Honble GARG, J.–The abovenamed accused appellants have preferred this appeal against the judgment and order dated 22.11.2001 passed by the learned Additional Sessions Judge (Fast Track), Jodhpur in Sessions Case No. 68/2001 by which while acquitting the accused appellants for the offence under section 201 IPC, he convicted the accused appellants for the offence under sections 498A IPC and 304B IPC and sentenced them in the following manner:- Name of accused appellants convicted under section sentence awarded to each accused appellant 1. Raju Ram 2. Chena Ram 498A IPC Three years RI and to pay fine of Rs. 500/- 3. Smt. Neni Devi 4. Jagdish in default of payment of fine, to further undergo 3 months SI. 304B IPC Seven years RI and to pay fine of Rs. 1000/- in default of payment of fine, to further undergo, 6 months SI. The above sentences were ordered to run concurrently. (2). The facts giving rise to this appeal, in short, are as follows:- On 19.6.2000 at about 7.30 PM, PW5 Bhiyaram lodged a written report Ex.P/6 with the Police Station Mathania District Jodhpur before PW13 Bhanwar Singh, SHO of that Police Station stating inter-alia that his daughter Mohini (hereinafter referred to as ``the deceased) was married three months back with Raju Ram (accused appellant No. 1). It was further stated in the report that at the time of marriage, demand of dowry was made on behalf of the accused appellants and the same was fulfilled by PW5 Bhiyaram, but the accused appellants were not satisfied and after the marriage, demand of dowry was being made continuously by the accused appellants, but since his financial condition was not good, PW5 Bhiyaram could not satisfy their demand and because of this fact, they used to torture and harass deceased. It was further stated in the report that on 19.6.2000, Chunaram informed PW5 Bhiyaram that the condition of the deceased, who was at that time in the house of her in-laws, was not good, therefore, PW5 Bhiyaram sent Ishwar Ram (PW2), Sajanram (PW1), Lakharam (PW4), Megharam (PW6), Bannaram, Kesuram, Narainram, Damaram and Jaguram to the house of her in-laws where they found the dead body of the deceased half burnt on the back side of the house and on being asked by these persons how it had happened, the accused appellants told them that mistake had been committed by them and they had killed the deceased. Thereafter, the above persons informed PW5 Bhiyaram about the said incident and then, PW5 Bhiyaram lodged the report Ex.P/6 and in that report, in the police remarks, it was further stated by PW5 Bhiyaram that whenever deceased used to come to his house, she used to tell that in case dowry was not given, she would be killed. On this report Ex.P/6, police chalked out regular FIR Ex.P/29 and started investigation. During investigation, post mortem of the dead body of the deceased was got conducted by the Medical Board at Health Centre, Mathania and the post mortem report is Ex.P/33 and in the opinion of the Medical Board, cause of death could not be ascertained, but they preserved the viscera, which was sent for chemical examination and the chemical examination report is Ex.P/35 and after seeing the chemical examination report Ex.P/35, PW16 Narnayak Bhati, who was one of the members of the Medical Board, opined that deceased possibly died because of taking Organophosphorous Insecticide. The accused appellants Raju Ram, Chenaram, Jagdish and Neni Devi were arrested on 20.6.2000 through arrest memos Ex.P/23, Ex.P/24, Ex.P/25 and Ex.P/28 respectively. After usual investigation, police submitted challan for the offence under sections 498A, 304B and 201 IPC against the accused appellants in the Court of Magistrate and from where the case was committed to the Court of Sessions. The learned Additional Sessions Judge No. 2, Jodhpur on 11.10.2000 framed charges for the offence under sections 498A, 304B and 201 IPC against the accused appellants. The charges were read over and explained to the accused appellants, who pleaded not guilty and claimed trial. In support of its case, the prosecution examined as many as 21 witnesses and got exhibited several documents. The charges were read over and explained to the accused appellants, who pleaded not guilty and claimed trial. In support of its case, the prosecution examined as many as 21 witnesses and got exhibited several documents. Thereafter, statements of the accused appellants under section 313 Cr.P.C. were recorded. In defence, two witnesses were examined. After conclusion of trial, the learned Additional Sessions Judge (Fast Track), Jodhpur through his judgment and order dated 22.11.2001 acquitted the accused appellants of the charge for the offence under section 201 IPC, but convicted them for the offence under sections 498A and 304B IPC and sentenced them in the manner as indicated above holding inter-alia:- 1. That death of the deceased took place under suspicious circumstances and within seven years of marriage with the accused appellant No. 1 Raju Ram. 2. That the case of the prosecution that when some persons went to the house of her in-laws, the accused appellants made extra-judicial confession before them was not accepted by the learned trial Judge. 3. That the case of the prosecution that the accused appellants knowing that an offence had been committed, caused evidence of the commission of the offence to disappear, was not accepted by the learned trial Judge and thus, acquitted them of the charge for the offence under section 201 IPC. 4. That the deceased was not sent to the house of her parents by the accused appellants and this fact amounted to cruelty on the part of the accused appellants. 