JUDGMENT 1. - The appellants who are mother and son have filed this appeal against the judgment dated 10.8.1998 delivered by the Additional Sessions Judge, Parbatsar whereby both have been found guilty Under Sections 498A and 304B of the IPC. For the offence Under Section 498A of the I.P.C., each one has been awarded two years simple imprisonment and a fine of Rs. 5,000/- and for non-payment of fine further imprisonment for a period of six months has been ordered. For the offence Under Section 304B each one has been awarded 10 years simple imprisonment. The facts in brief are that the appellants are residents of 'Lawata Ki Dhani' Parbatsar and the complainant side belongs to village 'Maroth'. It is not in dispute that the deceased Smt. Prem, daughter of Jeewanlal (PW-3) was given in marriage to the appellant Surja Ram on 1.4.1993 and on 25.6.1996, she was taken to the hospital, in a precarious condition and died during the treatment at 9.55 AM, on that day. the treating Doctor Kisnaram informed about the fact, by telephone, to SHO, Police Station, Parbatsar. Accordingly a case Under Section 174 of the Cr.P.C. was registered at the said police station and the SHO proceeded to the hospital at Parbatsar. The maternal side of the deceased was informed and her brother PW-9 Bhag Chand, father PW-3 Jeewan Lal and other relatives also reached the hospital. During the investigation of the matter Under Section 174 of the Cr.P.C. the condition of the dead body was recorded in the memo Ex.P/9 which was signed by the brother of the deceased PW-9 Bhag Chand and the cousin Satya Narayan (PW-8) and others. 2. According to the prosecution the father of the deceased PW- 3 Jeewan Lal in the evening, at 6.30 PM, produced a typewritten report Ex. P-2 to the SHO present in the hospital at Parbatsar. According to the FIR Ex.P-2 the marriage took place on 1.4.1993 and during the very first year of the marriage as and when the deceased visited her parental house she complained to the effect that the 'in-laws' were not happy with the dowry and were making demands for cash and ornaments and she is being taunted on that account by the in-laws. Since, Jeewan Ram was not in a position to accede to the demands, every time she was persuaded to go without dowry. Since, Jeewan Ram was not in a position to accede to the demands, every time she was persuaded to go without dowry. According to the FIR, thereafter both the appellants and husband's sister started to beat Smt. Prem regularly and some 15 months prior to her death all the said three persons gave her a severe beating and thereafter, a day prior to 'Deewali' she was left at her parental house by her husband where she spent the next 13 months with her parents. After 13 months allegedly, the husband Surjaram, his father and other persons from Parbatsar came and persuaded the parents to send her to the house of her in-laws. People from the village 'Maroth' also intervened and she was sent with the appellant Surjaram. However, she was again beaten and she went to the house of PW-4 Gopal @ Kalu whose three brothers brought her to her parental house where she remained for two and a half months. Thereafter the appellant Surjaram, his father Chhotu and PW-7 Mohan Lal came to take her and at the assurance furnished by PW-7 Mohan Lal she was again sent to the house of her in-laws. According to the FIR there was no change in the attitude of the appellants and a demand was made for Rs. 10,000/- in cash and for gold weighing 5 Tolas. On 25.7.1996 Jeewan Lal at 1.30 PM was informed about the tragedy whereupon he reached the hospital. According to the FIR there were injuries on the person of the deceased. The FIR ended with the allegation that the appellants murdered Smt. Prem by forcefully administering poison to her. A case Under Sections 498A and 304B of the IPC was registered against three persons including the sister-in-law. However, after investigation, challan was filed against the appellants only in the court of Additional Chief Judicial Magistrate, Parbatsar from where the case was committed for trial to the sessions court. Charges were framed Under Section 498A and 304B on the IPC to which the appellants pleaded not guilty. The prosecution examined 21 witnesses and the evidence was closed on 4.2.1998. Statements of the accused persons were recorded Under Section 313 of the Cr.P.C. on 11.2.1998. After examining DW-1 Babu Lal as defence witness the defence side closed its evidence and the case was listed for final arguments. The prosecution examined 21 witnesses and the evidence was closed on 4.2.1998. Statements of the accused