection with the demand of dowry, which perpetrated by the appellants to the deceased, relate back till December, 1991 or at the most January, 1992. In such circumstances, the evidence in the case at hand, to prove one of the basic ingredients enumerated at No. (iii) in the preceding para for constitution 'the offence under Section 304B, Indian Penal Code is squarely lacking and conspicu- ously missing. Even during the investigation, the Investigating Officer did not collect the evidence to establish that the deceased was subjected to cruelty or harassment by the appellants for or in connection with the demand of dowry soon before her death. Thus, the learned trial Judge has not correctly discussed, analysed and assessed the statements of the afore-mentioned witnesses and his findings to the effect that Smt. Beena was subjected to cruelty or harassment by the appellants for or in connection with any demand of dowry soon before her death is not based on any evidence on record and the same is patently perverse. In view of this, the prosecution has utterly failed to prove offence under Section 304B, Indian Penal Code, against the appellants.In re. Charge under Section 498A, IPC 25. However, from the consistent testimony of PW 1 Chandalal, PW 2 Mishrilal, PW 3 Smt. Lali, PW 5 Lalloolal and PW 7 Gopallal. It stands well established beyond reasonable doubt that both the appellants had subjected Smt. Beena to the cruelty and harassment after the marriage and such harassment was with a view to forcing her or any person related to her to meet any demand for "Yamaha" motor cycle and such harassment was on account of failure to her or any person related to her to meet such demand. The statements of these witnesses, wherein they have consistently deposed that the deceased had complained to them that appellant Surya Prakashand his mother appellant Smt. Naraini used to heather and harass her for or in connection with the demand of the motor cycle, are ad missible in evidence under Section 32 of the Evidence Act as has been held by the Apex Court in Sharnlal's case (supra). 26. A similar view has been taken by the Apex Court in Balram Prasad Agrawal v. State of Bihar, 1997 Cr. L.R. (SC) 192 : I (1997) DMC 161 (SC) , wherein it has been held that the evidence of a person about what the deceased told her father about sufferings at the hands of her husband (accused) was clearly admissible under Section 32 of the Evidence Act. 27. In State of U.P. v. Ramesh Prasad Misra, 1997 Cr. L.R. (SC) 24 : II (1996) , it has been held that Section 32(1) of the Evidence Act is wide enough to include statements of deceased regarding circumstances of the transactions which resulted in his death, i.e. the motive behind the criminal act in question. The evidence of the father and sister of the deceased to whom the deceased spoke about the cruelty meted out to her and harassment perpetrated to her for or in connection with the demand of dowry and such evidence is relevant for deciding, whether the accused was guilty of offence under Section 498A, IPC. Therefore, in the case on hand, statements of PW 1 Chandalal, PW 2 Mishrilal, PW 3 Smt. Lali, PW 6 Maliram and PW 7 Gopalal Mali/ to whom the deceased Beena had narrated her woeful tale regarding demand of dowry made by the appellants and the cruelty administered to her for and in connection with the demand of "Yamaha" motor cycle is certainly admissible in evidence under Section 32 of the Evidence Act. 28. In view of this, the learned trial Judge has not committed any illegality either of fact or law in convicting appellants Surya Prakash and Smt. Naraini for offence under Section 498A, IPC. 29. Another contention of Mr. 28. In view of this, the learned trial Judge has not committed any illegality either of fact or law in convicting appellants Surya Prakash and Smt. Naraini for offence under Section 498A, IPC. 29. Another contention of Mr. Gupta is that in this case the investigation has been tainted inasmuch as the clothes of the deceased Were not seized/photos of the deceased were not exhibited during trial and that the post-mortem was conducted after the delay of 36 hours and the recovered chain, "Mangalsutra", "Moli" thread were not produced in the Court during trial. The death of Smt Beena is not in dispute. PW 2 Dr. S.K. Pathak and PW21 Dr. B.P. Nag have proved the post-mortem report Ex. P14 and consistently deposed that the cause of the death