S. K. AGARWAL, J. ( 1 ) THE appeal and revision are directed against Judgment dated 12. 2. 2003 holding the- appellant guilty under section 4 of Dowry prohibition Act, 1961 (for short, The Act") and order dated 28. 2. 2003 sentencing him to undergo rigorous Imprisonment for six months and to pay fine of Rs. 5,000/-, in default, to undergo simple imprisonment for two months, in the case FIR No. 33/1991, p. S. Nawab Ganj, Kanpur, U. P. The case was registered under sections 304b/498a IPC and section 4 of the Act. The appellant was acquitted of other charges, including, the alternate charge under sections 302/34 IPC. It may be noted here that the Supreme court on the complainant s petition transferred the case from the State of U. P. for trial in Delhi. By the impugned judgment, other five accused persons, (except appellant) were acquitted. ( 2 ) FACTS in brief are as follows: On 14. 2. 1991, Jai Nandan Lai (brother of the deceased ). r/o. Gridih, Bihar (hereafter, "the. complainant") lodged a written report with the police at Kanpur, stating that on 7. 2. 1988 mahendra Modi (appellant) was married to his sister - Anju (deceased), and sufficient dowry was given as per their capacity, at the time of marriage. On 8. 2. 1988 at the time of departure of "barat" appellant told them that at least one maruti car should have been given in the dowry. In reply, complainant s family told him that they were passing through financial hardship and they would try to do the needful sometimes in future. On 9. 2. 1988 complainant also got married; appellant attended the same and repeated demand, saying that he was cheated and if he had married in some other family, he could get even two cars. On hearing this complainant s family was hurt, but they could not do anything and hoped that their daughter anju, by her love and affection would win appellant s heart and he would give up the demand The days passed by; Anju informed them, that although her husband was holding a good post, he is greedy and eager to extract money and that he taunts and tortures her. In the meantime, they came to know that Anju was on the family way, then they thought that this perhaps may bring some change in the appellant. In the meantime, they came to know that Anju was on the family way, then they thought that this perhaps may bring some change in the appellant. However, she informed them that her husband s attitude was not proper; and anything can happen during this period and desired to deliver the child at her parents house. The complainant along with his younger brother and maternal uncle Inderjeet, went to Kanpur and brought her to Gridih, but appellant declined to accompany them, despite requests, stating it was of no use to accompany her, as his demand was not being met. She delivered a male child on 1. 8. 1989, in a private nursing home at Gridih. Appellant did not enquire about her health and well being; and in october, 1990, she alongwith the child was sent back to her matrimonial home, alongwith her father-in-law and mother-in-law. She joined her husband who was posted in Kanpur. Even thereafter, there was no change in appellant s attitude and he continued to insist on his demand for car and money to buy a piece of land. ( 3 ) ON 4. 2. 1991 complainant received information that his sister-Anju was killed. On reaching Kanpur, they came to know that she was poisoned by the appellant and his family members for non-fulfillment of their demand; one Dr. Hareram was running a private nursing home (Priya Nursing Home) at Nawasth Mohalla, where the appellant used to reside earlier in the rented accommodation; he had shifted to Rawatpur Officers Colony, 2-3 months earlier, where he was residing at the time of incident. This colony was at a distance of 8-10 kilometres from his previous residence. It was alleged that on 3. 2. 91 appellant and his parents had a dinner at the house of the said doctor and she was poisoned there. On the night intervening 3rd and 4th february, 1991, complainant s sister Anju fell sick and she was brought to said nursing home, with the history of vomiting and loose motions. The doctor put her on oxygen and glucose drip. She did not respond to the treatment and her condition deteriorated. She was advised to be taken to the government hospital but she died on the way. It was further alleged that blood mixed froth was seen coming out from her noshils and her nails as well as the lips had turned blue. She did not respond to the treatment and her condition deteriorated. She was advised to be taken to the government hospital but she died on the way. It was further alleged that blood mixed froth was seen coming out from her noshils and her nails as well as the lips had turned blue. There was no mark of injury on her body, which showed that she was poisoned and mercilessly killed. He further stated that she was not provided immediate medical treatment, with a view to incapacitate her to make any statement. They washed off the vomitus material and claimed that she had died because of the brain hemorrhage. It was also alleged that on 7. 2. 1991, appellant left the minor child at Gridih, on the pretext that he is unable to keep him and that he will be a hindrance in his second marriage. On this complaint, the above noted case was registered. After completion of investigation, police filed the challan against eight persons (minor child named in the FJR was not challaned): namely appellant (husband), laxman Modi (father-in-law), Smt. Ambika modi, (mother-in-law), Ashok Modi, Dasrath modi, Raj Kishore Modi (brothers-in-law), Smt sushila Modi and Meena Modi (sisters-in-law) of the deceased (Anju Modi ). Smt. Ambika Modi (mother-in-law) and Ashok Modi (brother-in-law), died and trial against them abated. On the basis of material collected during investigations, charges were framed; the accused pleaded not guilty and claimed trial. The prosecution in support of its case examined fourteen witnesses. ( 4 ) PW-1 Jai Nandan Lai supported allegations made in the complaint regarding demand of maruti car by appellant on 7. 