A. K. SHRIVASTAVA, J. ( 1 ) FEELING aggrieved by the judgment of conviction and order of sentence dated 5. 2. 1989 convicting the appellant under Sections 304-B and 302/201 IPC and sentencing him to suffer rigorous imprisonment for seven years and one year respectively and fine of Rs. 500/- in default, further rigorous imprisonment of one month, appellant has knocked the doors of this court by preferring this appeal under Section 374 (2) of the Code of Criminal Procedure, 1973. ( 2 ) APPELLANT No. 1 Rambaran who was the husband of Moharshree (hereinafter referred to as the "deceased")breathed his last during the pendency of this appeal as result of which his name has been deleted from the array of appeal since the appeal was abated against him. ( 3 ) IN brief, the case of the prosecution is that complainant Gangaram S/o ramkishan is a resident of Gopalpura, morena. His daughter, the deceased, got married two years earlier to the date of incident to deceased appellant Rambaran, who is son of the appellant Sarman. The incident took place on 9-5-1993. Gangaram, who is the father of the deceased on enquiry found that on account of some illness the deceased died. However, the appellant nor his family members did inform him in regard to the illness of the deceased and about her death. According to complainant deceased died not in normal circumstances. Complainant gangaram lodged a report on 11-5-1993 in the concerning police station. ( 4 ) ON lodging of the report, criminal law was triggered off and set in motion. Investigating Agency arrived at the spot recorded the statements of the witnesses, arrested the accused persons and prima facie found that the appellant and deceased co- accused Rambaran committed the offence under Section 304-B IPC. Since dead body of the deceased was cremated, therefore, the case was also registered under Sections 302/201, IPC apart from S. 304-B IPC. ( 5 ) A charge sheet was submitted in the competent court, which on its turn (sic matter ). ( 6 ) LEARNED trial Court, on scrutiny of the charge sheet, framed charges against the accused persons punishable under Sections 304 -B and 201 read with s. 302 IPC. Needless to emphasis that both the accused persons abjured their guilt. Their defence is of maladroit implication. ( 6 ) LEARNED trial Court, on scrutiny of the charge sheet, framed charges against the accused persons punishable under Sections 304 -B and 201 read with s. 302 IPC. Needless to emphasis that both the accused persons abjured their guilt. Their defence is of maladroit implication. Defence of the accused is that the deceased was pregnant and on account of miscarriage she passed away. ( 7 ) IN order to prove the charges, prosecution has examined as many as seven witnesses and placed Exh. P/1 to p/5 on record. In their defence, the accused persons examined six witnesses. ( 8 ) THE trial Court after examining to record found that both the charges are proved against the accused persons and eventually convicted them and "passed sentences which I have mentioned herein above. Hence this appeal has been preferred by the accused persons. ( 9 ) I have already mentioned herein above that during the pendency of this appeal, appellant Rambaran (husband of the deceased ) died as a result of which, the appeal stood abated against him and his name has been deleted from the array of the appellants. Thus, this court is required to see whether any offence has been committed by the appellant and whether he has been rightly convicted by the trial Court. ( 10 ) IT has submitted by Sushri nutan Saxena, learned counsel for the appellant that if the prosecution evidence is considered in proper perspective, it cannot be said that any offence has been committed by the appellant. According to her, prosecution has utterly failed to prove its case beyond doubt. It has been further canvassed by her that defence of the accused is that the deceased died on account of miscarriage as she was pregnant and, in order to support their defence, several defence witnesses were examined by the accused persons including midwife (Dai) DW 2 Ramwati who treated the deceased on account of abortion. According to the learned counsel, the credibility of the defence witnesses stands on the same footing on which prosecution witnesses stand and there is no distinction between the two and, therefore, trial Court ought to have given credence to the defence witnesses in the same manner as were being given to the prosecution witnesses. According to the learned counsel, the credibility of the defence witnesses stands on the same footing on which prosecution witnesses stand and there is no distinction between the two and, therefore, trial Court ought to have given credence to the defence witnesses in the same manner as were being given to the prosecution witnesses. In support of