JUDGMENT 1. - Shanti Devi, Radhey Shyam and Manoj Kumar, the appellants herein, were put to trial before learned Additional Sessions Judge No. 2, Sikar, who vide judgment dated January 9, 2002 convicted and sentenced them as under:-U/s. 304B Indian Penal Code :Each to undergo rigorous imprisonment for seven years. U/s. 498A Indian Penal Code : Each to undergo two years rigorous imprisonment and fine of Rs. 1,000/- in default fifteen days simple imprisonment. The substantive sentences were ordered to run concurrently. 2. The informant Prakash (PW.8) submitted a written report at Police Station Sadar Sikar on April 10, 1998 with the averments that his daughter Laxmi @ Parmila (since deceased) was married to Manoj (first appellant) on June 22, 1997. On April 9, 1998 Radhey Shyam Sharma (second appellant) informed him that Laxmi was burnt while cooking food and declared dead in the hospital. On that report proceedings under section 174 Criminal Procedure Code were initiated by Sub Divisional Magistrate. Dead body was subjected to autopsy. Statements of Prakash were recorded wherein Prakash stated that his daughter died accidentally. However Prakash thereafter took U turn and filed a complaint in the court of Judicial Magistrate stating therein that the appellants caused dowry death to his daughter. The complaint was sent for investigation under section 156(3) Criminal Procedure Code to Police Station Sadar Sikar where case under section 304-B and 498-A, Indian Penal Code was registered and investigation commenced. After usual investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge No. 2' Sikar. Charges under sections 304-B and 498-A, Indian Penal Code were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 11 witnesses. In the explanation under Section 313 Criminal Procedure Code, the appellants claimed innocence. Two witnesses in defence were examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated hereinabove. 3. I have heard learned counsel for the parties and with their assistance weighed the material on record. 4. Learned counsel for the appellants made following submissions: (i) The father of deceased made no allegation of demand of dowry in the first information report. The complaint which was filed after days was afterthought and it could not have been believed. 3. I have heard learned counsel for the parties and with their assistance weighed the material on record. 4. Learned counsel for the appellants made following submissions: (i) The father of deceased made no allegation of demand of dowry in the first information report. The complaint which was filed after days was afterthought and it could not have been believed. (ii) There were two versions of the incident and it Is well settled that earlier her version ought to have been taken to be true. (iii) The issue of demand of dowry was already resolved when the accused allegedly said that there was no need of money, therefore the conviction under section 304B, Indian Penal Code was not sustainable. 5. Coming to the evidence adduced at the trial I notice that Laxmi died within nine months of her marriage under abnormal circumstances A look at the site plan goes to show that in the kitchen Cooking gas was installed but post mortem report shows that there was smell of kerosene on the dead body. However, in the kitchen no sign of kerosene was found and the lantern was full of kerosene. The first version stated in the report was based on the information supplied by the in-laws of the deceased. Conjoint reading of statements of prosecution witnesses however established that Laxmi was dragged to such a situation by her husband that she opted to commit suicide. 6. The expression 'dowry' is defined by Section 2 of the Dowry Prohibition Act, 1961 (for short 'the Act'), as meaning anything which is given either directly or indirectly, by one party to a marriage to the other party to the marriage or 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 after marriage as consideration for the marriage of the said parties. The act has been amended by Act 63 of 1984 and Act 43 of 1986. Formerly dowry was defined as property given as consideration for the marriage but the words "as consideration for the marriage" have been omitted and substituted by the words "in connection with the marriage'. The act has been amended by Act 63 of 1984 and Act 43 of 1986. Formerly dowry was defined as property given as consideration for the marriage but the words "as consideration for the marriage" have been omitted and substituted by the words "in connection with the marriage'. Now dowry means any property given or agreed to be given by the parents of a party to the marriage at marriage or before marriage or at any time after marriage in connection the marriage. 7. Considering the definition of dowry their Lordships of Supreme Court in Reema Aggarwal v. Anupam, (2004) 3 SCC 199 , indicated thus: (Para 14) "The definition of the term "dowry" under Section 2 of the Dowry Act shows that any property or valuable security given or "agreed to be given" either directly or indirectly by one party to the marriage to the other party to the marriage "at or before or after the marriage" as a "consideration for the marriage of the said parties" would become "dowry" punishable under the Dowry Act. Property or valuable security so as to constitute "dowry" within the meaning of the Dowry Act must, therefore, be given or demanded "as consideration for the marriage". 