5. That before the death of the deceased, a demand of Rs. 20,000/- alongwith some gold etc. was made by the accused appellants. 6. That the learned trial Judge has also drawn presumption of Section 113-B of the Indian Evidence Act against accused appellants. 7. That the learned trial Judge came to the conclusion that the deceased was given cruel treatment and tortured by the accused appellants for and in connection with demand for dowry and thus, the prosecution has proved its case beyond all reasonable doubts against the accused appellants for the offence under sections 498A and 304B IPC. Aggrieved from the said judgment and order dated 22.11.2001 passed by the learned Additional Sessions Judge (Fast Track), Jodhpur, this appeal has been filed by the accused appellants. (3). Aggrieved from the said judgment and order dated 22.11.2001 passed by the learned Additional Sessions Judge (Fast Track), Jodhpur, this appeal has been filed by the accused appellants. (3). In this appeal, it has been submitted by the learned counsel for the accused appellants that in this case, there is categorical evidence of the prosecution witnesses that before death of the deceased, she remained in the house of the accused appellants continuously for three months and during that period, her parents did not meet her and therefore, there is no evidence in this case that soon before her death, demand of dowry, as found proved by the learned trial Judge, was ever made by the accused appellants. Hence, the basic ingredient that deceased was subjected to cruelty for and in connection with the demand of dowry has not been established and proved and in view of this, the findings of the learned trial Judge convicting the accused appellants for the offence under section 304B IPC cannot be sustained and liable to be set aside. (4). On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Additional Sessions Judge (Fast Track), Jodhpur. (5). I have heard the learned counsel for the accused appellants and the learned Public Prosecutor and perused the record of the case. (6). In Shanti vs. State of Haryana (1), the Honble Supreme Court had an occasion to explain the ingredients of Section 304B IPC. His Lordship K. Jayachandra Reddy (as he then was) said ``A careful analysis of Section 304B 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 of this case. (8). The post mortem report of the deceased is Ex.P/33 and the same has been proved by PW16 Dr. Narnayak Bhati, who is one of the members of the Medical Board. (7). In this respect, I would like to first discuss the medical evidence of this case. (8). The post mortem report of the deceased is Ex.P/33 and the same has been proved by PW16 Dr. Narnayak Bhati, who is one of the members of the Medical Board. In the post mortem report Ex.P/33, the Medical Board opined that cause of death could not be ascertained, but they preserved the viscera, which was sent for chemical examination and the chemical examination report is Ex.P/35 and after seeing the chemical examination report Ex.P/35, PW16 Narnayak Bhati opined that deceased possibly died because of taking Organophosphorous Insecticide. (9). Thus, it can be said that the death of the deceased was not natural one and her death was unnatural and the learned trial Judge was right in holding that the death of the deceased was unnatural one, which took place in abnormal circumstances. (10). There is also no dispute on the point that death of the deceased has taken place within seven years of her marriage with the accused appellant No. 1 Raju Ram. (11). The next point which is to be considered is whether deceased has been subjected to cruelty or harassment by the accused appellants and further to see whether such cruelty or harassment was for and in connection with demand of dowry or not. (12). 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. (13). 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. In this respect, the decision of the Honble Supreme Court in Guru Bachan Singh vs. Satpal Singh (2), may be seen. (14). Motive for a murder may or may not be. But in dowry deaths, it is inherent. And hence, what is required of the court to examine is as to who translated it into action as motive for it is not individual, but of family. (See Ashok Kumar vs. State of Rajasthan (4). (15). Now the evidence of material witnesses has to be seen and discussed. (16). But in dowry deaths, it is inherent. And hence, what is required of the court to examine is as to who translated it into action as motive for it is not individual, but of family. (See Ashok Kumar vs. State of Rajasthan (4). (15). Now the evidence of material witnesses has to be seen and discussed. (16). PW1 Sajanram is a witness, who is relative of PW5 Bhiyaram, father of the deceased. This witness has admitted that after marriage, the deceased had never met him and the deceased had never told him that she was being subjected to cruelty because of demand of dowry. He has further admitted that the fact that the accused appellant demanded dowry was told to him by PW2 Ishwar Ram. (17). Thus, from the statement of PW1 Sajanram, it appears that no dowry demand was ever made by the accused appellants in his presence. (18). PW2 Ishwar Ram is also a relative of PW5 Bhiyaram, father of the deceased. This witness has admitted the following facts:- (i) That after marriage of the deceased and till her death, he never went to the house of her in-laws. (ii) That he was told by PW5 Bhiyaram and PW7 Chenaram that the accused appellant No. 3 Neni Devi, mother-in-law of deceased did not send deceased to her parents house. (iii) That his statement was taken by the police after 20 