JUDGMENT 1. - The abovenamed accused-appellants have preferred this appeal against the judgment and order dated 11.8.1997 passed by the learned Judge, Special Court (Women Atrocities & Dowry Cases), Bhilwara in Session Case No. 249/97 by which he convicted the accused-appellants under sections 498-A & 304-B IPC and sentenced in the following manner : Name of accused-appellant Convicted under Section Sentence awarded 1. Radhey Shyam 2. Smt. Badam 498-A IPC Two years' RI and a fine of Rs. 1,000/-, in default of payment of fine, to further undergo, two months' SI. 304-B IPC Seven years' RI. Both sentences were ordered to run concurrently. 2. The facts giving rise to this appeal, in short, are as follows:- On 9.8.1996, PW 7 Jagdish Chandra lodged a report Ex.P/5 before SP, Bhilwara stating inter alia that her daughter Manju aged 21 years (hereinafter referred to as the deceased) was married with the accused-appellant-Radhey Shyam, resident of Tokarwadu on 17t4.1993. After marriage, deceased also got attested one affidavit in this regard on 6.12.1993 and deceased delivered a female child after their marriage. It is further stated in the report that on 4.8.1996, both accused-appellants have murdered deceased by giving her poison and grounds for doing so as narrated in the report Ex.P/5, in short, are as follows : 1. That when deceased delivered the first child, the son of PW 7 Jagdish Chandra went to take the deceased, but accused-appellants refused to send deceased. 2. That child which was delivered by the deceased also died because proper care was not taken by the accused-appellants. 3. That when another attempt was made to take deceased back, it was told by the accused-appellants that Rs. 5,000/- have been incurred on the deceased and they put a condition. that unless and until Rs. 5,000/- are paid, they will not send deceased. 4. That thereafter, accused-appellant-Radhey Shyam further demanded Rs. 33,000/- for purchase of TVS Suzuki Motor Cycle and since the son of PW 7 Jagdish Chandra has scooter, it should also be given to accused-appellant and since this demand was not accepted by PW 7 Jagdish Chandra, therefore, they started harassing deceased. 5. That whenever persons from the side of complainant party went to the house of in-laws of deceased to take deceased, accused-appellants used to abuse them. 6. 5. That whenever persons from the side of complainant party went to the house of in-laws of deceased to take deceased, accused-appellants used to abuse them. 6. That on 4.5.1996 when deceased went to Rajmahal, accused-appellant-Radhey Shyam left deceased on 15.5.1996 in the house of PW 7 Jagdish Chandra for two days and then deceased told to her mother PW 2 Mst. Usha Devi that her husband, mother-in-law (both accused-appellants) and other members of the family used to beat her, abuse her and torture her and they also tried to give poison to her. 7. That thereafter, telephone was received from the in-laws of the deceased that deceased be sent back, but deceased refused to go there. 8. That on 7.7.1996, deceased was sent to Jahajpur and on 8.7.1996 deceased came to Devil and on that day, deceased told that she was beaten by her in-laws and she refused to go there and at that time, accused-appellant-Radhey Shyam promised that in future, no such incident would happen and, thereafter, deceased was sent with him. 9. That on 4.8.1996, deceased has been killed by accused- appellants by giving her poison. 10. That two inland letters Ex.P/2 & Ex.P/3 were also sent with this report Ex.P /5. On this report, police registered the case and started investigation.It may be stated here that before this report Ex.P/5, after the death of the deceased on 4.8.1996, proceedings under section 174 Cr.P.C. were also in-itiated after registering may FIR No. 8/96 and in that proceedings, panchayatnama of the dead body of deceased was prepared which is Ex.P /1 and the post-mortem of the dead body of the deceased was also got conducted by PW 8 Dr. Om Prakash Joshi and the post-mortem reports Ex.P / 7 where the doctor has not opined any cause of death for want of viscera report.After usual investigation, police submitted challan against both the accused-appellants under section 498-A & 304-B IPC before the Court of Magistrate and from where the case was committed to the Court of Session.The learned trial Judge on 29.4.1997 framed charges under sections 498-A & 304-B IPC against both the accused-appellants. The charges were' read over and explained to the accused-appellants. The charges were' read