JUDGMENT Hon : Mr. Justice J.C.S. Rawat The present revision has been directed against the judgment and order dated 08.04.1997 passed by Addl. Sessions Judge (IInd) Haridwar in which the learned Sessions Judge acquitted the accused persons, i.e., respondent Nos. 2 to 5 in Sessions Trial No. 272/96. During the pendency of the revision respondent No. 3, Tulsi Ram has died. 2. Brief facts leading to the prosecution is that the marriage of the deceased-Mona was solemnized with Moti Ram. It is also alleged by the prosecution that immediately after the marriage, the husband and her in-laws were demanding a sum of Rs. 15,000-20,000/- as dowry and she was beaten several times. When she did not conceded to the demand of her husband and his relatives, she was turned out from the house and she came to her parental house. It is further alleged that the accused-respondents had obtained the signature of the deceased on the blank paper and an application was given purporting to have been written by the deceased to S.S.P. Saharanpur and that application was factually wrong. On 30.10.1995 an application was given by the father of the deceased to the A.C.J.M., Roorkee that the accused-respondents are demanding dowry and they are harassing the deceased-Mona. A police report was sought and the police submitted the report that the facts narrated in the application for demanding the dowry by the husband and their relatives were not correct. Thereafter, the parties came to the amicable settlement before the A.C.M. and the deceased – Mona went to her matrimonial house. The brother of the deceased, Kanhaiya Lal after finishing his official duties went to the house of the deceased-Mona on 07.02.1996 and he was informed by the villagers that his sister Mona-deceased had been murdered by the accused/respondent Nos. 2 to 5. 3. Thereafter a report was lodged and the panchanama was prepared and the matter was investigated. The investigation culminated into chargesheet. 4. The accused-respondent Nos. 2 to 5 were charged u/s 304-B and 498-A I.P.C. The accused-respondent Nos. 2 to 5 denied the charges levelled against them and claimed trial. 5. The prosecution in support of its case produced Kanhaiya Lal-PW1, brother of the deceased who lodged the report. Ghanshyam-PW2, alleged to have been the independent witness of the incident who has stated that the demand of dowry was made and the deceased was subjected to the cruelty. 2 to 5 denied the charges levelled against them and claimed trial. 5. The prosecution in support of its case produced Kanhaiya Lal-PW1, brother of the deceased who lodged the report. Ghanshyam-PW2, alleged to have been the independent witness of the incident who has stated that the demand of dowry was made and the deceased was subjected to the cruelty. Ginuwa-PW3 is the father of the deceased. They all have stated that the accused-Ginuwa-PW3 is the father of the deceased. They all have stated that the accused-respondent Nos. 2 to 5 have demanded a sum of Rs. 20,000/- in dowry and the deceased-Mona was treated cruelly and she was subjected to marpeet. The prosecution also produced the evidence of Dr. U.S. Kureel-PW4 who conducted the post mortem on 08.02.1996 at about 10:30 a.m. and he has opined that the death of the deceased would have taken place one day back and the cause of the death was asphyxia. The post-mortem report was also proved by him. The prosecution has also adduced the evidence of Asarpal Singh-PW5 who is a formal witness and who has written chick and recorded the G.D. Dayaram Arya-PW6 is the S.I. who has prepared the panchnama and sent the dead body to the post-mortem and prepared the necessary paper and proved the papers. S.S. Chauhan-PW7 is the investigating Officer who investigated the matter and submitted the chargesheet. 6. Accused Tulsiram has stated that he resides alongwith his wife in some other village. The husband of the deceased-Moti Ram has stated that he was not in his residence on the day of the incident. When he received the information of the death of his wife, he reached at the spot. It is also stated in the statement recorded u/s 313 Cr.P.C. that the brother and the father of the deceased used to come to her village and used to take the deceased to her house and the brother of the deceased used to come to her house with his friend and the deceased-Mona was not happy with these things. They have denied all the allegations made in the prosecution evidence. They have denied all the allegations made in the prosecution evidence. It is also stated by Moti Ram that on the day of the incident, the brother of the deceased Kanhaiya Lal came to her house and he insisted to take deceased-Mona from matrimonial house to her parental house and the deceased-Mona refused to go with her brother and there was scuffle between the brother and the sister and thereafter the deceased-Mona went for a sleep alongwith a candle and thereafter she was found dead. The accused-respondent Madhuwati lives in her matrimonial house and she was not present at the time of the incident. 