persons were recorded Under Section 313 of the Cr.P.C. on 11.2.1998. After examining DW-1 Babu Lal as defence witness the defence side closed its evidence and the case was listed for final arguments. However, prior to the hearing of the final arguments the learned Public Prosecutor moved an application, on 16.3.1998 Under Section 311 of the Cr.P.C. which was allowed and PW-22 R.S. Sharma, Assistant Director from the FSL, Jaipur was examined as a prosecution witness. Supplementary statements Under Section 313 of the Cr.P.C. were then recorded and thereafter the DW-2 Ram Karan DW-3 Dayal DW-4 Chhitar and DW-5 Kishna Ram were examined by the accused-appellants. The five defence witnesses have stated that they are living in the neighbourhood of the appellants and to the best of their knowledge the relations between the deceased and the appellants were cordial and nothing un-towards ever came to their notice. 3. The learned trial court then heard the arguments and delivered the judgment dated 10.7.1998 against which this appeal has been filed. I have heard the learned Counsel for the appellants and the learned Public Prosecutor for the State and have perused the evidence collected during the trial. 4. The learned Counsel for the appellants has taken me through the entire evidence and it has been argued that without any cogent evidence the findings of conviction have been recorded and the appeal requires to be accepted. It is contended that the whole story of demand of dowry or subjecting the deceased to cruelty is a concoction and the prosecution evidence falls much short of proving the guilt either Under Section 498A or Under Section 304B of the IPC. It is contended that although the death has occurred within 7 years of marriage and the same is unnatural but there is no evidence to suggest that 'soon before' her death she was subjected to any cruelty in respect of any demand of dowry. 5. The learned Public Prosecutor, for the State, has supported the conclusions drawn by the learned trial court and has submitted that apart from the testimony of the mother, father, brother, sister and other relations and necessary independent corroboration has been provided by PW-6 Bhanwar Lal and PW-12 Rajendra Prashad. 5. The learned Public Prosecutor, for the State, has supported the conclusions drawn by the learned trial court and has submitted that apart from the testimony of the mother, father, brother, sister and other relations and necessary independent corroboration has been provided by PW-6 Bhanwar Lal and PW-12 Rajendra Prashad. Further, it is submitted that it has come in the testimony of the sister PW-10 Smt. Santosh that soon after the deceased reached, for the last time, to her in-laws house she met the deceased on a hand-pump where the deceased told her that the appellants are asking her to bring Rs. 10,000/- in cash and 5 Tolas of gold and for that they have been subjecting her to severe beating. According to the learned Public Prosecutor the testimony of PW-10 Santosh proves the fact that 'soon before' the unnatural death of the deceased she was subjected to cruelty on account of a demand of dowry. Further my attention has been drawn towards the testimony of PW-3 Jeewan Lal and PW-9 Bhag Chand wherein they have stated that about 10 days prior to her death, they both visited the house of the appellants and then also, the deceased complained about her harassment by the appellants. In this way according to the learned Public Prosecutor there is cogent evidence to establish that 'soon before' her death the deceased was subjected to cruelty by the appellants on account of demand of dowry. 6. Gyarsi Devi, Bhag Chand and Jeewan Lal have stated in the court, that 10 days prior to the death, Bhag Chand and Jeewan Lal visited the house of the appellants where the deceased Smt. Prem narrated her tale of woes and informed them that she was being harassed by the appellants in respect of their demand of dowry but there is no mention of this visit in the FIR Ex.P/2 which was lodged by none else but Jeewan Lal. Thus, the testimony of the three witnesses is an afterthought and improvement. At the very outset it may be stated that so far as the aforesaid testimony of PW-10 Santosh is concerned the same is also a result of clear improvement and subsequent afterthought. Thus, the testimony of the three witnesses is an afterthought and improvement. At the very outset it may be stated that so far as the aforesaid testimony of PW-10 Santosh is concerned the same is also a result of clear improvement and subsequent afterthought. She no doubt has deposed to the effect