JUDGMENT 1. - Kailash and two others, through this appeal under Section 374 Cr. P.C., have called in question the judgment dated 4th of April 1997 of the learned Additional Sessions Judge No. 3, Alwar, whereby he convicted them under Sections 304-B and 498-A, IPC. and sentenced each of them to undergo rigorous imprisonment for seven years under the first count and 3 year R.l. and a fine of Rs. 250/- under the second count. 2. The case for prosecution, in short, is this. Smt. Sarla (deceased) was married to accused appellant Kailash Chand in 1992. She died on 23rd of August 1996 by fall in a well, which was situate near the house of Kailash Chand. The F.I.R. Ex. P 5 was lodged by Ram Swaroop, P.W. 6, father of the deceased, in which it was stated that Kailash Chand, Babu lal (father in-law) Bhagwati (mother- in-law) Prahlad and Basanta (brothers in-law) used to cause cruelty (sic) to Sarla in relation to their demand of dowry and they caused her death by beating her in the evening of 23rd of August 1996. On this report, a case under Section 498-A and 304 B IPC. was registered. The autopsy of the body was performed by Dr. Amar Singh, P.W. 16, who prepared the Post-Mortem report Ex. R 14. He opined that there were seven injuries on the person of Sarla and one of the injuries was lacerated wound on the scalp occipito parietal region. After the completion of the investigation the police submitted a challan against the three appellants and Prahlad. 3. The trial Court framed charges under Section 304-B and 498-A IPC. against all the four accused, who pleaded not guilty. The prosecution examined P.W. 1 Raju, P.W. 2 Babu Lal, P.W. 3 Shiv Narain, PW. 4 Jai Narain, PW. 5 Jai Kishan, P.W. 6 Ram Swaroop, P.W. 7 Nand Kishore, PW. 8 Phoolwati, P.W. 9 Chameli, P.W. 10 Kajod Ram, P.W. 11 Nathu Ram, P.W. 12 Laia Ram, P.W. 13 Ram Niwas, P.W. 14 Laxman Prasad, P.W. 15 Murlidhar, P.W. 16 Dr. Amar Singh, P.W. 17 Mahavir Singh, P.W. 18 Duli Chand, and P.W. 19 Rajesh Verma. Accused in their statements under Section 313 Cr.P.C. denied the accusation. Accused Prahlad pleaded alibi. Amar Singh, P.W. 17 Mahavir Singh, P.W. 18 Duli Chand, and P.W. 19 Rajesh Verma. Accused in their statements under Section 313 Cr.P.C. denied the accusation. Accused Prahlad pleaded alibi. The case set up by accused Bhagwati alias Bhagoti and Kailash was that the deceased had fallen in love with accused Basanta and as her husband Kailash was that the deceased had fallen in love with accused Basanta and as her husband Kailash had seen their relations he was annoyed and he expressed his intention to divorce her, on which Sarla left the house on the pretext of calling the answer of nature but she never returned and her dead body was taken out from the well. The accused examined four witnesses in defence. They are D.W. 1 Shivratri Giri, D.W. 2 Raju, D.W. 3 Nadan Singh and D.W. 4 Ghanshyam Das. After hearing the counsel for the parties, the learned Additional Sessions Judge held that Sarla had died in suspicious circumstances. He further held that the death of Sarla was caused by Kailash, Basanta and Bhagwati in relation to the demand of dowry. He, therefore, convicted all the three accused as stated above. He, however, acquitted Prahlad of all the offences charged with. 4. Mr. Bajwa, learned counsel for the appellants contended that the trial Court has not property appreciated the evidence and has erred in convicting the appellants. Pointing out the improvements made by the witnesses in their statements during the course of the trial, he submitted that the testimony of the witnesses should not have been relied upon by the trial court. Pointing out that there were two sisters in the same family, Mr. Bajwa canvassed that it was not possible for the accused to have caused (sic) cruelty to Sarla. He also pointed out that no blood was found in the house of the accused where the injuries are said to have been caused to Sarla, which, he argued, shows that no incident as stated by Phoolwati, P.W. 8, had taken place. 5. On the other hand, the learned Public Prosecutor tried to support the judgment of the trial court. His contention was that the testimony of the witnesses should not be discarded on the ground of the presumption under Section 113-B, Evidence Act to support the findings recorded by the trial Court. 5. On the other hand, the learned Public Prosecutor tried to support the judgment of the trial court. His contention was that the testimony of the witnesses should not be discarded on the ground of the presumption under Section 113-B, Evidence Act to support the findings recorded by the trial Court. He submitted that if the statement of Phoolwati is not believed in respect of the occurrence of beating on 23.8.1996, there is convincing evidence on record to hold that Kailash used to cause (sic) cruelty to Sarla in relation to demand of dowry and that Basanta had caused (sic) cruelty of grave nature so as to drive Sarla to commit suicide. 