7. The defence also adduced the evidence of Samay Singh-DW1 who has stated that the accused Tulsi Ram alongwith his wife resides in village Sethpur, Thana-Laksar. He has further stated that the accused Tulsi Ram is the teacher in village Sethpur. Tulsi Ram was the tenant of the Samay Singh. He had also stated that Tulsi Ram & his wife were in Sethpur Village. This fact reveals that he & his wife were not present in the village where the incident took place. Fullu-DW2 has also corroborated this fact. Shoraj Singh-DW3 has stated that the brother of the deceased used to come to the house of the deceased-Mona and the brother of the deceased wanted to take her sister to her parental house and she refused. There was some scuffle between the brother and the sister. Thereafter villagers came there on being scuffle and they saw smoke was coming out from the house and later on the deceased-Mona was found dead. 8. After appraisal of the evidence, learned Sessions Judge held that the prosecution had failed to prove the ingredients of Section 304-B and 498-A and the accused-respondent Nos. 2 to 5 were acquitted. It was observed that it is imperative on the part of the prosecution to prove that the dowry demand was made immediately before the death. The prosecution has only adduced the evidence that the demand was made either two years before the death or 6 months before the death. Learned Sessions Judge also held that he did not believe the theory of demand of dowry of Rs. 20,000/-. The prosecution has only adduced the evidence that the demand was made either two years before the death or 6 months before the death. Learned Sessions Judge also held that he did not believe the theory of demand of dowry of Rs. 20,000/-. He has held that such demand was not indicated in earlier application or in the statement recorded under Section 161 Cr.P.C. He has observed that the word ‘dowry’ has been mentioned in the application or in the statement recorded u/s 161 Cr.P.C. and no specific amount has been mentioned prior to the evidence recorded before the court. He has further held that Smt. Mona-deceased has given an application prior to the incident in which it has not been mentioned that she is being treated cruelly or any demand of dowry made by her husband and his relatives. He has not believed the theory of the prosecution that the letter was written and the signature on the said application was obtained with coercion. This fact was also disbelieved by the Sessions Judge. The learned Sessions Judge after recording the findings acquitted the accused-respondent Nos. 2 to 5. 9. Feeling aggrieved by the judgment and order dated 08.04.1997 passed by Addl. Sessions Judge (IInd) Haridwar, the present revision petition has been preferred. 10. It is well settled principle of law while hearing the appeal against the acquittal that if two views are possible, the view which has been taken by the court below or by the Sessions Judge shall prevail. It is also well settled position of law that the Sessions Judge is in a better position to appreciate the evidence than the High Court because the witnesses appear before the court below and he also observes the demeanor of the witnesses and the manner in which the evidence was recorded before the court below by the witness. Keeping in view these principle of laws, I will analyze the evidence on record. 11. At the outset, it needs to be mentioned here that in order to seek the conviction u/s 304-B against the person for the offence of dowry death, the prosecution is pledged to prove that :- (1) The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances. (2) Such a death must have occurred within seven years of her marriage. (2) Such a death must have occurred within seven years of her marriage. (3) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband. (4) Such cruelty or harassment must be for, or, in connection with demand of dowry. (5) Such cruelty or harassment is shown to have been meted out to the woman soon before her death. 12. As and when the aforesaid ingredients of section 304-B as indicated above are proved then a presumption of dowry death shall be drawn against the appellant u/s 113-B of the Indian Evidence Act. It is to be kept in mind that a presumption u/s 113-B is a presumption of law. If the prosecution established the ingredients as indicated above the presumption of 113-B will arise in favour of the prosecution. The presumption is also rebuttable. For this I have to analyze the evidence which is on record that the ingredients as has been indicated above has been proved. 