that the deceased complained to her about the alleged demand of dowry 'soon before' her death, but it is pertinent to note that the FIR, Ex.P/2, does not make any mention of the said conversation between the deceased and her sister Santosh. Moreover, neither PW-3 Jeewan Lal (father), PW-9 Bhag Chand (brother) and PW-11 Gyarasi Devi (mother) state that any such conversation took place between two sisters, nor PW-5 Ganpat Lal or his son PW-8 Satya Narayan or any other witness make a mention about the said testimony of Smt. Santosh. Had there been any such conversation it was bound to find place in the FIR Ex.P/2 or in the testimony of the mother father brother or any other witness mentioned above. During the investigation the statement, Ex.D-5, of PW-10 Santosh was recorded Under Section 161 of the Cr.P.C. She admits in her cross- examination that Ex.D/5 does not contain any mention regarding the alleged conversation between the two sisters soon before the death of Smt. Prem. The testimony of Smt. Santosh, thus, becomes wholly acceptable it being a clear cut improvement over her statement recording Under Section 161 of the Cr.P.C. 7. The contention that the prosecution story stands fully supported by the independent witnesses PW-6 Bhanwar Lal and PW-12 Rajendra also does not hold much water. They both have stated that they are employed in the 'Khadi Bhandar' where PW-9 Bhag Chand (brother of the deceased) is also employed. PW-6 Bhanwar Lal has stated that the deceased herself told him that the appellants are harassing her in connection with a demand of dowry. However, his this statement recorded in the examination-in-chief has no connection with reality because earlier when his statement, Ex.D/3, was recorded Under Section 161 Cr.P.C. no mention of any such talk, between him and the deceased, was made. To the contrary Ex.D/3 shows that the Investigating Officer pointedly required from the witness about any demand of dowry and Bhanwar Lal, in Ex.D/3, has denied and stated that the deceased never complained to him about any demand in respect of dowry. To the contrary Ex.D/3 shows that the Investigating Officer pointedly required from the witness about any demand of dowry and Bhanwar Lal, in Ex.D/3, has denied and stated that the deceased never complained to him about any demand in respect of dowry. PW- 12, Rajendra Prashad states that he learnt, from his wife, about the cruelty to Smt. Prem but the wife has not been examined. Further, Rajendra does not say that any complaint of cruelty was made against the mother-in-law Bhanwari Bai. It appears that the witness, although does not possess much knowledge in the matter but, has entered the witness-box just to help the prosecution side he being a colleague of PW-9 Bhag Chand. He claims to be a neighbour of Bhag Chand since the year 1990 but does not know about the factum of marriage of the deceased which admittedly took place in April 1993. In this way the testimony of PW-6 Bhanwar Lal and PW-12 Rajendra does not help the prosecution side in any way. 8. The testimony of other near relations also is not such, on the basis of which the conviction can be sustained. From the FIR Ex.P/2 it comes out that during the very first year after the marriage, the appellants started to harass the deceased in connection with the demand of dowry. However, the testimony which has come subsequently, does not support the story that right from the very beginning the harassment started. The mother Gyarsi Devi and other witnesses have stated that during the first two visits to her in-laws' house there was no harassment and it was after the return from the third visit that the deceased, for the first time, made a complaint in respect of her harassment. 9. PW-6 Ganpat Lal has made it expressly clear that after the marriage Smt. Prem remained at her maternal house for complete one year and one year after the marriage she went to the house of her in-laws for the first time. That would make that her first visit to her in-laws' house took place sometime in April 1994. The FIR Ex. That would make that her first visit to her in-laws' house took place sometime in April 1994. The FIR Ex. P/2 discloses that 15 months prior to the lodging of the FIR (around April 1995) the two appellants and the sister-in-law gave the deceased a beating and subsequent to that one day prior to Diwali (around October/November 1995) her husband, the appellant Surja Ram left her at her maternal house where she remained for the next 13 months (up to around Nov. 1996). According to the FIR the appellant Surja Ram, his father Chhotu Ram and many a persons