8. Interpreting the words "in connection with the marriage of the said parties", the Apex court in Satvir Singh v. State of Punjab, (2001) 8 SCC 633 , propounded as under: "The word "dowry" in Section 304-B, has to be understood as it is defined in Section 2 of the Dowry Prohibition Act, 1961. Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third is "at any time" after the marriage. The third occasion may appear to be an unending period. But the crucial words are "in connection with the marriage of the said parties". This means that giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties. There can be many other instances for payment of money or giving property as between the spouses. For example some customary payments in connection with birth of a child or other ceremonies prevalent in different societies. Such payments are not enveloped within the ambit of "dowry". (Emphasis supplied) 9. There can be many other instances for payment of money or giving property as between the spouses. For example some customary payments in connection with birth of a child or other ceremonies prevalent in different societies. Such payments are not enveloped within the ambit of "dowry". (Emphasis supplied) 9. The word "agreement" referred in Section 2 has also been considered in Pawan Kumar v. State of Haryana, (1998) 3 SCC 309 , by their Lord- ships of Supreme Court and it was observed as under: (Para 16) "Demand for dowry neither conceives nor would conceive of any agreement. The word "agreement" referred to in Section 2 of the Dowry Prohibition Act, 1961- has to be inferred on the facts and circumstances of each case. The interpretation that conviction can only be if there is agreement for dowry, is misconceived. This would be contrary to the mandate and object of the Act. "Dowry" definition is to be interpreted with the other provisions of the Act including Section 3, which refers to giving or talking dowry and Section 4 which deals with penalty for demanding dowry, under the 1961 Act and the Indian Penal Code. This makes it clear that even demand of dowry on other ingredients being satisfied is punishable. This leads to the inference, when persistent demands for TV and scooter are made from the bride after marriage or from her parents, it would constitute to be In connection with the marriage and it would be a case of demand of dowry within the meaning of Section 304B Indian Penal Code It is not always necessary that there be any agreement for dowry." 10. That takes me to the question as to whether the appellants have committed the dowry death of Laxmi? Section 113B of the Evidence Act provides that when the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death. 11. 11. Analysing the words 'soon before her death' their Lordships of the Supreme Court in Kamesh Panjiyar v. State of Bihar, (2005) 2 SCC 388 , held as under: "A conjoint reading of Section 113B of the Evidence Act and Section 304B Indian Penal Code shows that there must be material to show that "soon before her death", the victim was subjected to cruelty or harassment "for or in connection with the demand of dowry" Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of "death occurring other- wise than in normal circumstances". The expression "soon before her death" is very relevant where Section 113B of the Evidence Act and Section 304B, Indian Penal Code are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. "Soon before" is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test as indicated by the said expression both for the proof of an offence of dowry death as well as for raising a presumption under section 113-B of the Evidence Act. A reference to the expression "soon before" used in Section 114 illustration (a) of the Evidence Act is relevant. The determination of the period which can come within the term "soon before' undo section 114 illustration (a) is left to be determined by the courts, depending upon the facts and circumstances of each case. Suffice, however, to Indicate that the expression "soon before' would normally imply that the intend should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effects of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb men tal equilibrium of the woman concerned, it would be of no consequence." (Emphasis supplid 12. There must be existence of a proximate and live link between the effects of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb men tal equilibrium of the woman concerned, it would be of no consequence." (Emphasis supplid 12. In K. Prema S. Rao v. Yadla Srinivasa Rao, AIR 2003 Supreme Court 11 , their Lordships of Supreme Court a examined the words 'soon before her death' and observed as under: "To attract the provisions of Section 304-B. Indian Penal Code, one of the main ingredients of the offence which is required to be established is that "soon before her death' she was subjected to cruelty and harassment 'in connection with the demand for dowry'. There