2. 1988, at the time of departure of Barat (Bidai) in the presence of his father Goverdhan Lal, Sahdev lal, uncle Kaushal Parkash, Haj Kishore Saba, janardhan Lal and other persons; and on 9. 2. 1998 when complainant got married, the appellant repeated tie demand in the presence of Kameshwar Singh, Goverdhan lai, Jai Parkash and others stating that he was cheated and that he would have got two maruti cars, if he had married in some other family. On 4. 2. 1991 in the morning they received a message from an unknown person that his sister had been murdered. They telephoned at appellant s residence and were told that she suffered from vomiting etc. and died while she was being taken to the hospital. On 5. 2. On 4. 2. 1991 in the morning they received a message from an unknown person that his sister had been murdered. They telephoned at appellant s residence and were told that she suffered from vomiting etc. and died while she was being taken to the hospital. On 5. 2. 1991, in the morning they reached kanpur and came to know that she was murdered by the appellant and his family members, by administering poison. The deceased was cremated on that very day in the morning at about 8-9 am. ; they returned to Gridih on 6. 2. 1991 and on the next day (7. 2. 1991) appellant and his brother Raj kishore came to their house at Gridih alongwith the child of five months old, stating that Anju had died due to brain haemorrhage and in a way, it was good for her because if she had survived, she could have turned mad; that the child would be a hindrance in his re-marriage, therefore, complainant s family should keep the child. It is alleged that child was kept by them, as other side was not prepared to take him back. On 9. 2. 1991, complainant alongwith his brother and two friends reached Kanpur and tried to lodge a report with the police, but case was not registered as appellant was posted as a superintendent of Police there. Thereafter, they met SSP Vikram Singh, who gave instructions and ultimately their complaint was accepted and the FIR was registered (mark-A ). ( 5 ) IN the cross-examination he admitted that he had accused all brothers of the appellant- mahendra Modi, as well as their wives, except shyam Sunder Modi who had expired six months earlier. The witness, admitted that haj Kishore Modi and his wife Meena Modi have been living in Bhllwara, Rajasthan; that sushila Modi and Dashrath Modi were residing with Lakshman Modi at Jhumri Talayia, he volunteered that they often used to visit lucknow, where appellant was posted. He admitted that accused Ashok Modi (brother) has been living in Delhi since 1986 and was doing Ph. D. from JNU, Delhi. He admitted that Lakshman Modi (father of appellant) was aged about 70 years and Ambika Modi (mother) was aged about 68 years; and that rajiv Ranjan (nephew of the appellant aged about 7 years) was also named in the complaint. D. from JNU, Delhi. He admitted that Lakshman Modi (father of appellant) was aged about 70 years and Ambika Modi (mother) was aged about 68 years; and that rajiv Ranjan (nephew of the appellant aged about 7 years) was also named in the complaint. He further admitted that his father filed a petition in the Court of the Addl. Distt judge for the custody of the minor child vikram @ Manu, of his deceased sister (Anju ). He admitted that appellant alongwith Anju has gone for honeymoon, but could not say whether they had gone to Calcutta, Puri, kathmandu, Gorakhpur, Kanpur and allahabad. He admitted that Vikas @ Vicky, his nephew, was admitted in Class I in Talukedar school at Lucknow in the year 1990 with the help of appellant and he was shown as the guardian, and that the child remained in appellant s house till he got admission in the hostel. He denied the suggestion that monthly fee of the child, used to be paid by appellant. He admitted that at the time of marriage his sister (deceased) was a student of b. A. (first year) in Ram Kishan Mahavidyala; and she got admission to appear in BA (final) examination after the marriage. He could not admit or deny the suggestion that Anju learnt painting, driving or horse riding, at the instance of the appellant when he was posted at Lucknow. He could not deny the suggestion that appellant got opened a saving bank account in the name of deceased and that she was made the nominee in the insurance policy taken by appellant. The witness during the cross-examination, claimed that he had been receiving letters from his sister; he was given time to produce the letters, and on the next date he expressed his inability to produce the letters, stating that those were misplaced; he was shown the letter EX. DY and DZ, but he was unable to say whether these were signed by his father or not. He denied the suggestion that appellant informed them, regarding death of Anju. He was confronted with the statement Ex. DE (Para 14) of the complaint rued by witness in the court, where it was so stated. He admitted that on 5. 2. DY and DZ, but he was unable to say whether these were signed by his father or not. He denied the suggestion that appellant informed them, regarding death of Anju. He was confronted with the statement Ex. DE (Para 14) of the complaint rued by witness in the court, where it was so stated. He admitted that on 5. 2. 1991, he alongwith Jal Nandan Lal, Vijay lal, Santdev Lal, Kaushal Parvez went to kanpur and claimed that only on reaching there they came to know from residents of rawatpur Officers Colony, that his sister was murdered, but could not give names and addresses of those persons. He admitted that on 5. 2. 1991 at about 2. 30 am, he reached kanpur, he saw the dead body of his sister at 5. 00 am, and that large number of police officials, including SSP Kanpur Vikram Singh were present, but he did not lodge any complaint, as it was occasion of cremation of dead body of his sister and thought that it was not a proper time. He was confronted with the statement Ex. DE wherein he stated that he could not lodge the report because he was all alone. On 5th February, 1991, from Kanpur he went to Lucknow to take his nephew from the school. He did not lodge fir in Gradin on 6th February, 1991. On 9th february, 1991, he along with Raja Inshore shaun, Jai Parkas All, Shamburg Prasad (DSP boar) reached Kaptur, and on 14. 