JUDGMENT 1. - This appeal has been preferred by the convict Himmat Singh S/o Madan Singh, By caste - Charan, Resident of - Village Devalia, District - Banswara against the Judgment dated 27.5.1991 delivered by the Sessions Judge, Banswara whereby the appellant was found guilty under Section 304 - B of the I.PC. He has been awarded a sentence of rigorous imprisonment for 7 years' with a fine of Rs. 100/- and for non - payment of fine, further rigorous imprisonment for a period of 1 month. 2. The appellant Himmat Singh was married, on 20.4.1984, to Smt. Chetan Kanwar D/o Shri Mansingh Charan (PW-10) of Village Bharori. Smt. Chetan Kanwar breathed her last during the night intervening 16th and 17th August, 1987 at the house of the appellant in Village Devalia. Upon, some information PW-14 Prithvi Singh, ASI of Police Station Banswara Sadar, alongwith Constable Lal Chand, proceeded to Village Devalia where the dead body of Chetan Kanwar was placed in the house of the appellant. Prithvi Singh prepared the memo (Ex.P/15), on the basis of which, a case under Section 174 of the Cr.PC. was registered at Police Station Banswara Sadar. post-mortem of the dead body was conducted on 17.8.87 by a three member Medical Board consisting of Dr. Lal Chand (PW/9), Dr. S.K. Jain and Dr. Uma Gupta and the post-mortem Report (Ex.P/9) was prepared, according to which, the cause of death was asphysxia. 3. Two days later, on 19.8.1987 at 10.30 A.M. PW/5 Guman Singh (brother of the deceased Chetan Kanwar) lodged a written FIR Ex.P/5A at Police Station Banswara. According to the FIR Ex.P/5A, the appellant Himmat Singh and his father Madan Singh both were harassing Chetan Kanwar in respect of their demand for dowry and she was occasionally beaten by both of them. Further it was alleged that after the first delivery at her father's house, she was sent back to her in - laws house and about 3 - 4 months thereafter when her father Madan Singh (PW-10) went to see her, she narrated the story of atrocities in detail and expressed the apprehension that her husband and father-in-law may murder her any day. In such a situation, she was brought to her maternal house by her father where she remained for the next 9-10 months. In such a situation, she was brought to her maternal house by her father where she remained for the next 9-10 months. After 9-10 months, she was taken to her in - laws house by her brother Lalit Singh (PW-18) and cousin Fateh Singh (PW-12). Initially the entry was refused but later, the in - laws agreed to keep her. According to the report, a common relation, Prahalad Singh (PW-7) informed the complainant side that the appellant Himmat Singh needs Rs. 10,000 - 20,000 and if the money was not paid the complainant side shall suffer serious consequences. According to the report, a demand in respect of a gold chain and a sewing machine was also made by the appellant through a letter. The report further stated that in the month of June, 1997, in the first week, the complainant Guman Singh had visited the house of the appellant but the appellant refused to talk to him and Chetan Kanwar made a complainant to the effect that she was regularly being belaboured by the appellant in order to extort more dowry. It was highlighted in the FIR Ex P/5A that Chetan Kanwar was quite hale and hearty and was seen moving about in the fields on the previous evening and was not suffering from any ailment. It was further alleged that the appellant and other members of his family were actually preparing to perform her last rites without any post-mortem of the dead body but the villagers refused to co-operate and consequently the police appeared after some body gave an information to the police. At the end, it was mentioned that Chetan Kanwar was murdered by the appellant Himmat Singh in connection with the demand of dowry. A case under Section 498 - A & 304 - B of the I.P.C. was registered and the investigation started. The statements of the complainant Guman Singh and other witnesses were recorded under Section 161 of the Cr.P.C. On the basis of the evidence collected a challan under Section 498-A and 304-B of the I.P.C. was filed against the appellant Himmat Singh, his father Madan Singh and mother Smt. Phool Kanwar in the Court of the Chief Judicial Magistrate, Banswara from where the case was committed to the Court of the said trial Court. The three accused persons were charged for the offence under Section 304 - B of the I.P.C. and all the three pleaded not guilty. 