13. The first and foremost ingredient is that whether any demand of dowry was made and it was made immediately before the death. In this case, it is alleged in the evidence that a sum of Rs. 15,000-20,000/- were demanded by the husband and his relatives as dowry. Now a demand of Rs. 15,000-20,000/- has not been indicated in the earlier application or in the statement recorded u/s 161 Cr.P.C. 14. The prosecution adduced the evidences of Kanhaiya Lal-PW1, Ghanshyam-PW2 and Ginuwa-PW3 to prove fact of dowry immediately before the death. But the statement recorded u/s 161 Cr.P.C. does not find place that the said amount has been demanded by the husband and his relatives. At the first time the statement recorded before the court below, the theory of 20,000/- was brought before the court. This is an afterthought and if it would have been correct, this fact would have been indicated or mentioned in the statement recorded u/s 161 Cr.P.C. The application given to A.C.J.M., Roorkee does not mention indicates that a sum of Rs. 20,000/- was demanded by the accused-respondents. This is an afterthought and if it would have been correct, this fact would have been indicated or mentioned in the statement recorded u/s 161 Cr.P.C. The application given to A.C.J.M., Roorkee does not mention indicates that a sum of Rs. 20,000/- was demanded by the accused-respondents. The police report which was submitted to the court in presence of the order of A.C.J.M., Roorkee on the aforesaid application of the father of the deceased clearly indicates that the deceased-Mona had not made any complaint to the inquiry officer that any demand of dowry or any cruelty was committed upon her by the husband or by his relatives. It was indicated in the report that the fact which has been indicated in the aforesaid application was not correct. Ex. Kha-5 F.I.R. of this incident was lodged and in that report there was no mention that there was a demand of dowry of Rs. 20,000/-. It is also alleged that the application Ex. Kha-1 was signed by Mona-deceased which was given to S.S.P. Saharanpur. In that application she had not made any complaint against her husband and their relatives. It is written in the application that the father and his brother Kanhaiya wanted to take her from her matrimonial house and she is happy there. The father and brother of the deceased want to implicate his husband and his relatives u/s 498-A. It was alleged by the revisionist that the said application was made under coercion. This application was also came before the Magistrate on 17.10.1995. This fact that the Ex. Kha-1 was taken under coercion has not been stated by the father and brother of the deceased before the Magistrate. This fact shows that the application given by deceased-Mona to the S.S.P. was submitted by her own accord. It was not obtained fraudulently or by coercive manner. The prosecution witness that the deceased was treated cruelly immediately before the death is proved. The evidence of the prosecution is not reliable. It is also in the evidence that the demand of the dowry was made two year after the marriage and six months before the death. Even if it is taken that such demand was made, it cannot be said it is made soon before the death. Thus the ingredients as indicated above three and four are not proved by the evidence. 15. Even if it is taken that such demand was made, it cannot be said it is made soon before the death. Thus the ingredients as indicated above three and four are not proved by the evidence. 15. There is no other direct witness which reveals that the deceased-Mona was subjected to cruelty or any demand of dowry was made immediately before the death. In absence of non-fulfillment of ingredients of 304-B, the presumption of 113-B will not be attracted in this case. The defence has also led the evidence and it is also established principle of law that the evidence of prosecution as a defence will be appreciated on the same scale and same standard. The evidence of DW-1, DW-2 also proves that Tulsi Ram and his wife do not reside in the same house where the incident took place. They reside in the other village. The prosecution could not collect any evidence from the village where the incident took place that these persons were present when the incident took place. When this fact would have been correct, the villagers would have definitely stated to the investigating officer that these accused were in the village where the incident took place. 16. There is no other direct evidence against the accused. 17. I am of the view that the Sessions Judge had given a detailed findings and reasonings in the judgment and order dated 08.04.1997. I am completely in agreement with the findings recorded by the learned Sessions Judge. 18. I do not find any substance in this revision. The revision is accordingly dismissed.