is no evidence on record to show that the land was demanded as a dowry. It was given by the father to the deceased in marriage rival as "pasupukumuma". The harassment or cruelty meted out to the deceased wife by the husband after the marriage to force her to transfer the land in his name was 'note in connection with any demand for dowry'. One of the main ingredients of the offence of "demand of dowry' being absent in this case, the accused could not be said to have committed offence under Section 304-B." 13. A bare look at the evidence on record shows that the harassment or cruelty meted by the deceased was not in connection with any demand of dowry. There is no material to show that soon before her death Laxmi was subjected to cruelty or harassment for or in connection with the demand of dowry. Existence of a proximate and live link between the effects of cruelty based on demand and the death is missing. Laxmi met with the death because appellant husband treated her cruelly. Clause (a) of the Explanation under section 498A, Indian Penal Code defines cruelty to mean a "wilful conduct of the husband of such nature as is likely to drive the woman to commit suicide". In the instant case it is established from the occular and documentary evidence that the appellant husband harassed and treated Laxmi curelly. As a result of such cruel treatment Laxmi was driven to meet the suicidal death. In the instant case it is established from the occular and documentary evidence that the appellant husband harassed and treated Laxmi curelly. As a result of such cruel treatment Laxmi was driven to meet the suicidal death. Thus offence of abetment of committing suicide punishable under section 306 Indian Penal Code is clearly made out against appellant husband Manoj Kumar and for that purpose presumption under section 113A of the Evidence Act can be raised against him. Section 306 Indian Penal Code and Section 113-A Evidence Act read thus: "306: Abetment of suicide. - If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." "113-A: Presumption as to abetment of suicide by a married woman.- When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative or her husband. Explanation - For the purposes of this section cruelty shall have the same meaning as in section 498A of the Indian Penal Code, 1860." 14. From the material on record it is evident that appellant husband is guilty of cruel treatment of his wife, as a result of which she committed suicide within one year of their marriage. On such evidence the presumption which arises under section 113A of the Evidence Act is that the husband abetted the suicide. The word 'cruelty' as mentioned in the Explanation below Section 113A of the Evidence Act has been given the same meaning contained in the Explanation below Section 498A, Indian Penal Code On the facts established, the wilful conduct of husband in neglecting and harassing his wife was so cruel that she was driven to commit suicide and the offence of abetment of committing suicide, punishable under section 306 Indian Penal Code is proved against appellant Manoj Kumar. I am however of the view that charges under sections 304-B and 498-A Indian Penal Code are not proved against the appellants Shanti Devi and Radhey Shyam beyond reasonable doubt and they are entitled to benefit of doubt. 15. Although charge under section 306 Indian Penal Code was not framed against appellant Manoj Kumar but omission to frame charge under section 306 Indian Penal Code has not resulted in any failure of justice. In Hira Lai v. State (Govt. of NCT) Delhi, (2003) 8 SCC 80 , their Lordships of Supreme Court in a similar situation observed as under: "Though no charge was framed under section 306 Indian Penal Code, that is inconsequential. On the facts of the case, even though it is difficult to sustain the conviction under section 304B, Indian Penal Code, there is sufficient material to convict the accused- appellants in terms of Section 306 Indian Penal Code along with Section 498A, Indian Penal Code" 16. For the reasons aforementioned, I dispose of the instant appeal in the following terms: (i) The appeal of appellants Shanti Devi and Radhey Shyam is allowed and their conviction and sentence under sections 498-A and 304-B, Indian Penal Code are set aside. The appellants Shanti Devi and Radhey Shyam are on bail they need not surrender and their bail bonds stand discharged. (ii) The appeal of appellant Manoj Kumar is partly allowed and instead of Section 304-B, 1 convict him under section 306 Indian Penal Code Looking to the fact that Manoj Kumar has already undergone confinement for a period of more than five years and four months the ends of justice would be met in sentencing him to the period already under- gone by him in confinement. I however confirm his conviction and sentence under section 498A Indian Penal Code Since Manoj Kumar has already served out the sentence awarded to him under section 498A Indian Penal Code, I direct that appellant Manoj Kumar, who is in jail, shall be set at liberty forthwith, if not required to be detained in any other case. (iii) The impugned judgment of learned trial court stands modified as indicated above. Appeal disposed of. *******