days of the incident. (iv) That the fact that deceased was being beaten and tortured by the accused appellants was told to him by PW5 Bhiyaram and that fact for the first time was told by him to police after 20 days of the incident. (v) That in his police statement Ex.D/1, the fact that Rs. 20,000/- and some other demand was made, is not found though he told to the police. (vi) That at the time of marriage of deceased, what was given by PW5 Bhiyaram to her in-laws, the same was given by him happily and at the time of marriage, no demand of dowry was ever made by the accused appellants. (vii) That before her death, deceased was living continuously for three months in the house of her in-laws. (19). (vii) That before her death, deceased was living continuously for three months in the house of her in-laws. (19). Thus, from the statement of PW2 Ishwar Ram, it is very much clear that the demand of dowry was not made by the accused appellants in his presence and at the time of marriage of deceased, what was given by PW5 Bhiyaram, the same was given by him happily and no demand of dowry was made by the accused appellants at that time and further, in his police statement Ex.D/1, the fact of demand of Rs. 20,000/- is not found and on that point, he has been contradicted. (20). PW4 Lakharam, who is also relative of PW5 Bhiyaram, has been declared hostile. He has stated that after marriage and before death of deceased, he never went to the house of her in- laws and after marriage, deceased came to the house of her parents where she did not tell any thing in his presence. (21). PW5 Bhiyaram is the father of the deceased, who lodged report Ex.P/6. He has admitted the following facts:- (i) That at the time of marriage of deceased, whatever goods were given by him to the accused appellants, the same were given by him happily and at that time, no demand of dowry was made by the accused appellants. (ii) That after the marriage, whenever deceased came to his house, she used to tell that her mother-in-law used to make quarrel with her. (iii) That deceased was not sent to his house continuously for three months by her mother-in-law and from this point of view, deceased was worried. (iv) That the fact that the accused appellants demanded Rs. 20,000/- and some ornaments etc. is not written in the report Ex.P/6. (v) That he had never seen the accused appellants beating deceased and it is Aduram, who told him that condition of the deceased was not good. (22). A perusal of the statement of PW5 Bhiyaram reveals that so far as the demand of Rs. 20,000/- and some ornaments etc. is not written in the report Ex.P/6. (v) That he had never seen the accused appellants beating deceased and it is Aduram, who told him that condition of the deceased was not good. (22). A perusal of the statement of PW5 Bhiyaram reveals that so far as the demand of Rs. 20,000/- on which reliance was placed by the learned trial Judge, is concerned, the same is not found in the report Ex.P/6 and this is a material omission in the report Ex.P/6 and apart from this, stress, which has been given by him in his statement recorded in Court is that deceased was very much worried because she was not sent to his house by her mother-in- law and thus, from reading his whole statement, it does not appear that the deceased was worried because there was demand of dowry on behalf of the accused appellants. (23). Similarly, PW6 Megharam has further admitted in his statement recorded in Court that at the time of marriage of deceased, what was given by PW5 Bhiyaram to the accused appellants, the same was given by him happily and there was no demand of dowry by the accused appellants at that time. He has further admitted that since deceased was not sent to her parents house by her in-laws, therefore, she was very much worried. (24). PW7 Chenaram is the brother of the deceased and he has further admitted that at the time of marriage of deceased, articles were given by his father PW5 Bhiyaram to the accused appellants and the same were given happily and at that time, there was no demand of dowry from the side of the accused appellants and when deceased came after marriage, she did not say anything about the demand of dowry by the accused appellants. (25). PW8 Ganwari is the mother of the deceased and her statement is like PW7 Chenaram. (26). Thus, after going through the various statements of prosecution witnesses, it appears that deceased was very much worried because she was not sent to her parents house by her mother-in-law and this aspect was treated as cruelty towards deceased by the learned trial Judge and from this point of view, he has rightly convicted the accused appellants for the offence under section 498A IPC. In doing so, the learned trial Judge has not committed any illegality and thus, the findings of the learned trial Judge convicting the accused appellants for the offence under section 498A IPC are liable to be confirmed one. (27). However, from the above statements of prosecution witnesses, the fact that after the marriage and before the death of deceased, demand of Rs. 20,000/- and some other gold etc. was over made by the accused appellants has not been established and proved. It is the duty of the prosecution to prove with some positive evidence that soon before her death, the victim was subjected to cruelty or harassment and such cruelty and harassment was for and in connection with demand of dowry. This aspect is missing in this case. The prosecution has failed to prove that demand of Rs. 20,000/- and other ornaments was made by the accused appellants and soon before her death, the deceased was subjected to cruelty and