JUDGMENT 1. - This appeal owes its origin in the judgment dated December 2, 1997 of the learned Additional Sessions Judge, Kishangarh Bas (Alwar) in Sessions Case No. 50/1996 whereby each of the accused appellants was convicted under sections 304-B and 498-A IPC and sentenced as under- Section 304-B-to suffer 10 years R.l. and fine of Rs.1000/- (in default to further suffer two months S.I.) Sections 498-A-to suffer one year R.l. and fine of Rs.500/- (in default to further suffer two months R.l.) 2. Brief resume of facts is that deceased Smt. Kamlesh was married to accused appellant Desh Bhandhu in the month of February 1993. She died under abnormal circumstances in his house on August 28, 1996. Gokal Chand (PW 1) the brother of the deceased instituted a written FIR (Ex.R 1) with the PS. Kherthal with the averments that immediately after the marriage accused appellants Desh Bhandhu and Gulab Devi (mother of Desh Bandhu) started harassing Kamlesh in connection with demand of dowry. Kamlesh resided in her parents house till July 6th and Desh Bandhu came to fetch her. In the month of June he demanded Rs.50,000/- but sum of Rs. 25,000/- could only be arranged and paid to Desh Bandhu, resultantly Kamlesh was done to death by Desh Bandhu and Gulab Devi. Police Station Khairthal initially registered a case under sections 302, 498-A, 304-B and 406 IPC. Against the accused appellants and commenced investigation. Post mortem of dead body of Kamlesh was conducted and accused appellants were arrested. After completion of investigation charge sheet was laid and case was committed 3. Learned trial court on Feb. 3, 1997 framed charges under section 304-B and 498-A of the Indian Penal Code against the accused appellants, who denied the charges and claimed trial. The Prosecution examined as many as eleven witnesses and exhibited seventeen documents. The statements of the accused appellants under section 313 Cr.P.C. were recorded. Accused Desh Bandhu examined himself as defence witness DW 1 learned trial court after hearing the rival submissions convicted and sentenced the accused appellants as indicated above. 4. I have reflected over the rival, contentions and carefully scanned the material on record 5. I shall first take up the allegations in respect of offence under section 304-B of the Indian Penal Code. 4. I have reflected over the rival, contentions and carefully scanned the material on record 5. I shall first take up the allegations in respect of offence under section 304-B of the Indian Penal Code. The primary requirement for finding the accused appellants guilty of the offence under Section 304-B IPC, are that death of the deceased was caused by burns or under marriage and that "soon before her death'' she was subjected to cruelty or harassment by the accused appellants for or in connections with any demand for dowry. 6. Admittedly, Kamiesh was married to accused appellant Desh Bandhu in the month of Feb 1993 and she died on August 28, 1996. Thus the first premise stands established in the case that the death of Kamlesh took place within seven years of her marriage. 7. According to Post Mortem report (Ex.P 6) Kamlesh was well nourished adult female, No wound, no Bruise, no mark of ligature on necljt, no sign of throttling were found on her body. Only four vertical abrasion 11/2cm. size were seen on palmar aspect of her right thumb, they were 3-4 days old and probable caused by kitchen knife. Fracture of cervical 2 (C2) vertibrae dislocation was found. The death was caused due to neurogenic shock due to fracture and dislocation of C2 vertibrae. Post moterm Report (Ex.P 6) was signed Dr. Nirmala Gupta (PW 2) and Dr. Satish Kumar Garg (PW 5). Dr. Nirmala Gupta (PW 2) stated that the aforesaid fracture could be caused by fall. It could be caused after death also. Dr. Satish Kumar Garg (PW 5) deposed that when neck of deceased Kamlesh was open fracture and dislocation of cervical second vertebrae was detected. According to him the injury could be caused by use of force. A look at the proceedings under section 174 Cr.RC. (EX.R 3) reveals that dead body of Kamlesh was lying on a floor of a room. All these facts demonstrate- that death of Kamlesh was caused under abnormal circumstances and the second premise stands established. 8. In order to establish the third ingredient that "soon before her death Kamlesh was subjected to curelty or harassment for or in connection with demand for dowry", a plea is made to resort to the legal presumption envisaged in section 113-B of the Evidence Act. 8. In order to establish the third ingredient that "soon before her death Kamlesh was subjected to curelty or harassment for or in connection with demand for dowry", a plea is made to resort to the legal presumption envisaged in section 113-B of the Evidence Act. It reads as under "113-B. Presumption to dowry death when the question is whether a person has committed the 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 for dowry, the court shall presume that such person has caused the dowry death." 