her contention, learned counsel has placed reliance on two decisions of the Apex court in the cases of Dudh Nath Pandey v. State of U. P. and State of Haryanav. Ramsingh. ( 11 ) PER contra, Shri M. P. S Bhadoriya, learned Public Prosecutor argued in support of the impugned judgment. ( 12 ) AFTER having heard learned counsel for the parties. I am of the view that this appeal deserves to be allowed. ( 13 ) THE basic document on the basis of which the criminal law was set in motion is Ex. P/4c which is a Marg report lodged by complainant Gangaram. This report is dated 11-5-1993. According to this report, deceased got married to deceased accused Rambaran two years earlier to 1-5-1993. Twenty days earlier to 11-5-1993 the son-in-law of the complainant i. e. , deceased accused rambaran, appellant Sarman and two daughters-in-law of the appellant Sarman arrived and took away the deceased from his house. On Monday, his relative asharam came to him and informed him that the deceased has passed away. Thereafter. Asharam and Sumera went to the house of the appellant where they were informed that on account of the illness she passed away on 9-5-1993 and she has been cremated. Since the appellant and his family members did not inform the complainant in regard to illness of the deceased and also did not inform about the death and she was cremated, he is in suspicion that under unnatural circumstances, the deceased has died. On going through this report, nowhere it is gathered that there was any demand of dowry either by the appellant or his family members. There is no whisper in this report that earlier to the incident deceased was ever ill-treated by the appellant or his family members. This report is dated 11-5-1993. Thereafter, when the statement of the complainant was recorded under Section 161 Cr. P. C. , on 17-5-1993 the story of ill-treatment was added. In his police statement Ex. There is no whisper in this report that earlier to the incident deceased was ever ill-treated by the appellant or his family members. This report is dated 11-5-1993. Thereafter, when the statement of the complainant was recorded under Section 161 Cr. P. C. , on 17-5-1993 the story of ill-treatment was added. In his police statement Ex. D/4 he has stated that when for second time the deceased arrived at his house, she told him that father-in-law and the husband have ill-treat her and they also causes marpeet to her. She also showed her fingers and stated that they were burnt and now she will go to the house of the appellant. Thereafter, when the appellant arrived at the house of the complainant and asked the complainant to send his daughter-in-law, he did not agree because his daughter was being ill-treated. The appellant and his two daughters-in-law pacified him that his daughter will not be ill-treated in future. In his police statement Ex. D/4 in the portion marked "a" to "a" it has been stated by him that when the deceased died it was told by the appellant that abortion of six months took place on account of which the deceased passed away. If the Marg report Ex,p/4c of complainant dated 11-5-1993 and his police statement Ex. D/4 dated 17-5-1993 are kept in juxtaposition and are read conjointly, one can easily say that the story which has been set forth in the report Ex. P/4c has been somersaulted and altogether new facts have been added in the police station Ex. D/4 about which there is no whisper in the report Ex. P/4c. Thus, I am of the view that there is material omission. The omissions are confronted to the complainant in para 14 of his testimony. Thus, the story of causing marpeet and ill-treatment has been planted and has been added in order to give colour, cannot be ruled out. Even if police statement Ex. D/4 of complainant is taken to be the true in its entirety, there is nothing in his statement that any demand of dowry was made either by the appellant or by the deceased co-accused. Though in the evidence of the complainant it has come that the deceased had told him that family members of the appellant insisted her to bring dowry, but this fact has neither been stated by him in his police statement Ex. Though in the evidence of the complainant it has come that the deceased had told him that family members of the appellant insisted her to bring dowry, but this fact has neither been stated by him in his police statement Ex. D/4 nor in his report Ex. P/4c and why this material fact has been omitted, there is no explanation. ( 14 ) IN order to prove a case under the clutches of Section 304b IPC, it is incumbent upon the prosecution to prove the following: (i) woman has died on account of burn or bodily injury, (ii) other than normal circumstances, (iii) within seven years of her marriage, (iv) soon before her death, she was subjected to cruelty or harassment, (v) by her husband