harassment and such cruelty and harassment was for and in connection with demand of dowry. The cruelty only relates to that deceased was not sent to her parents house by the accused appellants. (28). Furthermore, in the present case, PW5 Bhiyaram never submitted any report to the police or any other authority complaining that the accused appellants used to harass and torture deceased for and in connection with demand of dowry and this aspect was also missing in his report Ex.P/6 and this fact was for the first time introduced in the statement recorded under section 161 Cr.P.C. and further, in this case, no panchayat was ever held for the alleged conduct of the accused appellants and there is positive evidence that the dispute was with regard to non-sending of deceased to her parents house by her mother-in-law and therefore, in these circumstances, the fact that accused appellants demanded Rs. 20,000/- and some other ornaments cannot be said to have been proved and established beyond all reasonable doubt on the point that deceased was subjected to cruelty by accused appellants soon before her death and such cruelty was for and in connection with the demand of dowry. (29). 20,000/- and some other ornaments cannot be said to have been proved and established beyond all reasonable doubt on the point that deceased was subjected to cruelty by accused appellants soon before her death and such cruelty was for and in connection with the demand of dowry. (29). Thus, the fourth ingredient of Section 304B IPC, as quoted above, has not been proved and established by the prosecution beyond all reasonable doubt and in view of this, the findings of the learned trial Judge convicting the accused appellants for the offence under section 304B IPC cannot be sustained and liable to be set side. (30). No doubt in the present case, a tragic death of young lady has taken place, but simply because a young lady had brought her life to a tragic end by consuming organophosphorous insecticide, it cannot be said that she had embraced death on account of any demand of dowry by the accused appellants. (31). So far as drawing of presumption under Section 113-B of the Evidence Act by the learned trial Judge is concerned, the prosecution has failed to prove that a demand of Rs. 20,000/- and other ornaments was made by the accused appellants and also failed to prove that the deceased was subjected to cruelty and harassment by the accused appellants for and in connection with the demand of dowry and there is nothing on record to show that deceased was treated with cruelty or harassed with the demand for dowry and in absence of any such evidence, it is not permissible to take recourse to the legal presumption envisaged in Section 113B of the Evidence Act and therefore, in these circumstances, the learned trial Judge was not right in drawing presumption under section 113B of the Evidence Act. (32). (32). Thus, looking to the entire evidence on record, I am of the view that the learned trial Judge has committed serious and manifest error in concluding that the accused appellants were guilty of the offence under section 304B IPC when the crucial and necessary ingredient that the deceased was subjected to cruelty or harassment by the accused appellants soon before her death for or in connection with demand of dowry, was not established and proved by cogent and convincing evidence and therefore, in these circumstances, the findings of the learned trial Judge convicting the accused appellants for the offence under section 304B IPC cannot be sustained and liable to be set aside. (33). For the reasons stated above, the findings of the learned Additional Sessions Judge (Fast Track) Jodhpur convicting the accused appellants for the offence under section 498A IPC are liable to be confirmed, but the findings of the learned Addl. Sessions Judge (Fast Track) convicting the accused appellants for the offence under section 304B IPC are liable to be set aside and to that extent, the impugned judgment and order of the learned Addl. Sessions Judge (Fast Track), Jodhpur dated 22.11.2001 are to be modified and this appeal deserves to be allowed partly. (34). Accordingly, this appeal filed by the accused appellants is allowed partly in the following manner:- 1. That the conviction recorded by the learned Addl. Sessions Judge (Fast Track), Jodhpur against the accused appellants for the offence under section 498A IPC through judgment and order dated 22.11.2001 is maintained and thus, appeal of the accused appellants against conviction for the offence under section 498A IPC is dismissed after confirming the judgment and order dated 22.11.2001 convicting and sentencing the accused appellants for the offence under section 498A IPC. 2. That however, the conviction recorded by the learned Addl. Sessions Judge (Fast Track), Jodhpur against the accused appellants for the offence under section 304B IPC through judgment and order dated 22.11.2001 is set aside and thus, appeal of the accused appellants against conviction for the offence under section 304B IPC is allowed and the judgment and order dated 22.11.2001 convicting and sentencing the accused appellants for the offence under section 304B IPC are set aside and the accused appellants are acquitted of the charge for the offence under section 304B IPC. 3. 3. That the accused appellants are in jail and since they have already served out the sentence of three years awarded to them by the learned Addl. Sessions Judge (Fast Track) Jodhpur through judgment and order dated 22.11.2001 for the offence under section 498A IPC, therefore, they be released forthwith, if not required in any other case. __