9. On a scrutiny of evidence I am of the view that the provisions achieved in proving at the most that Kamiesh was taken by the accused with him from her parents house on July 6, 1996. In the month of June a sum of Rs.25,000/-was paid to the accused Desh Bandhu out of which he purchased Kinetic Vickey, Washing Machine and Fridge. There is nothing on record to show that Kamiesh was either treated with cruelty or harassed with the demand for dowry during the period between her having been taken to the parental home and her tragic end. 10. Gokal Chand Gupta (PW 1) brother of deceased Kamlesh deposed in his examination in chief that Desh Bandhu and her mother Guiab after giving beating to Kamlesh, sent her to Alwar. They persistently started demanding Rs.50,000/-. Gokal Chand did not fulfil this demand and refused to send back Kamiesh to her in laws house. Thereafter Desh Bandhu came to him with two three persons and promised not to harass Kamlesh but still Kamlesh was not allowed to accompany him. Thereafter Desh Bandhu came in the month of June and demanded Rs.50,000/-. Gokal Chand paid only Rs.25,000/- out of which he purchased a Kinetic Vickey, Washing Machine and Fridge. In the first week of July Desh Bandhu again came and took Kamlesh to his house and she was done to death in the night of August 28. 11. Smt. Angoori (PW 8) stated that Desh Bandhu left Kamlesh in her house on the last Gangaur festival and Kamlesh resided with tier for a period of five six months. Thereafter Desh Bandhu and his relatives came to fetch Kamlesh but she was not allowed to accompany them. 11. Smt. Angoori (PW 8) stated that Desh Bandhu left Kamlesh in her house on the last Gangaur festival and Kamlesh resided with tier for a period of five six months. Thereafter Desh Bandhu and his relatives came to fetch Kamlesh but she was not allowed to accompany them. At last Desh Bandhu came with his tenant and promised not to harass her, then she was allowed to go with them. When Desh Bandhu was taking Kamlesh with him, Smt. Angoori put 'Teeka' on his forehead and paid Rs.5/- to him. 12. Laxmi Devi (PW 9) Sushila Devi (PW 6) and Kalu Ram (PW 10) almost repeated the same story. Kalu Ram is brother of Kamlesh whereas Laxmi Devi is the wife of Gokal Chand and Sushila Devi is her sister. 13. A look at the site plan (Ex.R 5) goes to show that house of one Ram Babu son of Hari Singh is attached to the house in dispute but he has not examined by Investigating Officer. From the statement of Smt. Angoori (PW 8) it is evident that one tenant was also residing in the house of Desh Bandhu who came with him to fetch Kamlesh, but that tenant was also not examined who could be the best witness of the occurrence. Thus the prosecution has failed to prove that Kamlesh was either treated with cruelty or harassed with the demand for dowry during the period between her having been taken to the parental home and her tragic end. 14. Accused Desh Bandhu in the capacity of defence witness (DW 1) stated that on the day of incidence Kamlesh had stomach pain and he gave her Baralgan Tablet. He further stated that Vickey, Fridge and Washing Machine were purchased by him from the money of his mother, withdrawn from the Bank and he did not receive Rs.25,000/'- from Gokal Chand. Dr. Nirmala Gupta (PW 3) stated that fracture of cervical vertebrae could be caused by fall and it could be caused after death also. Thus it cannot be inferred beyond reasonable doubt that Kamlesh was done to death by the accused appellants. 15. In the absence of any such evidence that Kamlesh was subjected to cruelty or harassment soon before her death in connection with the demand for dowry, it is not possible to take recourse to the legal presumption envisaged in section 113-B of the Evidence Act. 15. In the absence of any such evidence that Kamlesh was subjected to cruelty or harassment soon before her death in connection with the demand for dowry, it is not possible to take recourse to the legal presumption envisaged in section 113-B of the Evidence Act. 16. The corollary of the aforesaid finding is that the accused appellants cannot be convicted of the offence under section 304-B IPC. But this would not save them from the offence under section 498-A of the IPC for which there is overwhelming evidence, particularly of sister of Kamlesh Smt. Sushila Devi (PW 6) who stated that when Kamlesh came to attend the marriage of her brother Kalu Ram she stated that the accused appellants used to beat her. She, at that time, had seen abrasions on the neck of Kamlesh. This evidence is admissible under section 32 of the Evidence Act. This statement is corroborated by Gokal Chand (PW 1) Laxmi Devi (PW 9) Kalu Ram (PW 10) and Angoori Devi (PW 8). I, therefore, hold that the prosecution has succeeded in proving the offence under section 498-A IPC. 17. Resultantly, the appeal stands allowed in part. Conviction and sentence passed on the accused appellants under section 304-B IPC stand set-aside but I find them guilty of the offence under section 498-A of the IPC and to this extent the impugned judgment of the learned trial court is confirmed. The accused appellants Desh Bandhu and Smt. Gulab Devi are in custody since August 28, 1996 and they have already served out the sentence awarded to them under section 498-A IPC by the learned trial court. They shall be released forthwith if not required in any other case. Record be sent back forthwith. *******