4. The learned Public Prosecutor then opened his case and examined as many as 18 witnesses in support of the prosecution story. No defence evidence was led by the accused persons. The learned trial Court then heard the arguments and delivered the judgment on 27.5.1991. Madan Singh and his wife Phool Kanwar were found not guilty and both were acquitted of the said charge. The appellant Himmat Singh was found guilty and convicted in the aforesaid manner and he has filed this appeal. 5. I have heard the learned Public Prosecutor for the State and the learned counsel for the appellant and have perused the record of the case. PW-6 Dr. Sudhendra Bhatnagar has stated that on 7.8.1987 two persons of Village Devalia came rushing to him at the Primary Health Centre, Talwada and informed that a pregnant woman was seriously in - disposed. The doctor was to go to some other place in connection with some camp but on the insistence of the said persons went to Village Devalia. However, before he could reach, the woman was already dead. The villagers requested him to issue a death certificate but since it was the death of a pregnant lady, he advised that a post-mortem at the Govt. Hospital, Banswara was required and returned to his dispensary. PW-9 Dr. Lal Chand has stated that the autopsy was performed by a Medical Board consisting of three doctors on 17.8.1987 and the postmortem report Ex.P/9 was prepared by them. According to the witness, cause of death was asphyxia. In the cross - examination the witness stated that asphyxia could be caused as a result of ailment of tetanus. He clarified that there were not external injuries on the body of the deceased. PW/14 Prithvi Singh, ASI has stated that on some information of the death, he had gone to Village Devalia where the dead body of Chetan Kanwar was lying in the house of the accused persons. The witness has stated to the effect that he examined the dead body and prepared .the `Panchnama' Ex.P/1 and a case under Section 174 of the Cr.PC. was registered vide the memo Ex.P/15 which was prepared by him. The witness has stated to the effect that he examined the dead body and prepared .the `Panchnama' Ex.P/1 and a case under Section 174 of the Cr.PC. was registered vide the memo Ex.P/15 which was prepared by him. PW/15 Abhay Singh is the S.H.O. of the Police Station who has stated that the case was investigated by him during which certain specimen writing of the appellant Himmat Singh were obtained by the Munsif and Judicial Magistrate, Banswara which were subsequently sent for examination to the FSL, Jaipur and after the examination of writings the report Ex.P/16 was received. PW/16 Gajendra Singh, Sub - Inspector and PW/17 Narendra Mohan, Dy. S.R have stated that the case was partly investigated by them and the statements of certain witnesses were recorded. 6. PW/1 Dev Shankar Brahamin, PW/2 Ramesh Chandra Suthar, PW/3 Devi Lal Kalal, PW/5 Manak Patel and PW/6 Kishore Singh Daroga, all are residents of Village - Devalia and were examined to prove the prosecution story against the three accused persons but none of them corroborated the prosecution story and all the five were declared hostile. 7. PW/5 Guman Singh, PW/10 Man Singh, PW/12 Fateh Singh and PW/18 Lalit Singh are the close relations of the deceased and they have tried to support the prosecution story. PW/7 Prahalad Singh, PW/11 Amar Singh and PW/13 Amba Lal have been examined to provide independent corroboration. However, PW/7 Prahalad Singh, who is a brother-in-law of PW/5 Guman Singh has denied the whole prosecution case and has turned hostile. PW/11 Amar Singh is a chance witness whose testimony has not been relied by the learned trial Court and his testimony is to the effect that his daughter is allegedly married in a nearby Village which is 2 Km. away from village Devalia. He has stated that he went to meet the appellant Himmat Singh in connection with the purchaser of a pair of oxens and halted in village Devalia for the night. He has stated that after mid - night, he heard the cries of a woman from the house of the accused persons upon which he called the appellant out who come out and told that it was a delivery case and hence the noise. The witness stated that during early hours of the morning at 5.00 a.m., he left the village. The witness stated that during early hours of the morning at 5.00 a.m., he left the village. Evidently he is a chance witness and it is not acceptable that he spent the night in village Devalia in the house of unknown persons while the house of his daughter was situate only 2 Kms. away from Village Devalia. PW/13 Amba Lal is a witness from Udaipur who was examined to prove that he learnt from Guman Singh that the in - laws of his married sister were asking for Rs. 10,000 - 15,000/- cash and a sewing machine. This witness has no personal knowledge and his testimony is all hearsay. 