over and explained to the accused-appellants. They denied the charges and claimed trial.During trial, the prosecution examined as may as 16 witnesses and got exhibited several documents and, thereafter, the statements of the accused-appellants under section 313 Cr.P.C. were recorded and some documents were also got exhibited in defence.After conclusion of trial, the learned Judge, Special Court (Women Atrocities and Dowry Cases), Bhilwara through his judgment and order dated 11.8.1997 convicted and sentenced the accused-appellants in the manner stated above holding inter alia that all ingredients necessary for the offence under section 304-B IPC have been proved by the prosecution.Aggrieved from the said judgment and order dated 11.8.1997 passed by the learned Judge, Special Court (Women Atrocities & Dowry Cases), Bhiwlara, the present appeal has been filed by the accused-appellants. 3. In this appeal, the learned counsel for the accused-appellant has raised the following submissions:- 1. That cause of death of the deceased could not be ascertained, therefore, it cannot be said that death of the deceased was unnatural one and thus, it should be treated that death of the deceased was natural one and the learned trial Judge has wrongly held that death of the deceased was unnatural and he has wrongly placed reliance on the statements of PW 2 Mst. Usha Devi, PW 3 Mst. Sheela, PW 6 Rajkumar and PW 7 Jagdish Chandra. 2. That in the present case, there is no evidence to prove that soon before the death of the deceased, she was subjected to cruelty. 3. That case of demand of dowry, motor-cycle etc. against accused-appellants is totally false one. 4. That deceased at the time of marriage was already married with one Sampatlal and she has not taken divorce from him and her marriage with the present accused-appellant-Radhey Shyam was a nata marriage and there was a dispute of Rs. 5,000/- which were to be paid by the present accused-appellant-Radhey Shyam to the previous husband of the deceased and the dispute between accused-appellant-Radhev Shyam and PW 7 Jagdish Chandra was over this amount and thus, no case of demand of dowry of Rs. 5,000 /- is made out against the accused-appellants. Hence, it was prayed that the appeal be allowed and the accused-appellants be acquitted of the charges framed against them. 4. 5,000 /- is made out against the accused-appellants. Hence, it was prayed that the appeal be allowed and the accused-appellants be acquitted of the charges framed against them. 4. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned trial Judge. 5. I have heard the learned counsel for the accused-appellant and the learned Public Prosecutor and perused the record of the case. 6. In Shanti v. State of Haryana, AIR 1991 SC 1226 the Hon'ble Supreme Court had an occasion to explain the ingredients of Section 304-B IPC. His Lordship K. Jayachandra Reddy, (as he then was) said `A careful analysis of Section 304-B IPC shows that this section has the following essentials : 1. The death of a woman should be caused by burns or bodily injury or otherwise than under normal circumstances. 2. Such death should have occurred within seven years of her marriage. 3. She must have been subjected to cruelty or harassment by her husband or any relative of her husband. 4. Such cruelty or harassment should be for or in connection with demand for dowry. 7. In this respect, I would like to first discuss the medical evidence in this case. 8. The post-mortem report in the present case is Ex.P/7 and for proving that, the prosecution has produced PW 8 Dr. Om Prakash Joshi. He states that on 4.8.1996 being Medical Officer, conducted the post-mortem of the dead body of the deceased and he found no injury on the body of the deceased and about the cause of death, he gave the opinion in the following manner : "No definite cause can be ascertained by external and internal examination of deceased, hence, various visceras (mentioned in the report) are preserved and sent to Forensic Science Laboratory (FSL) Jaipur for chemical examination. Final report for the cause of death can only be given after chemical examiner's report." He has proved the post-mortem report Ex.P/7. 9. The prosecution has not been able to prove the viscera report. 10. From the statement of PW 8 Dr. Om Prakash Joshi, it cannot be said that death of the deceased was unnatural one. 11. In this respect, Ex.P/1 Panchayatnama of the dead body of the deceased may be referred to where there is opinion of the panchas. 