from Parbatsar came to take the deceased with them. According to the report persons of Village 'Maroth' were also collected and after a clear cut assurance that she will not be harassed again the deceased was sent to the house of her in-laws. Thereafter, according to PW-3 Jeewan Lal, she remained at her in-laws' house for about two and a half months but the harassment did not stop and she returned to her maternal house, where she remained for another two and a half months as recorded in the FIR Ex.P/2. It is not in dispute that during the last visit she remained at her in-laws house for about one month before her death. In this way she should be alive till May 1997 whereas infact she died almost one year prior on 25.7.1996. In this way the allegations made in the FIR Ex.P/2 become unacceptable. The learned Public Prosecutor has tried to explain by stating that the mention of dropping the deceased at her maternal house 15 months prior to the lodging of the FIR in the FIR Ex.P/2 is somehow erroneous and instead of 15 months it should read 25 months the same being a typing error. I find that even without referring to Ex.P/2 the other evidence which has come on record by way of sworn testimony goes to show that the mention of 15 months in Ex.P/2 is not erroneous. As pointed out earlier PW-5 Ganpat Lal's testimony is very clear about the factum that during the first one year, after marriage, Smt. Prem remained at her maternal house and was sent to her in-laws house after full one year, i.e. sometime in April 1994. Her first visit, according to her father PW-3 Jeewan Lal, lasted 8-10 days only and she returned to her maternal house. Her first visit, according to her father PW-3 Jeewan Lal, lasted 8-10 days only and she returned to her maternal house. PW-3 Jeewan Lal states that after her return she remained with them for about three months. Her brother PW-9 Bhag Chand has stated that thereafter she went to her in-laws where she stayed for 3-4 months (up to October- November 1994). It is not clear as to how much she stayed at her maternal house after the return from the second visit but according to the PW-9 Bhag Chand during her third visit to in-laws house she remained there for 8-9 months, meaning thereby that she could not have returned to her parental house prior to July 1995. As pointed out earlier it is after this third visit that she, for the first time, complained about the harassment in respect of the demand of dowry. That goes to show that it was the Diwali of 1995 when the appellant Surja Ram allegedly dropped the deceased to her maternal house and she remained there for the next 13 months. In other words she was at her maternal house during the Diwali of 1996 whereas the fact is that she was dead in July 1996. Thus, the case put up in the FIR as well as by the sworn testimony seems to have no connection with any reality. Gyarsi Devi has stated that for the business of Marble Rs. 10,000/- in cash and 5 Tolas gold was demanded. During the cross-examination she was put the question as to how much time after the marriage the said demand was made. She could not reply to this question. The mother and father both have deposed to the effect that when Surja Ram came to drop the deceased on Diwali at their house Surja Ram himself made a demand in respect of Rs. 10,000/- and 5 Tolas gold. This deposition is an improvement and afterthought because neither there is a mention in respect of the same in the FIR Ex.P/2 or in the statements of the two witnesses recorded Under Section 161 of the Cr.P.C. 10. The testimony of PW-5 Ganpat Lal does not help the prosecution in any manner. He claims that although Smt. Prem met him but she did not make any complaint of any nature against her in-laws. The testimony of PW-5 Ganpat Lal does not help the prosecution in any manner. He claims that although Smt. Prem met him but she did not make any complaint of any nature against her in-laws. According to the witness one year after the marriage PW-11 Gyarsi Devi met him and told that the son-in-law Surja Ram according to Smt. Prem was demanding money to start some business. How much money was demanded is not disclosed by the witness. In his examination-in-chief the witness claims that at the guaranty provided by PW-7 Mohan Lal the deceased was allowed to be taken to her in-laws' house. According to the witness this happened in the presence of the PW-6 Bhanwar Lal and PW-12 Rajendra. PW-12 Rajendra does not say that anything like this took place in his presence. According to the prosecution story PW-4 Gopal @ Kalu and PW-7 Mohan Lal are most independent persons in the