6. I have given the matter my thoughtful consideration. It is no more in dispute that Sarla had died within seven years of her marriage in the matrimonial home. It is also not in dispute that she had not met natural death. Now the question for consideration is whether Sarla was subjected to cruelty in the matrimonial home in relation to the demand of dowry, and if so, by whom? 7. The prosecution has relief on the testimony of P.W. 6 Ram Swaroop (father), P.W. 9 Chameli (mother), P.W. 8 Phoolwati (sister), P.W. 7 Nand Kishore (uncle) P.W. 5 Jai Kishan (brother), P.W. 10 Kajod Ram and P.W. 12 Lala Ram (maternal uncles of the deceased) and PW. 4 Jai Narayan.Smt. Phoolwati deposes that on the date of death of Sarla, she had been given merciless beating by Kailash and other family members and they had caused the death of Sarla by throwing her in the well. This part of the statement of Phoolwati does not seem to be true. The circumstances on record do not show that Sarla was given beatings on the date of occurrence. No blood or trace of blood was found by the I.O. when the house of accused Kailash was inspected. P.W. 9 Rajesh clearly says that he did not see blood any where in the house. He also says that he did not see the marks of dragging in the house. It is, therefore, obvious that this part of the statement of Phoolwati is not correct that she had seen the accused giving merciless beating to the deceased.This part of the prosecution story is not supported by the medical evidence also. Dr. He also says that he did not see the marks of dragging in the house. It is, therefore, obvious that this part of the statement of Phoolwati is not correct that she had seen the accused giving merciless beating to the deceased.This part of the prosecution story is not supported by the medical evidence also. Dr. Amar Singh P.W. 16 had performed autopsy on the body of Sarla. He found only one lacerated wound and four abrasions and one contusion on the body of Sarla. Dr. Amar Singh admits that the lacerated wound could be caused by a fall in the well if the injured part came in contact of the wall of the well. He also says that abrasions could also be sustained while falling in the well. As to the contusion, which was of the size of 10x8 cm, it may be stated that Phoolwati does not say that the injuries were caused by any weapon of length of 10 cm. Therefore, this injury also seems to have been sustained by a fall in the well. Since the testimony of Phoolwati does not get corroboration from the medical evidence, it has to be found that this part of the prosecution story is not correct that the deceased was given beatings on the date of occurrence and she was thrown by the accused persons in the well. 8. It appears that some oral conversation had taken place in the evening of 23rd of August, which could not be tolerated by Sarla, who left the house all alone and jumped into the well. 9. The gist of the statements of the witnesses is that Kailash accused, who is the husband of the deceased, used to cause cruelty (sic) to the deceased in relation to the demand of the dowry. They state that only two months before the death of Sarla, accused Kailash had visited the house of Ram Swaroop and had demanded Rs. 15,000/- for purchasing a colour T.V., which amount was paid to him. The witnesses further state that some ten fifteen days thereafter again accused Kailash visited the house of Ram Swaroop and made a demand of Rs. 50,000/- to open a shop but his demand was not met. 10. There is consistency in the statements of the witnesses on this fact that accused Kailash had demanded Rs. The witnesses further state that some ten fifteen days thereafter again accused Kailash visited the house of Ram Swaroop and made a demand of Rs. 50,000/- to open a shop but his demand was not met. 10. There is consistency in the statements of the witnesses on this fact that accused Kailash had demanded Rs. 15,000/- from Ram Swaroop for purchasing a colour T.V. and that he was paid the sum. it is also in evidence that Ram Swaroop had already given a T.V. in the marriage of Sarla but it was black and white, which was not liked by accused Kailash and, therefore, he had raised demand of Rs. 15,000/- to purchase a colour T.V. Some discrepancies have been pointed out in the statements of the witnesses as to when the complaint was made by the deceased to her parents about the T.V. set given in marriage by the accused Kailash but those discrepancies are of negligible nature. Some differences are bound to appear in the statements of the witnesses. Every witness can not remember the instances in the same sequence and in the same manner. The trial court has not, therefore, erred in relying on the statements of Ram Swaroop, P.W. 6, Chameli, P.W. 9, Nand Kishore P.W. 7 and Jai Narayan P.W. 4 to hold that the accused