9. The prosecution has not been able to prove the viscera report. 10. From the statement of PW 8 Dr. Om Prakash Joshi, it cannot be said that death of the deceased was unnatural one. 11. In this respect, Ex.P/1 Panchayatnama of the dead body of the deceased may be referred to where there is opinion of the panchas. In that opinion, it was observed by the panchas that no injury was found on the body of the deceased and final opinion can be given only after seeing post-mortem and FSL report. Thus, from Ex.P /1 also, it cannot be said that death of deceased was unnatural. 12. PW 1 Radhey Shyam is the witness to panchayatnama Ex.P /1 and he has proved his signatures on Ex.P /1 and has further stated that deceased developed abdominal pain and she was admitted in the hospital, where she died. From this statement also, it appear that death of the deceased was natural one. 13. Thus, for the reasons stated above, it is held that death of the deceased in the present case cannot be regarded as unnatural one and thus, findings of the learned trial Judge in this respect cannot be sustained. 14. The next point which is to be considered is whether deceased has been subjected to cruelty or harassment by her husband and other relatives and further to see whether such cruelty or harassment should be for or in connection with demand of dowry or not. 15. The prosecution must prove with some positive evidence that there must be material to show that soon before her death, the victim was subjected to cruelty or harassment. 16. In the cases of dowry death and suicide, circumstantial evidence plays an important role and inferences can be drawn on the basis of such evidence, that could be direct or indirect. In this respect, conduct of the husband and other relatives also plays a very vital role in coming to the conclusion of the guilt. 17. The term `dowry' is not defined in the Indian Penal Code. In this respect, conduct of the husband and other relatives also plays a very vital role in coming to the conclusion of the guilt. 17. The term `dowry' is not defined in the Indian Penal Code. However, it has been defined in the Dowry Prohibition Act, 1961 as `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; (b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties'. 18. Though the expression `cruelty' is not defined in Section 304-B, it has been defined in Section 498-A. But having regard to the common background of the offences punishable under sections 498-A & 304-B, one has to take the meaning of `cruelty' or `harassment' as the same is found in the Explanation to Section 498-A. 19. Maltreatment and demand and lust for money from beginning of marriage, subjecting the deceased to torture and assault on refusal to fulfil demand of money and not being allowed to meet or talk to her family members will amount to cruelty. 20. In this case, there are two sets of witnesses and one set of witnesses belong to the family of the deceased. 21. PW 2 Smt. Usha Devi is the mother of the deceased, who has admitted in her examination : 1. That Rs. 5,000/- were given by accused-appellant-Radhey Shyam. 2. That first husband of the deceased is alive and divorce has not taken place between the deceased and her first husband. 3. That demand of motor cycle and TV which she has narrated in her statement before the Court, has not been found in her police statement Ex.D/ 1. 22. The next witness is PW 3 Mst. Sheela, who is the sister of the deceased and she has stated in her statement that both deceased and accused-appellant-Radhey Shyam lived together happily for one year, but in cross-examination, she has admitted : 1. That the fact of giving opium has not been found in her police statement Ex.D/ 2. 2. That deceased met her four times, but complaint was made only twice. 3. That living standard of in-laws of deceased is good. That the fact of giving opium has not been found in her police statement Ex.D/ 2. 2. That deceased met her four times, but complaint was made only twice. 3. That living standard of in-laws of deceased is good. 4. That cruelty by mother-in-law of deceased has not been found in her police statement Ex.D/ 2. 23. Another witness is PW 7 Jagdish Chandra, who is father of the deceased and in examination-in-chief he has stated as usual, but in cross-examination, he has stated : 1. That demand of motor cycle and TV was told by deceased only once. 2. That when the proceedings under section 174 Cr.P.C. were being conducted by SDO, he did not tell anything to him nor make any complaint before him. 3. That he has never told to anybody at Tokarwadu about the demand of dowry by accused-appellants. 