8. The testimony of PW/5 Guman Singh, PW/10 Man Singh, PW/12 Fateh Singh and PW/18 Lalit Singh who are close relation of the deceased also does not inspire much confidence. Their statements are contradictory, unnatural and not inconformity with the story narrated in the FIR PW/5. Guman Singh is the brother of the deceased and the lodger of the FIR Ex.P/5A. In his examination-in-chief, his testimony is to the effect that right from the day of the marriage the harassment started and many times when he went to the house of the appellant, the deceased used to narrate the tale of her woes to him. She was always down - caste and sad and would keep on tell him that she is regularly being beaten at her in - laws' place in connection with the demand of dowry. Sewing machines and a chain of gold, allegedly, were demanded. He has stated that all the three accused persons i.e. the father-in-law, mother-in-law and the husband were involved in the torture. According to the witness after the delivery of the first child she was again sent to the house of the accused persons but there was no change in their behaviour and as a result of the continues torture, she was brought back to the parental house where she remained for almost one year. The witness further states that his brother-in-law PW/7 Prahalad Singh was sent by the accused persons with demand of Rs. 10,000 - 20,000/- . He further states that on 1.7.1987 he went to Village - Devalia but neither he was alleged to meet his sister Chetan Kanwar nor the appellant Himmat Singh talked to him. The witness further states that his brother-in-law PW/7 Prahalad Singh was sent by the accused persons with demand of Rs. 10,000 - 20,000/- . He further states that on 1.7.1987 he went to Village - Devalia but neither he was alleged to meet his sister Chetan Kanwar nor the appellant Himmat Singh talked to him. This part of the statement is contrary to the specific allegation made in the FIR Ex.P/5A wherein it is mentioned that when he visited the house of the accused persons, he had a detailed talk with Chetan Kanwar who narrated in detailed as to how she was being maltreated by her husband Himmat Singh. 9. I find that PW/5 Guman Singh is not a witness of sterling worth, and does not have much respect for oath. In the FIR Ex.P/5A lodged by him with a delay of about 48 hours, the allegations are against two persons only. It is no where stated that the mother-in-law Phool Kanwar was a party to the harassment. However, the witness has improyed in the court and has come out with a story that all the three accused persons used to torture Smt. Chetan Kanwar. The allegation made in the FIR to the effect that when he visited Village Devalia he had a detailed talk with Chetan Kanwar is belied by his testimony in the court wherein he has stated that the accused persons did not permit him to meet Chetan Kanwar. In his examination-in-chief his deposition is to the effect as if he visited the house of the appellant in Village Devalia a number of times and every time Chetan Kanwar complained about her torture. However, in cross - examination he had to admit that his only visit to Village Devalia was in June - July, 1987 i.e. about a month prior to her death. Needless to say, no conviction can be based on the testimony of such a person. 10. PW-10 Man Singh is the father of the deceased. He has deposed to the effect that Rs. 2,000/- were demanded one month prior to the marriage through PW/7 Prahalad Singh. According to the witness when he went to Village Devalia in May, 1984 Madan Singh and Himmat Singh made a demand in respect of 5 tola gold. 10. PW-10 Man Singh is the father of the deceased. He has deposed to the effect that Rs. 2,000/- were demanded one month prior to the marriage through PW/7 Prahalad Singh. According to the witness when he went to Village Devalia in May, 1984 Madan Singh and Himmat Singh made a demand in respect of 5 tola gold. Further according to the witness in May, 1985 when he visited Village Devalia Madan Singh and Himmat Singh again demanded 5 tola gold from him. According to the witness on 16.3.1986 the said two accused persons demanded 5 tola gold and Rs. 2,000/- in cash. He further states that in March, 1987 the appellant Himmat Singh repeated his demand in respect of 5 tola gold and Rs. 2,000/- in village Bharori. He further states that in August, 1987, a demand of Rs. 10,000/- was made through Prahalad Singh. 