Kailash had demanded Rs. 15,000/- from Ramswaroop for the purchase of the T.V. set just two months before the date of occurrence and he had taken that amount and further that he had asked for Rs. 50,000/- but his demand was not met.It is further borne out from the statements of these witnesses that accused Kailash used to give beatings to Sarla. PW. 8 Phoolwati, who is the real sister of deceased and is married to the real brother of accused Kailash says that the accused used to give beatings to Sarla and harass her. There is thus ample evidence on record on this fact that accused Kailash used to cause cruelty (sic) to Sarla in relation to the demand of dowry.The circumstance that two sisters had been married in the same family does not rule out the cruelty to Sarla. It is in the statement of Phoolwati that her husband also used to harass her for dowry. 11. It is in the statement of Phoolwati that her husband also used to harass her for dowry. 11. As already stated, the death of Sarla has occurred in the matrimonial home within seven years of her marriage and her death was not natural. Kailash obtained money just before two months of the death of Sarla and he had made a demand of further sum of Rs. 50,000. According to Phoolwati, Kailash used to beat Sarla. It is obvious that cruelty was caused (sic) soon before the death. There is, therefore, strong presumption under Section 113-B of the Evidence Act that the dowry death of Sarla has been caused by accused Kailash. His conviction under Section 304 B and 498 IPC. is, therefore, well-merited. 12. The case against Bhagwati (mother-in-law) of deceased is not free from doubt. There is no evidence on record that Bhagwati had ever made demand of dowry or any amount from any of the witnesses. Rather it has come in the statement of P.W. 9 Chameli that no demand of dowry was made at the time of marriage. It is, therefore, obvious that there is not evidence of demand of dowry by Bhagwati. Only vague evidence has been given by the witnesses that she also used to cause (sic) cruelty to the deceased. Even Phoolwati P.W. 8 does not say in clear words that she had seen accused Bhagwati asking for the dowry or giving beatings to the deceased. The conviction of Bhagwati, therefore, under Section 304B IPC. or 498 IPC. is not sustainable. 13. Now we take up the case against accused Basanta. There is no evidence that he had ever gone to Ram Swaroop or other family members and made a demand of dowry or any thing. So far as the demand of dowry is concerned, his case is at par with the case of Bhagwati. There being no clear evidence of demand of dowry by him the conviction of this accused can not be sustained under Section 304 B IPC.However, there is ample evidence on record that he used to cause cruelty (sic) to the deceased. It has come in the statement of Jai Kishan that accused Basanta had misbehaved with Sarla. It has also come in the statement of Ram Swaroop P.W. 6 that Basanta used to misbehave with Sarla and even had bitten her cheeks. It has come in the statement of Jai Kishan that accused Basanta had misbehaved with Sarla. It has also come in the statement of Ram Swaroop P.W. 6 that Basanta used to misbehave with Sarla and even had bitten her cheeks. It is significant to point out that even accused Basanta in his statement under Section 313 Cr.P.C. admits that he had developed sexual relations with Sarla. There is thus ample material on record to say that the accused Basanta had caused (sic) cruelty to the deceased and had put her in such a situation which was likely to drive Sarla to commit suicide, which was likely to drive Sarla to commit suicide. His act in misbehaving with Sarla, who was his sister-in-law and biting her cheeks and developing sexual relations with her amounts to abetment of commission of the suicide by Sarla. In my opinion, he has committed the offence under Section 306 IPC. besides under Section 498 A IPC. 14. Though no charge under Section 306 IPC. was framed against his accused yet keeping in view the facts collected during investigation, a charge under Section 306 IPC. could also be framed against him, and the charge under Section 304 B IPC. which is major offence has been framed against him, there is no legal impediment in convicting him under Section 306 IPC. 15. Consequently the appeal of Bhagwati succeeds. While setting aside her conviction and sentence, she is acquitted of the offence under Section 304 B and 498 IPC. She is on bail. She shall not surrender to the bail bonds.The sentence awarded to Kailash cannot be said to be excessive. His appeal being devoid of merit is dismissed.Maintaining the conviction and sentence of Basanta under Section 498-A IPC., his conviction under Section 304-B I.P.C. is altered to Section 306 IPC. He shall undergo R.l. for four years under Section 306 I.P.C. The sentences under both the counts shall run concurrently. *******