2. 1991 he got typed the complaint (Their) at Kaptur, which was lodged with the police and the case was registered on 15. 2. 1991 at about 6. 00 pm. ( 6 ) PW-2-MOHD. Arif, who was working as a tailor in Gridih and claimed that one day he had gone to the house of appellant at Kanpur, he heard the appellant reprimanding the deceased Anju for non-fulfilment of his demand of maruti car and cash for purchase of land. In cross-examination he admitted that when he met appellant for the first time his aim was to get himself employed somewhere. He did not remember about number of stories of the building or floor on which appellant was residing. He did not even remember the number of house or name of the person living in the neighbourhood of appellant. In cross-examination he admitted that when he met appellant for the first time his aim was to get himself employed somewhere. He did not remember about number of stories of the building or floor on which appellant was residing. He did not even remember the number of house or name of the person living in the neighbourhood of appellant. He daimed that he worked in Kanpur for about 2 years; that he left the service of his own, but could not tell the date, month and year when he left the service. PW-3-Jai parkash Lal (another brother of the deceased ). also supported the prosecution case. He was cross-examined at length on similar lines. He admitted that his son Vikas was got admitted by the appellant in the Coliv Talukedar School, lucknow in March, 1989; and that he was local guardian, as he was posted in Lucknow, and proved copy of the affidavit Ex. PW3/ bd. ( 7 ) PW-4, Goverdhan Lal (father of the deceased) supported prosecution case and allegations made in the complaint and claimed that when marriage was being performed, appellant and his relations told him as to in which vehicle dole would go. thus demanded martin car from them in bedai . In the cross-examination he has admitted that affidavit filed by the SP City Kanpur, in connection with the death of his daughter was prepared at Gridih that appellant got a search warrant for production of the child Vikas from the special Judicial Magistrate, Lucknow; and that his statement was recorded in the guardianship case regarding custody of the child, at Gridih. He admitted that appellant was under training at the time of marriage, which continued till 16. 12. 1988; and he got his first posting at lucknow as ASP; and in July. 1990 he was posted as SP Regional Intelligence at Kanpur. He could not deny the suggestion that after marriage. Appellant and his daughter had gone for honeymoon to Calcutta, Purl, kathmandu, Nepal and Gorakhpur. The witness admitted that in October, 1989, he along with his wife and daughter accompanied them to Maussoori. He could not deny the suggestion that Anju learnt painting, car driving, and horse riding at Lucknow and she got an account opened in the bank and appellant had taken an insurance policy, wherein she was made the nominee. He admitted letters Ex. He could not deny the suggestion that Anju learnt painting, car driving, and horse riding at Lucknow and she got an account opened in the bank and appellant had taken an insurance policy, wherein she was made the nominee. He admitted letters Ex. PW-1/dy and PW I/db were written by him. He admitted his statement Ex. PW-4/da recorded in guardianship court at Gradin, wherein he identified the letter Ex. PW-4/db, dated 18. 9. 1989 written by Sanju. He could neither admit nor deny the letters marked Ex. A, B, but admitted the letters marked C, D, E, F and G, in the hand writing of his daughter neelam. He stated that letters Dl to D13 may have been written by the deceased. These letters were exhibited as PW-4/dc to DO (mode of proof of these letters was kept open ). He was confronted with his statement ex. PW-4/dp under section 161 Corp. recorded by the investigating officer, wherein the authorship of these letters was admitted by him. He admitted that his daughter desired that she be sent to Kaptur at her husband s place, after the birth of the son; thereafter she was sent alongwith appellant s parents. He admitted that no complaint was ever lodged before the death of Anju to any authority or Police. The witness was also confronted with the contents of his affidavit ex. PW/4dq. He claimed that Anju used to demand money on behalf of the accused, but no specific amount was asked, and denied he suggestion to the contrary. The complainant - Jai Nandan La! visited Kanpur many times, after the death of Smt. Anju. He denied the suggestion that Anju died due to illness. ( 8 ) PW -5 Jageshwar and PW-6 Sham La! had signed the Panchnama Ex. PW-5/a. In cross-examination they admitted that they do not know anything about the case. PW-7 constable Vijay Kumar Mishra and PW-8 constable Dhirender Prasad Awasthi collected the dead body of Smt. Anju from the mortuary at Kanpur and handed over the same to her relatives, after the post mortem. ( 9 ) PW-9 Dr. G. U. Qureshi. head of forensic medicine. S. N Medical College. Agra, stated that he received a letter from DIG Kanpur. to give opinion about cause of death of the deceased Anju. on the basis of the post mortem and other connected documents. ( 9 ) PW-9 Dr. G. U. Qureshi. head of forensic medicine. S. N Medical College. Agra, stated that he received a letter from DIG Kanpur. to give opinion about cause of death of the deceased Anju. on the basis of the post mortem and other connected documents. CFSL report revealed that no chemical poison was found in the viscera. He also looked into the treatment chart of Dr. Hareram Singh of priya nursing home. Kanpur. in which there was no indication of starting of the symptoms and their duration. The detailed clinical report and level of consciousness was also not indicated in that report. After going through the findings that the deceased did not die due to any disease. Poison, hanging or strangulation, he opined that "in asphyxia death, smothering is the only cause where in cases the external findings are absent but internal asphxial findings are present"; while answering question No. 4 of the Investigating officer, he opined that "smothering is the only possibility of causing death of SMTP. Anjou Mode" and proved the report Ex. PW-9/a. PW-10 Drugs. Sunhat, principal, M. L. N. Medical College, Allah bad stated that on the request of Crime Branch (11) CIB UP Police he examined post-mortem papers and opined that cause of death of Smt. Anju Modi was due to asphyxia, as a result of smothering and proved the report Ex. PW-10 / A PW-11 dr. K. K. Srivastava, senior medical officer, UHM hospital Kanpur, stated that he along with dr. Mishra conducted post-mortem on body of the deceased Ms. Anju Modi on 4. 