whole prosecution story. They are said to be the persons who had the first-hand knowledge in respect of the alleged torture and initially she was sent to her in-laws' house at the guaranty of good behaviour provided by PW-4 Kalu and lastly it was the guarantee of good behaviour provided by PW-7 Mohan Lal that she was sent to her in-laws' house. Significantly enough neither of these two witnesses support the prosecution allegation and both have been declared hostile. It has come in the FIR and in prosecution evidence that lot many people from 'Parbatsar' as well as from 'Maroth' were collected during the 'Panchayat' and in their presence the deceased was sent to her in-laws' house but no other persons, who were called in the 'Panchayat' have been examined in support of the prosecution story. 11. Needless to say that the prosecution evidence which has come on record is highly unsatisfactory and falls much short of proving the prosecution case. No doubt it was an unfortunate incident but the evidence on record is not such which can connect the appellants with the crime. 12. The prosecution story is to the effect that Smt. Prem while at her in-laws house was regularly beaten in respect of the demand of dowry. Needless to say that in such an eventuality it is normal that the persons living in the neighbourhood are the best witnesses. 12. The prosecution story is to the effect that Smt. Prem while at her in-laws house was regularly beaten in respect of the demand of dowry. Needless to say that in such an eventuality it is normal that the persons living in the neighbourhood are the best witnesses. But in the instant case not a single person from the neighbourhood has supported the prosecution story in that respect. On the other hand as many as 5 witnesses of the neighbourhood have been examined by the appellants as defence witnesses and they have all deposed to the effect that there is no truth in the prosecution allegations. No specific date, month or year has been disclosed in the evidence nor it is given out as to how many times the deceased was subjected to beating. The witnesses have stated in an omnibus manner and no specific instance has been narrated. The FIR Ex.P/2 also suffers from the same defect. The FIR was not lodged promptly and there is delay in its lodging. It is not in dispute that the maternal side of the deceased was informed promptly and the father, brother and other relations reached the hospital without delay and were present when the police examined the dead-body and prepared the 'Panch Nama' Ex.P/9. Ex.P/9 is signed by the brother Bhag Chand and the cousin Satyanarayan and at that point of time no grievance in respect of the death of Smt. Prem was made and all the documents were prepared Under Section 174 of the Cr.P.C. Subsequently, in the evening at 6.30 PM the FIR Ex.P/2 was presented to the police. 13. In such cases in which the death takes place at in-laws' house, many a times, there is a tendency to implicate the husband and his relations and a story is given which has no relation with reality. In the instant case there is a specific allegation in the FIR that the sister of the appellant Surja Ram was a party in every harassment. It is further stated that the three persons, named in the FIR, forcibly administered poison to the deceased. Further, there is specific mention in the FIR Ex.P/2 that the dead body was examined by the father and there were injuries on the ribs, on the face, on the eye and on the left hand. The allegation about these injuries is not supported by the postmortem report. Further, there is specific mention in the FIR Ex.P/2 that the dead body was examined by the father and there were injuries on the ribs, on the face, on the eye and on the left hand. The allegation about these injuries is not supported by the postmortem report. No witness has stated, in the court, that the sister of the accused Surja Ram was a party to any harassment. The positive allegation in the FIR regarding the forcible administration of poison, admittedly, had no basis. The court has to be careful in such cases in respect of the usual mentality of the complainant side but it appears that no such caution was applied by the learned trial court and the finding of guilt was recorded, which is not sustainable. 14. The result, therefore, is that the finding of the learned trial court against the appellants in respect of the offence Under Sections 304B and 498A is unsustainable, Consequently, the appeal is allowed and both the appellants are acquitted of the charges. The amount of fine, if deposited by them shall be refunded. *******