11. I find that the witness has deposed in a most irresponsible way and his testimony neither find corroboration from the FIR nor it is corroborated by any other witness. According to this witness a relative Parbat Singh came to him and informed that Chetan Kanwar was subjected to severe beating in Village Devalia. He further states that in August, 1987 soon before the death, one Guman Singh came to him and informed that Chetan Kanwar has been subjected to severe beating in Village Devalia. Neither Parbat Singh and Guman Singh have been examined nor the allegations in respect of them find place in the FIR Ex.P/5A. The allegation of alleged beating in August, 1987 does not find corroboration from the post-mortem report. 12. PW/18 Lalit Singh is brother of the deceased. He has stated that a month prior to the marriage Hirhmat Singh made a demand of Rs. 2,000/- through a letter. However, no such letter has been produced. The witness states that in May, 1987 when he visited the house of the accused persons alongwith PW/12 Fateh Singh, a demand for dowry and cash was made by the accused persons. However, PW/12 Fateh Singh does not provide any corroboration in respect of the said testimony. He does not say that any demand was made before them. PW/18 Lalit Singh in his cross - examination makes an improvement and states that after May, 1987 a demand of Rs. 20,000/- was made through PW/7 Prahalad Singh. However, PW/12 Fateh Singh does not provide any corroboration in respect of the said testimony. He does not say that any demand was made before them. PW/18 Lalit Singh in his cross - examination makes an improvement and states that after May, 1987 a demand of Rs. 20,000/- was made through PW/7 Prahalad Singh. However, even PW/10 Man Singh does not corroborate this part of the testimony. PW/12 Fateh Singh is a cousin of the deceased. He has stated that a demand of Rs. 5,000 - 10,000/- was conveyed to him and he informed PW/5 Guman Singh in respect of the same. However, Guman Singh no where states that any such demand was received through PW/12 Fateh Singh. PW/12 Fateh Singh further states that demands for dowry were received through Harlal and Chunnilal. However, no other witness states that any demand was received through Harlal and Chunnilal nor there is mention of any such demand in FIR Ex.P/5A. Harlal and Chunnilal have not been examined. In this way the testimony of the witnesses is highly unsatisfactory. Guman Singh has deposed in detail against all the three accused persons. His father Man Singh does not say a single word against the accused Phool Kanwar. There is an allegation in the FIR Ex.P/5A to the effect that the accused persons were preparing to cremate the deceased without informing the police but the other villagers prevented them from doing so. However, no a single person from village Devalia has stated that any preparation for funeral were made before the post-mortem. PW/5 Guman Singh, PW/10 Man Singh, PW/12 Fateh Singh and PW/18 Lalit Singh have not been able to corroborate the bald allegations made in the FIR in this respect. As pointed out earlier not a single person of Devalia has supported the story of pro - longed torture of Smt. Chetan Kanwar. PW/1 Dev Shankar, PW/2 Ramesh Chandra, PW/3 Devi Lal, PW/4 Mane and PW/8 Kishore Singh were examined in this respect and none of them could support the prosecution story. From the testimony of PW/5 Guman Singh, it is evident that Smt. Chetan Kanwar was thrown - out of their house by the accused person and she had to remain for about one year at hear parental house in a discarded condition. In these circumstances, it was natural that the neighbours and other residents of Village Bharori would know about the same. In these circumstances, it was natural that the neighbours and other residents of Village Bharori would know about the same. However, not even a single independent person of Village Bharori has been examined to corroborate the prosecution story. PW/10 Man Singh has made a specific allegation to the effect that the demand of dowry, by the accused persons was made in the presence of atleast 50 persons. Vijay Ram, Girdhari, Harlal, Chandra Singh, Subhkaran, Bhera, Nana and Rama, according to the witnesses, were the persons in whose presence the said demand was made. However, not even a single person out of alleged 50 has been examined to corroborate the prosecution story. From the evidence which has come on record the allegations are largely to the effect that the demands were sent through PW/7 Prahalad Singh. However, as pointed out earlier PW/7 Prahalad Singh has not supported the said story. 