2. 1991 and opined that cause of death could not be ascertained, preserved the viscera; and proved post-mortem report Ex. PW-II/a. He stated "that the signs which were found on the dead body may be of asphyxia; and that smothering is also a kind of asphyxia". He further stated that he had not mentioned the cause of death because he was doubtful whether the death was because of poisoning or asphyxia. ( 10 ) PW-12 Malhan Singh (retired section officer cm Lucknow) deposed that he partly investigated the matter and arrested the accused and filed charge sheet Ex. PW-12/a. PW-13 Inspector Rajender La! He further stated that he had not mentioned the cause of death because he was doubtful whether the death was because of poisoning or asphyxia. ( 10 ) PW-12 Malhan Singh (retired section officer cm Lucknow) deposed that he partly investigated the matter and arrested the accused and filed charge sheet Ex. PW-12/a. PW-13 Inspector Rajender La! Kapoor (retired) was co-Investigating Officer of the case, he recorded statements of the prosecution evidence, during investigation, including that of Sudhanshu Aggarwal and Sunil Chauhan (who were given up by prosecution, as not traceable and examined as defence witnesses ). He admitted that in the case diary dated 5. 2. 1991 Hakim Rai had recorded that accused Mahendra Modi had given information about the death of his wife to the SHO, on 4. 2. 91 at 5:00 am. He admitted Ex. PW-13/ da. The document sent by the local police, along with the documents sent at the time of getting the body post-mortem, which was later on given to the 1. 0. (The mode of proof was objected to by the prosecution.) He further admitted that photocopy of some letters were given by accused (Magenta mode), and prepared the list Ex. PW-13/db. He did not recollect whether photocopies of letters were shown to the complainant, to ascertain whether the same were photocopies of letters written by Smt. Anju or not. He however, admitted the note EX. DA on the statement of 10 Jai Nandan Lai u/s. 161 Cr. P. C. to the effect that the said letters were shown to PW-1 Jai Nandan Lal, who stated that these letters were written by deceased, but were never received at his residence. He stated that as per the case diary dated. 10. 9. 91 a letter was sent to Dr. D. S. Sinha for his opinion; and to his knowledge, no letter was written to the Principal, Motilal Nehru medical College Allahabad. PW-14 Ram manohar Sahu, Additional Magistrate VI, kanpur City prepared the panchnama Ex. PW-51a, of the dead body of Smt. Anju Modi on 4. 2. 91. The prosecution also gave up witnesses (i) Sudhanshu Aggarwal and (11) sunil Chauhan, as not traceable; Head constable Inder Singh (who scribed the FIR) having expired; Ram Milan and Sanjeev Kumar shukla (police officials), one of them having died and other- stated to be not available. PW-51a, of the dead body of Smt. Anju Modi on 4. 2. 91. The prosecution also gave up witnesses (i) Sudhanshu Aggarwal and (11) sunil Chauhan, as not traceable; Head constable Inder Singh (who scribed the FIR) having expired; Ram Milan and Sanjeev Kumar shukla (police officials), one of them having died and other- stated to be not available. After conclusion of the prosecution witnesses, statements or the accused persons were recorded. They denied the allegations against them. In defence following two witnesses were examined. ( 11 ) DW-1 Dr. Sudhanshu Aggarwal, who stated that in February, 1991 he was residing at house No. IV /1, Rawat Pur Officer s Colony, kanpur, which was allotted to his father; and in the adjoining house No. IV /2, appellant was residing along with his wife, his six months old child and a nephew then aged about seven years. In first week of February, 1991 in the midnight appellant came to their flat and told them that his wife was unwell and asked for help, he being a doctor went to his flat. He saw wife of the appellant lying in the bed; she was conscious. On enquiry she said that she is suffering loose motions and vomiting. She also complained of pain in abdomen and chest. He noticed vomit lying near the bed, thought that it was a case of de-hydration and advised that she should be taken to hospital. DW-2 sunil Chauhan, who was living in the neighbourhood was also called, as he was having a vehicle. He stated that wife of appellant desired that she should be taken to "priya Nursing Home", where some doctor known to them was available; she was taken there in the vehicle of Sunil Chauhan and appellant accompanied her. It was at a distance of about 7/8 kilometres, where the doctor gave her some fluid and other treatment, but her condition worsened. She was advised to be taken to the LLR hospital. In cross- examination he admitted that he has completed his MBBS before February, 1991 and joined MS in May, 1991. He was interrogated by the Police, when he was studying MS and was working in LLR hospital at Kanpur. He advised the appellant that his wife be taken to the LLR Hospital and he can help that LLR hospital was at a distance of 3 kilometres from the house of appellant. He was interrogated by the Police, when he was studying MS and was working in LLR hospital at Kanpur. He advised the appellant that his wife