4. That demand of TV is not found in the report Ex.P/5. 5. That it is also correct to say that accused-appellant-Radhey Shyam did not demand any money, but he demanded motor cycle. 6. That no demand has ever been made by accused-appellants before him and whatever he has written, it has been written as per the saying of his wife and deceased. 24. The other set of witnesses are as follows : 25. PW 1 Radhey Shyam has clearly stated that deceased and accused-appellant used to live happily and he has never heard any sort of quarrel between them and deceased was never beaten by accused-appellants. Similar is the statements of PW 9 Prahlad Singh and PW 10 Mohanlal. 26. It may be stated here that these witnesses have not been declared hostile and, therefore, there is no reason why their statements should not be believed. Thus these witnesses rebut the so-called case of the prosecution as is found in the statements of witnesses, who are relatives of the deceased. 27. In my opinion, the so-called evidence of the first set of witnesses is vague in nature. From the statements of PW 2 Mst. Usha Devi, PW 4 Mst. Bhanwari, PW 10 Mohanlal and PW 11 Ram Kumar, it further appears that dispute with respect to Rs. 5,000/- is not as that as stated by PW 7 Jagdish Chandra. From their statements, it appears that Rs. From the statements of PW 2 Mst. Usha Devi, PW 4 Mst. Bhanwari, PW 10 Mohanlal and PW 11 Ram Kumar, it further appears that dispute with respect to Rs. 5,000/- is not as that as stated by PW 7 Jagdish Chandra. From their statements, it appears that Rs. 5,000/- was to be given by accused-appellant-Radhey Shy am to the first husband of the deceased and PW 7 Jagdish Chandra wanted that this amount should be given through him and thus, if there was a dispute between accused-appellant-Radhey Shyam and father of the deceased with respect to Rs. 5,000 / - which were to be given to first husband of the deceased, it does not reflect in any manner with the called demand of dowry. The fact that when the proceedings under section 174 Cr.P.C. were being conducted by SDO and PW 7 Jagdish Chandra was there and he has not stated anything nor lodge any report before him goes to show that such demands which are narrated in the report Ex.P /5 may be after thought. 28. When the first ingredient of Section 304-B IPC that death of the deceased should be caused by burns or bodily injury or otherwise than in normal circumstances is missing, the case of the prosecution for the offence under section 304-B IPC against the accused-appellants comes to an end. Apart from this, when there are two sets of evidence one favouring the accused-appellants and other favouring the prosecution case, in such a situation, case favouring the accused-appellants should be given weight and accused-appellants would have the benefit of such situation. For that, the decision of the Hon'ble Supreme Court in Harchand Singh & Anr. v. State of Haryana, AIR 1974 SC 344 may be seen, where the following proposition of law has been laid down : "Evidence Act (1872), Section 3-In a case where the prosecution leads two sets of evidence, each one of which contradicts the other, it is difficult to found the conviction of the accused." 29. v. State of Haryana, AIR 1974 SC 344 may be seen, where the following proposition of law has been laid down : "Evidence Act (1872), Section 3-In a case where the prosecution leads two sets of evidence, each one of which contradicts the other, it is difficult to found the conviction of the accused." 29. Thus, from every point of view the evidence produced by the prosecution for the offence u/ sections 498-A & 304-B IPC against the accused-appellant is neither trustworthy nor reliable so as to connect the accused-appellants with the commission of the crime and thus, the findings of the learned trial Judge convicting the accused-appellants for the offence under sections 498-A & 304-B IPC cannot be maintained and the same are liable to be set aside.In the result, the appeal filed by the accused-appellants-Radhey Shyam and Smt. Badam is allowed and the impugned judgment and order dated 11.8.1997 passed by the learned Judge, Special Court (Women Atrocities and Dowry Cases), Bhiwlara are set aside and the accused-appellants are acquitted of the charges u/ sections 498-A & 304-B IPC. Since accused-appellants-Radhey Shyam and Smt. Badam are in jail, they be released forthwith, if not required in any other case.Appeal allowed. *******