or any relation of her husband, and (vi) for or in connection with any demand for dowry. On careful reading of Section 304b ipc. one can easily say that the essential ingredient should be existed at one point of time, then only, the offence can be said to have been committed under this Section. Needless to emphasis that it should be proved that soon before her death, the deceased was subjected to cruelty or harassment in connection with demand of dowry. ( 15 ) IN para 15 of his statement the complainant has admitted the information given to him about the death of the deceased on 9-5-1993 and thereafter he went to lodge the report on 11-5-1993. He has also admitted that appellant Sarman told him that the deceased was being taken away for treatment, but on the way at Dimni, she died. ( 16 ) SECTION 113-B of the Evidence act speaks about the presumption as to dowry death and according to this provision where a person has committed the death of a woman and it is established that soon before her death such woman was subjected by such person to cruelty or harassment for or in connection with demand for dowry, the court shall presume that such person had caused the dowry death. Explanation has also been added to this Section according to which, 'dowry' shall have the same meaning as envisaged under Section 304 B of IPC. Under Section 304b IPC the word "dowry" shall have the same meaning as provided in Section 2 of the Dowry Prohibition Act, 1961. Explanation has also been added to this Section according to which, 'dowry' shall have the same meaning as envisaged under Section 304 B of IPC. Under Section 304b IPC the word "dowry" shall have the same meaning as provided in Section 2 of the Dowry Prohibition Act, 1961. Word "dowry" has been defined in section 2 of the Dowry Prohibition Act, 1961 which reads as under: "2. Definition of dowry'.-In this Act, "dowry" means any property or valuable security given either directly or indirectly- (a) by one party to a marriage to the other party to the marriage: or (b) by the parent 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 but does not include dower or mahr in the case of persons to whom the Muslim personal Law (Shariat) applies. Thus, it is imperative for invoking the legal presumption as envisaged under Section 113-B of the Evidence Act to prove that soon before her death, the deceased was subjected to such cruelty or harassment. ( 17 ) IN the present case, it is doubtful that soon before her death the deceased was subjected to cruelty or harassment for or any connection with demand of dowry because the report Ex. P/4c is totally silent in that regard and thus, it is difficult to hold that the death of the deceased was dowry death. ( 18 ) AT this juncture, I may profitably rely the decision in the case of shamlal v. State of Haryana, and it would be condign to quote paragraphs 12 and 13 of this decision which read thus: "12. In the absence of any such evidence it is not permissible to take recourse to the legal presumption envisaged in Section 113-B of the Evidence Act. That rule of evidence is prescribed in law to obviate the prosecution of the difficulty to further prove that the offence was perpetrated by the husband, as then it would be the burden of the accused to rebut the presumption. 13. The corollary of the aforesaid finding is that appellant cannot be convicted of the offence under Section 304 BIPC. That rule of evidence is prescribed in law to obviate the prosecution of the difficulty to further prove that the offence was perpetrated by the husband, as then it would be the burden of the accused to rebut the presumption. 13. The corollary of the aforesaid finding is that appellant cannot be convicted of the offence under Section 304 BIPC. But this would not save him from the offence under Section 498-A of the I. P. C. , for which there is overwhelming evidence, particularly of PW 3 , bhagwan Dass, who heard from his daughter, which evidence is admissible under Section 32 of the Evidence Act, besides his direct dialogue with the appellant and his father. As the trial Court and the High Court found his evidence reliable, we hold that prosecution has succeeded in proving the offence under Section 498-A of I. P. C. ( 19 ) MOTHER of the deceased Rambeti was examined as PW 3. Though in her statement she stated that her daughter was ill-treated and was beaten by the appellant and husband of the deceased, but there is no whisper in her police statement Ex. D/1 that either the appellant or any member of his family made any demand of dowry to the complainant or to any other member. What she has stated in her police statement is that they voluntarily gave things in the marriage of their daughter. On going through the statement of this witness, it is gathered that the appellant and his family members told her