be taken to the LLR Hospital and he can help that LLR hospital was at a distance of 3 kilometres from the house of appellant. He was confronted with the statement of Ex. DW- 1/pa, recorded by the police, where there was no mention about having talked to the patient. He denied the suggestion that he was deposing falsely; that Anju was dead when taken to the Priya Nursing Home. DW-2 sunil Chauhan working as Executive engineer in Small Industries Corporation, kanpur stated that he was residing at 4/6 rawat Pur Officers Colony; and supported evidence of Dr. Sudhanshu Aggarwal and stated that in February, 1991, he took Smt. Anju to Priya nursing home and then to the llr hospital, in his vehicle. He was cross-examined by the prosecution but nothing substantial has come on the record to contradict this version. ( 12 ) ON the basis of above evidence, learned special PP conceded before the trial court that there is no evidence on record to support the charge of culpable homicide; and accused were acquitted of the charge under section 302 IPC. Learned trial court further found that there was no material on record to show about (a) causing disappearance of evidence of an offence, and (b) giving of false information with an intent to screen the offender from legal punishment etc. Thus accused were acquitted of the charge under section 201 IPC. Learned trial court, then considered essential ingredients of the charge for the offence under section 304b IPC: (i) whether the deceased died otherwise than under normal circumstances; and (ii) whether soon before her death, she was subjected to cruelty or harassment by accused persons in connection with the demand of dowry and rejected prosecution s argument. That even if there is any doubt about the death of the deceased because of smothering and matter falls in the category of grave suspicion; in such a case, it is for the accused to prove what was the cause of death and show that deceased died under normal circumstances. It was held that prosecution has failed to prove beyond reasonable doubt that there was a demand of dowry; and that the deceased died otherwise than under normal circumstances. It was held that prosecution has failed to prove beyond reasonable doubt that there was a demand of dowry; and that the deceased died otherwise than under normal circumstances. On this finding, accused were acquitted for the offence of 304b, giving them the benefit of doubt. Learned trial court while dealing with charge under section 498-A also held that the prosecution has failed to prove that the deceased was being harassed in connection with the demand for dowry; and accused were acquitted for the offence. Learned trial court dealing with the charge for the offence under section 4 of the Dowry prohibition Act found the appellant guilty. holding that he was being prosecuted for demand of dowry (maruti car), at the time of his marriage and even thereafter. It was held that allegations find support from the FIR and the statements of four prosecution witnesses pwsl. 2. 3 and 4. and raised presumption under section 8a of the Act in favour of the prosecution, holding that it was for the accused to prove that he did not demand any dowry and that appellant has failed to prove the same. ( 13 ) APPELLANT has challenged the said finding by the learned trial court holding him guilty for the offence under section 4 of the Act, sentencing him as aforesaid. The State has not challenged the impugned judgment but the complainant has filed a revision questioning the same. As appeal and the revision arise out of the same Judgment, these are being disposed of by a common order. Now it will be convenient to deal with the appeal and the revision separately. Crl. Appeal No. 138/2003 ( 14 ) SHRI R. K. Naseem learned counsel for the appellant argued that prosecution version is highly improbable and false. The learned trial judge having disbelieved the prosecution evidence and acquitted the appellant for the offence under sections 498a and 304b IPC grossly erred in accepting the same evidence for convicting him, for the offence under section 4 of the Dowry Prohibition Act. 1961 by raising a presumption under section 8a. Learned counsel for the State, on the other hand, argued that prosecution through the statements of PW-1 Jai Nandan Lal ; PW-2 mohd. 1961 by raising a presumption under section 8a. Learned counsel for the State, on the other hand, argued that prosecution through the statements of PW-1 Jai Nandan Lal ; PW-2 mohd. Asif; PW-3 Jai Parkash Lal and PW -4 goverdhan Lal has proved that accused made a demand for dowry (maruti car), at the time of marriage and even after the marriage. The witnesses being near relations, were in distress, when their statements were recorded by the police and the contradictions in their statements are of minor nature and there is no reason to disbelieve them. Learned counsel further argued that the appellant has failed to show that he did not demand dowry as envisaged by section 8-A of the Act and thus his appeal should fail. (15 ) IN order to appreciate the rival contentions, it is necessary to consider the scope and ambit of section 8-A of the Dowry prohibition Act, 1961 which puts the onus on the accused to prove that he did not take or demand any dowry when he is prosecuted for offence under section 3 or 4 of the Act. This section creates a rule of evidence and shifts the burden, on the accused to prove his innocence. It reads as under: 8-A. Burden of proof in certain cases.