of the deceased was due to asphyxia as a result of pressure of ligature on the neck. They have also stated that the injuries sustained by the deceased on her thigh and other parts of the body were ante-mortem in nature. Since the appellants have not been charged for offence under Section 302, IPC,' non-production of the recovered "Mangalsutra", "Moli" thread and the chain is not fatal to the prosecution for proving the charge under Section 498A, IPC. 30. The Investigating Officer has not stated that the clothes of the deceased were stained with the blood. No prosecution witness has stated that the blood was oozing out from the injuries of the deceased, which had stained her clothes. In such circumstances, it was not at all necessary for the Investigating Officer to have seized the garments from the dead body of the deceased. The Investigating Officer had filed photographs of the deceased alongwith the challan, but due to inadvertence of the prosecutor, the photographer was not examined during trial However, during hearing of this appeal on the application filed by the learned Public Prosecutor under Section 311 read with section 482, Cr. P.C. which was allowed by this Court the statements of CW1 Photographer Niranjanlal was recorded and the photos of the deceased marked Ex. CW1/1 and Ex. CW 1/2 were taken on record. Even the appellants in their further statements under section 313, Cr.P.C. recorded in this Court have admitted that those photos are of the dead body of the deceased, which were taken by the photographer. 31. PW 19 Anil Jain Dy. CW1/1 and Ex. CW 1/2 were taken on record. Even the appellants in their further statements under section 313, Cr.P.C. recorded in this Court have admitted that those photos are of the dead body of the deceased, which were taken by the photographer. 31. PW 19 Anil Jain Dy. SP and Circle Officer has stated that the learned Chief Judicial Magistrate had ordered for the constitution of the Medical Board on 12.4.1993 and as such, the post-mortem of the dead body of the deceased was conducted on that day, though the dead body of Smt. Beena was sent to the hospital at 2 p.m. on 11.4.1993. Thus, the delay in conducting the post-mortem examination stands satisfactorily explained and the same was not due to any lapse on the part of the Investigating Officer. There is not a fringe of evidence to show that at the time of the post-mortem examination, the dead body of Smt. Beena was decomposed or putrified. Thus, the delay in conducting the post-mortem examination is not at all fatal to the prosecution. 32. In State of Rajasthan v. Kishore, 1996 Cr. L.R. (SC) 398 : II (1996) CCR 1 (SC) , it has been held that irregularity committed in investigation in omitting to send the burnt clothes and other incriminating material for chemical examination to lend corroboration to the prosecution is not sufficient to cast doubt on its case. In the instant case also, irregularities pointed out by Mr. S.K. Gupta are not at all material and fatal to the prosecution so far as the offence under Section 498A, Indian Penal Code is concerned. 33. No other point was pressed before us. 34. In the result, this appeal is partly allowed and the sentence and conviction of appellants Surya Prakash and Smt. Naraini for the offence under Section 304B, Indian Penal Code, are hereby quashed and set aside and they are acquitted of the said offence. However, their conviction and sentence for the offence under Section 498A, Indian Penal Code are maintained. Appellant Surya Prakash, who is at present lodged in Central Jail, Jaipur and has already undergone the sentence awarded against him for offence Under Section 498A, Indian Penal Code, be set at liberty forthwith, if not required in any other case. However, their conviction and sentence for the offence under Section 498A, Indian Penal Code are maintained. Appellant Surya Prakash, who is at present lodged in Central Jail, Jaipur and has already undergone the sentence awarded against him for offence Under Section 498A, Indian Penal Code, be set at liberty forthwith, if not required in any other case. The bail bonds of appellant Smt. Naraini, whose sentence was suspended and who was on bail during pendency of this appeal, are cancelled and the learned trial Judge shall issue warrant for arrest for sending her to jail to undergo the sentence awarded to her for the offence Under Section 498A, IPC.Appeal partly allowed. *******