that on account of miscarriage, the deceased breathed her last. If we test the statement of the mother of the deceased on the anvil of Section 304 b IPC, again there is nothing in her police statement that any demand for dowry was made either by the appellant or any member of his family. Since no demand of dowry was ever made by the appellant or deceased co-accused and this has not been stated by Rambeti, the mother of the deceased in her police statement Ex. D/1 as well as when she appeared in the court as PW3, therefore, it is difficult to hold that the appellant made any demand of dowry. ( 20 ) ANOTHER witness is PW 4 Tula-ram who is the brother of the deceased. D/1 as well as when she appeared in the court as PW3, therefore, it is difficult to hold that the appellant made any demand of dowry. ( 20 ) ANOTHER witness is PW 4 Tula-ram who is the brother of the deceased. He has stated that after the death of the deceased when he arrived at the house of the appellant, accused persons told him that on account of abortion, the deceased passed away. This witness has also stated that the accused persons made demand of cooler, television and one ring to the deceased and by not satisfying the demand, she was subjected to cruelty. But the demand of cooler, television and ring has not at all been stated by the father of the deceased. Apart from this, all these facts have not been mentioned in the police statement Ex. D/2 of this witness, and therefore, the story of demand of cooler, television and ring is planted later on, cannot be ruled out. ( 21 ) PROSECUTION has also examined pw 5 Ramjilal, the other brother of the deceased. According to this witness, one asharam told him that "your sister" (the deceased) has died and this was informed to him on the next day of the death of the deceased. At this juncture, I may profitably discuss the evidence of Natthilal (DW5) who has stated that after the death of the deceased on account of miscarriage, the appellant Sarman sent him to inform Gangaram (father of the deceased ). This witness thereafter went at the house of the complainant and informed about the death of the deceased to complainant Gangaram (PW2) and asaram. Ramjilal (PW5) that Asharam told him that his sister has died. Thus, it cannot be said that Gangaram was not informed about the death of the deceased. ( 22 ) THE defence of the accused is that the deceased was pregnant and on account of miscarriage she passed away. In that regard, defence has examined achheram (DW1), Ramwati (DW2), dwarikaprasad (DW3), Gaurishankar (DW4) and Natthilal (DW5 ). All these witnesses, in single voice have stated that the deceased died on account of abortion. These witnesses are the residents of the same village and are neighbours of the appellant. In that regard, defence has examined achheram (DW1), Ramwati (DW2), dwarikaprasad (DW3), Gaurishankar (DW4) and Natthilal (DW5 ). All these witnesses, in single voice have stated that the deceased died on account of abortion. These witnesses are the residents of the same village and are neighbours of the appellant. DW 2 Ramwati is a midwife who treated the deceased on account of abortion and has stated that after she treated the deceased, some complications took place on account of which the deceased died. Achcheram (DW1) says that Natthilal was sent to inform about the death of the deceased to the complainant Gangaram. This witness has been corroborated by the statement of natthilal (DW 5) who has stated that he did go to the house of Gangaram and informed Gangaram and Asharam about the death of the deceased. ( 23 ) I may not hesitate to mention at the cost of repetition that PW5 Ramjilal has stated that Asharam told him that the deceased has died and Natthilal (DW 5) says that after the death of the deceased he went to inform Gangaram and asharam about the death of the deceased. Thus death of the deceased was informed by the appellant to her parents is duly proved by the statement of defence witness as also from the statement of prosecution witness Ramjilal (PW 5 ). Defence has also took pains to examine DW 2 ramwati who treated the deceased on account of abortion. The view of this court is that credibility to the defence witnesses should be given in the same manner as being given to the prosecution witnesses and their testimony cannot be ignored if it is clear, cogent and trustworthy. In that regard, I may profitably rely in the decisions of Dudh Nath pendey and Ramsingh (Supra ). There is no effective cross examination on the defence witnesses that the deceased died on account of miscarriage. ( 24 ) FOR the reasons stated herein above, the conviction of the appellant cannot be allowed to stand and the same is hereby set aside. Resultantly, this appeal is allowed. Appellant is on bail. His bail bonds are discharged. Appeal allowed. .