- where any person is prosecuted for taking or abetting the taking of any dowry under Section 3, or the demanding of dowry under Section-4, the burden of proving that he had not committed an offence under those sections shall be on him. " ( 16 ) THE literal reading of the above section gives an impression that once the accused is prosecuted for giving or taking or demanding dowry, punishable under section 3 or 4 of the Act, then the entire burden will be on him to prove that he has not committed any offence and the prosecution is not required to prove the offence. But a deeper examination of this section would show that it is not so. The question which arises for consideration is when can any person be said to be "prosecuted" for giving or taking or demanding "dowry", as defined under Section 2 of the Dowry Prohibition Act? The word prosecution is not defined in the Dowry prohibition Act or in the Code of Criminal procedure. The question which arises for consideration is when can any person be said to be "prosecuted" for giving or taking or demanding "dowry", as defined under Section 2 of the Dowry Prohibition Act? The word prosecution is not defined in the Dowry prohibition Act or in the Code of Criminal procedure. Black s Law Dictionary defines the word prosecution inter alia to mean "a criminal action; a proceeding instituted and carried on by due course of law, before a competent tribunal, for the purpose of determining the guilt or innocence of a person charged with crime. " The dowry is defined in section 2 of the Act and the penalty for demanding dowry is provided under section 4 of the Act. Section 2 of the Act reads as under: "2. Definition of "dowry".- In this Act, dowry means any property or valuable security given or agreed to be given either directly or indirectly- (a) by one party to a marriage to the other party to the marriage; or (b) By the parents 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. " ( 17 ) THE criminal law can be set in motion on the basis of report lodged to the Police or the complaint in the Court, inaccordance with law. During investigation Police is required to collect material, record statements of witnesses under Section 161 Cr. P. C. before filing of the charge sheet and in the complaint case, complainant is required to lead pre summoning evidence before cognizance can be taken. For the purpose of showing the offence under section 4, it would be necessary for the prosecution to show that the accused had demanded dowry directly or indirectly from the parents or other relatives of a bride or bridegroom as the case may be. Only when the basic ingredients of the offence are established by the prosecution, the burden would shift on the accused to show that no such demand was made. Any other interpretation of Section 8a of the Act. would be against the basic principles of criminal jurisprudence. Only when the basic ingredients of the offence are established by the prosecution, the burden would shift on the accused to show that no such demand was made. Any other interpretation of Section 8a of the Act. would be against the basic principles of criminal jurisprudence. This view finds support from the Full Bench decision of the Karnataka High court in Hari Kumar Vs. State of Karnataka 1995 Vol. 1 Crimes 573. ( 18 ) NOW the stage is reached to consider whether the prosecution in this case has discharged its initial burden to establish basic ingredients of the offence of demand of dowry, under section 4 against the appellant. ( 19 ) SECTION 498a of the IPC was inserted by criminal Law (Second Amendment) Act, 1983, with a view to curb the vice of cruelty to a married woman by the husband or in-laws. Explanation (b) of section 498a shows that if there be any harassment of the woman with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand, the same would amount to cruelty. Section 304-B IPC was added by Dowry Prohibition (Amendment) act, 1986, with a view to combat the increasing menace of dowry death. It lays down, where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called dowry death . The explanation further provides that for the purpose of this section, dowry , shall have the same meaning as in section 2 of the dowry Prohibition Act, 1961. And section 4 of the Dowry Prohibition Act, provides punishment for giving, taking or demanding dowry. Although these offences are independent, yet "demand for dowry" is the common ingredient. The explanation further provides that for the purpose of this section, dowry , shall have the same meaning as in section 2 of the dowry Prohibition Act, 1961. And section 4 of the Dowry Prohibition Act, provides punishment for giving, taking or demanding dowry. Although these offences are independent, yet "demand for dowry" is the common ingredient. In this case prosecution allegations are that appellant-Mahendra Modi demanded maruti car at the time of bidai and continued to insist on this demand even after the marriage Learned trial court, after noticing the evidence of the various witnesses, held that the prosecution has failed to prove that the deceased was being harassed, in connection with demand of dowry and acquitted the accused for the offence under section 498a Further, learned trial court acquitted appellant for the offence punishable under Section 304b giving him benefit of doubt, holding that the prosecution has failed to prove that the deceased was harassed in connection with the demand of dowry, soon before her death. Having acquitted the accused for the offence under sections 498a and 304b, on the same evidence finding could not be recorded that the prosecution has succeeded in proving requisites for the offence for demand of dowry, punishable under section 4. On the similar facts the Supreme court in Sakhi Mandalani Vs. State of Bihar and Ors. JT 1999 (8) SC 351 considered the ingredients of the offence under section 304- b IPC and sections 3 and 4 of the Dowry prohibition Act, and set aside the conviction under section 4 of the Act. It was held as under: "6. These sections make out independent offences, but in the instant case it was the demand for dowry coupled with harassment which constitutes the basis of the prosecution case. Once the main part of the charge under Section 304-B was not found established, it was not possible to record conviction under Section 3 and 4 of the Dowry Prohibition Act. " ( 20 ) IN view of the above, conviction of the appellant under Section 4 of the Act is not sustainable and liable to be set aside, on this short ground. It would, of course, be subject to the outcome of the revision petition filed by the complainant challenging