13. There is a long delay in lodging the FIR Ex.P/5A by PW/5 Gurnan Singh. From the testimony of PW/14 Prithvi Singh, it comes out that initially the matter was being enquired under Section 174 of the Cr.PC. and after the post - mortem, the dead body was handedover to Guman Singh and Himmat Singh, who were the brothers of the deceased. post-mortem as pointed out earlier, was conducted on 17.8./1987. Inspite of the alleged long history of the torture it is surprising that no FIR was lodged on 17.8.1987 when the police was present on the spot. Next day also no FIR was lodged. The FIR Ex.P/5A was lodged on the third day on 19.8.1987 at 10.30 a.m. There Is absolutely no explanation for this long delay. It is argued by the learned counsel for the appellant that even Ex.P/5A is antedated because the formal FIR Ex.P/6 did not reach the concerned Magistrate on 19.8.1987. Instead it bears a note to the effect that Ex.P/6 was received by the Magistrate on 20.8.1987 at 3.00 p.m. The argument of the defence is to the effect that initially on 17.8.1987 and 18.8.1987 no grievance was made to the police and Ex.P/5A was actually lodged on 20.8.1987, which the police registered in back date on 19.8.1987. As pointed out earlier as per the allegations of the FIR Ex.P/5A two accused person viz. Himmat Singh and Madan Singh were responsible for harassing Smt. Chetan Kanwar. As pointed out earlier as per the allegations of the FIR Ex.P/5A two accused person viz. Himmat Singh and Madan Singh were responsible for harassing Smt. Chetan Kanwar. However, the prosecution side did not remain satisfied with these allegations and improved the case by subsequently stating that Smt. Phool Kanwar was an equal partner in the crime. This supports the defence argument that the complainant side was not motivated with objectively but with a desire to harm, as many people as possible. 14. To prove an offence under Section 304 - B of the I.PC. the prosecution has to establish the following three things : (i) Death occurred within seven years of marriage. (ii) Death was unnatural and (iii) Soon before the death the victim was subjected to cruelty or harassment by the accused in connection any demand for dowry. 15. In the instant case it can be said that first two conditions have been met but I find that there is no evidence to say that there is any evidence to fulfil the third condition. The learned trial Court has completely ignored the third condition. In para 73 of the judgment the learned trial Court has made an observation to the effect that there was no satisfactory, oral, evidence to establish that soon before the death Smt. Chetan Kanwar was subjected to any cruelty or harassment by the accused persons. In this connection the learned trial Court has disbelieved the testimony of PW/11 Amar Singh. However, in para 75 of the Judgment the learned trial Court makes a mention that from the "Panchnama" Ex.P/1 and the post-mortem report Ex.P/9 it stands proved that Smt. Chetan Kanwar received burn injuries and there was evidence to the effect that she was branded with some hot metal object and, thus, the third condition stood fulfilled. 16. 1 find that it is very difficult to agree with the conclusion drawn by the learned trial Court, it is nobody's case that on 17.8.1987 or soon before it Smt. Chetan Kanwar received any burn injuries or was branded by hot metal object. From the "Panchnama" Ex.P/1 it is more than clear that the evidence of branding with hot metal object was rather old and there was no evidence of recent burn injury. PW/9 Dr. From the "Panchnama" Ex.P/1 it is more than clear that the evidence of branding with hot metal object was rather old and there was no evidence of recent burn injury. PW/9 Dr. Lal Chand also does not say that the injury in question was of recent origin, No witness, including Guman Singh, Man Singh, Fateh Singh and Lalit Singh has made an allegation that Chetan Kanwar ever received burn injuries at the hands of the accused persons. PW/1 Dev Shankar and other witnesses have stated to the effect that Smt. Chetan Kanwar was afflicted by a "TAAN" ailment and to cure it there is a practice in the villages to brand by hot metal object such a person. PW/1 Dev Shankar has stated that his own son Praveen who suffered from the same ailment had to be branded in the same manner. According to the witness similar treatment was given to his daughter also. In this way the conclusion of the learned trial Court to the effect that she was branded soon before her death is ill founded. 17. The learned trial Court has given benefit of doubt to the accused persons Madan Singh and his wife Smt. Phool Kanwar. However, This benefit has not been accorded to the appellant Himmat Singh, mainly on the basis of the letters Ex.P/11, Ex.P/12 and Ex.P/13 which according to the learned court were authored by him. 18. I find that it is difficult to agree with the learned trial court in this respect. The marriage was solemnised on 24.4.1984. The letter Ex.P/13 is dated 24.4.1984. The letter Ex.P/13 is dated 24.4.1984, Ex.P/12 is dated 17.4.1984 and Ex.P/11 is dated 10.10.1984. This would go to show, that looking to the fact that the death occurred on 17.8.1987 none of the letters could become a basis to establish the guilt of the appellant under Section 304 - B of the I.PC. Moreover, there is no evidence to prove that the letters in question were necessarily written by the appellant Himmat Singh. The learned Public Prosecutor has tried to argue that the FSL report Ex.P/16 makes it clear that Himmat Singh was the author of the three letters. 19. I find it difficult to agree with the learned Public Prosecutor on this account. The learned Public Prosecutor has tried to argue that the FSL report Ex.P/16 makes it clear that Himmat Singh was the author of the three letters. 19. I find it difficult to agree with the learned Public Prosecutor on this account. The prosecution case is to the effect that the Munsif Magistrate, Banswara was requested and the specimen hand - writing of Himmat Singh was obtained in the presence of Munsif Magistrate, Banswara on 23.9.1987. According to PW/15 Abhay Singh, S.H.O. the specimen hand - writing as well as the questioned writings were sent by him to the FSL, Jaipur and the report Ex.P/16 was subsequently received. However, it is not in dispute that the concerned Magistrate in whose presence the appellant Himmat Singh allegedly made the specimen writing has not been examined before the trial court and strangely enough his name does not find place in the Calendar of witnesses. In this way, there is no evidence to prove that any specimen writing was obtained actually. The FSL Report Ex.P/16 in these circumstances does not help the prosecution in any way. Moreover, Ex.P/16 does not say that the writing in question necessarily belongs to the appellant Himmat Singh. According to the report Ex.P/16 there were certain similarities "however in the absence of admitted and suitable and sufficient specimen writings the definite conclusion could not be possible." It is further recorded in the report that "in the absence of admitted writings and on the basis of specimen supplied for comparisons it has not been possible to express any opinion regarding authorship of the disputed writings marked as Q - 11 and Q - 20 to Q - 22." Further, it has been observed that no opinion could be given regarding the age of the ink of the disputed items nor the date of postal seal was ascertainable. 1 In this way no help could be taken by the prosecution on the basis of the report Ex.P/16 produced in the Court. 1 In this way no help could be taken by the prosecution on the basis of the report Ex.P/16 produced in the Court. PW/15 Abhay Singh has not identified the specimen writings allegedly got recorded by the Munsif Magistrate, Banswara.There is, thus, no evidence to establish that soon before her death Smt. Chetan 5 Kanwar was subjected to cruelty or harassment by her husband, in connection with any demand for dowry, and in view of what has been said above the appellant Himmat Singh cannot be found guilty under Section 304 - B of the I.PC.Consequently, the appeal is allowed and the appellant Himmat Singh is acquitted of the charge.Appeal allowed. *******