acquittal of the appellant and other accused for the offences for which they were charged. Crl. Revision No. 392/2003 ( 21 ) MR. It would, of course, be subject to the outcome of the revision petition filed by the complainant challenging acquittal of the appellant and other accused for the offences for which they were charged. Crl. Revision No. 392/2003 ( 21 ) MR. D. C. Mathur, learned counsel for the petitioner questioning the impugned judgement argued that the deceased had died within, three years of her marriage. Prosecution has produced the evidence to show that she was being continuously harassed in connection with demand of dowry; that there is enough material on record to show that Anju had died otherwise than under normal circumstances. Learned counsel, referring to the evidence of the doctors argued that the prosecution has proved that the deceased died due to asphyxia as a result of smothering. Learned counsel further argued that the expression otherwise than under normal circumstances in Section 304-B, IPC, means not in the usual course but under suspicious circumstances; and learned trial court failed to consider the effect of presumption under section 113-B of the Evidence Act and erred in holding that the prosecution has failed to prove that it was a case of unnatural death. ( 22 ) IN order to find out whether the prosecution has succeeded to show that the deceased died otherwise than under normal circumstances, it is necessary to refer to the evidence of the doctors. PW-9, Dr. G. U. Qureshi, Head of Department of Medical college, Agra, has stated that on the request of the Investigating Officer, he examined papers sent to him, namely FIR dated 15. 2. 1991. post mortem report dated 4. 2. 1991. treatment chart of Smt. Anju Modi (provided by Dr. Hareram Singh of the Priya nursing Home), which did not indicate when symptoms of the disease had started, there was no history of any past ailment or respiratory disease; and there was no evidence of external or internal injuries. The doctors who conducted the post-mortem were not able to give any opinion about the cause of the death, and CFSL report on viscera did not show any poison. He also noted that the deceased did not die due to any disease, poison, hanging or strangulation. In this background, while answering question no. 4 relating to smothering. He opined that smothering is the only possibility of causing death of Smt. Anju PW-10, Dr. He also noted that the deceased did not die due to any disease, poison, hanging or strangulation. In this background, while answering question no. 4 relating to smothering. He opined that smothering is the only possibility of causing death of Smt. Anju PW-10, Dr. U. S. Sinha, principal, Medical College and Hospital, Allahabad, on the basis of document, opined that the death was due to asphyxia, as a result of smothering. Prosecution also examined PW-11 dr. K. K. Srivastava, Senior Medical Officer, medical College and Hospital, Kanpur who conducted post mortem on the body of the deceased on 4. 2. 1991, along with Dr. Mishra. He opined that cause of death could not be ascertained and sent the viscera for chemical examination. No chemical substance was found in the viscera and thereafter no further opinion was sough from him. ( 23 ) FROM the above evidence it is clear that the team of doctors (PW-11. K. K. Srivastava, who conducted the post-mortem and dr. Mishra) could not ascertain the cause of death. They sent the viscera of deceased for chemical examination, to rule out the possibility of poisoning. In cross-examination he admitted that "my opinion was not sought after obtaining the CFSL report. I cannot say about the cause of death in this case because no poison was found in CFSL report and no asphyxia was found in the PM report. In such a case, to ascertain the cause of death further tests such as Histopathological test, Drug reaction and Bacteriological test were required to be made. " Similarly, PW-9 Dr. D. G. Qureshi, has stated that he opined about smothering being the possible cause of death because he could not find any other cause. He further admitted that the doctors who conducted post-mortem are in a better position to describe about the cause of death because they had seen organs of the body. In cross-examination he admitted that: "in my opinion i had stated that in the cause of death, there was the possibility of smothering. " that it is correct that I opined about smothering, as the possible cause of death because I could rot find any other cause of the death. " It is correct that when dead body is manhandled after death and there is congestion and froth inside the respiratory tract then froth may come out. " that it is correct that I opined about smothering, as the possible cause of death because I could rot find any other cause of the death. " It is correct that when dead body is manhandled after death and there is congestion and froth inside the respiratory tract then froth may come out. Prosecution has heavily relied on the evidence of PW-10, Dr. U. S. Sinha. He was cross-examined on the basis of books on medical jurisprudence and toxicology. He admitted classical signs of asphyxia are (a) cynosis. (b) Congestion, and (c) Fluidity of blood. He agreed with writing in the book "forensic Pathology 1991" by Dr. Barnard that these signs are. so non-specific that little reliance can be placed on them in the absence of other confirmatory evidence. " The witness admitted that he was debarred from conducting post mortem examination by the district Magistrate. Allahabad and filed clarificatory order Ex. PW-10-X, PW-10/y and pw-10/z. He admitted that he was put under suspension for financial irregularities and in conducting post-mortem examination, but volunteered that it was stayed by the High court of Allahabad in the writ petition filed by him. It may be noted here that prosecution had recorded the statement of Dr. Sudershan aggarwal, who was admittedly living in the neighbourhood. He was called bv the husband of the deceased, when she fell sick on the fateful night. She was taken to Priya Nursing home where she was given medical treatment. This witness was given up by the prosecution, as not traceable. He has been examined as dw-I and has supported the defence version that the deceased was suffering from loose motions, vomitting, etc. She was taken to the private doctor at her request. Even otherwise, as per prosecution s own evidence, there are two conflicting opinions on the cause of death. As per settled law, the view which favours the accused has to be accepted and the matter remains within the arena of reasonable doubt. Thus, I find nothing wrong, in the impugned judgement, holding that the prosecution has failed to prove beyond reasonable doubt that the deceased died otherwise than under normal circumstances. ( 24 ) LEARNED counsel for the petitioners, referring to the evidence of PW-I Jacaranda lal; complainant PW-2 Mohd. Thus, I find nothing wrong, in the impugned judgement, holding that the prosecution has failed to prove beyond reasonable doubt that the deceased died otherwise than under normal circumstances. ( 24 ) LEARNED counsel for the petitioners, referring to the evidence of PW-I Jacaranda lal; complainant PW-2 Mohd. Arif; PW-3 Jay prakash Lal; and PW-4 Goverdhan Lal, next argued that the accused was harassing and torturing Smt. Anju in connection with demand of dowry and the learned trial judge erred in rejecting their statements on surmises and conjectures, without considering the effect of presumptions under Section 113a of the Evidence Act. ( 25 ) LAW governing powers of the court, while exercising revisional jurisdiction, against the judgment of acquittal is well settled by several authoritative pronouncements. The Supreme court in Thankappan Naddar and Ors Vs. Gopala Krishnan and Anr 2002 (4) Crimes 36 (SC) by way of illustration, laid down the categories of cases which would justify interference with a finding of acquittal in revision: (i) where the trial court has no jurisdiction to try the case, but has still acquitted the accused; (II) where the trial court has wrongly, shut out evidence which the prosecution wished to produce; (iii) where the appellate court has wrongly held the evidence which was admitted by the trial court to be inadmissible; (iv) where the material evidence has been overlooked only (either) by the trial court or by the appellate court; and (v) where the acquittal is based on the compounding of the offence which is invalid under the law. It was also held that the High court can justifiably interfere with the order of acquittal in cases of similar nature. ( 26 ) EACH case depends upon its own facts. The prosecution has to stand or fall on its own legs and the weakness of the defence cannot be the basis of conviction. Reference in this regard can be made to the law laid down by the Supreme Court in Bhagirath vs. State of M. P. AIR 1976 SC 975 . Further, in approaching the evidence in a criminal trial, basic principle of assessing the evidence is that probability should give preference to possibility, unless the possibility is supported by some clinching evidence. In this case, as noticed above, the case set up in the FIR was of poisoning the deceased, which was given a complete go-by. Further, in approaching the evidence in a criminal trial, basic principle of assessing the evidence is that probability should give preference to possibility, unless the possibility is supported by some clinching evidence. In this case, as noticed above, the case set up in the FIR was of poisoning the deceased, which was given a complete go-by. The complainant implicated all the brothers of the husband of the deceased and their wives, including a minor child (nephew) aged about seven years, as well as the parents, in the FIR One of them was admittedly living in Delhi and doing Ph. D. , (he died during the trial); other brother and his wife were living in Rajasthan alongwith family; and the remaining family members were living in Bihar. The deceased, alongwith her husband, was living in Kanpur. PW-3 Jai prakash Lal, brother of the deceased, admitted that he got his child admitted in a public School at Lucknow and accused mahendra Modi, was shown as his guardian. Witnesses in cross-examination admitted that deceased used to write letters to her relations. PW-1 Jai Nandan Lal admitted in his cross examination that he had been receiving letters. No such letter was produced. On the contrary, the letter which was admitted in the guardianship Court was denied by PW-4 till he- was confronted in the cross-examination. The story of the minor child, aged about five months, being left by Mahendra Modi and his brother at Gridih, Bihar also does not inspire confidence. Otherwise, there was no necessity of their filing the petition claiming guardianship of the child. The evidence shows that mahendra Modi was under training and finished his training upon 16. 12. 1988. Smt Anju visited various places in India; she got admission to B. A. (final) course after her marriage -. In the statement under Section 161, Cr. P. C. letters purported to have been written by Anju were admitted by the witnesses but the same were denied when he appeared as a witness in Court. In the facts and circumstances of this case, I find no illegality or impropriety in the order to warrant interference in revisional jurisdiction. There is no merit in the revision petition filed by the complainant, and the same is liable to be dismissed. ( 27 ) FOR the foregoing reasons, appeal of appellant Mahendra Modi is accepted. In the facts and circumstances of this case, I find no illegality or impropriety in the order to warrant interference in revisional jurisdiction. There is no merit in the revision petition filed by the complainant, and the same is liable to be dismissed. ( 27 ) FOR the foregoing reasons, appeal of appellant Mahendra Modi is accepted. The impugned judgment and order holding him guilty under section 4 of the Dowry prohibition Act and sentencing him as aforesaid, is hereby set aside and he is acquitted. Revision petition filed by the complainant is dismissed. .