JUDGMENT 1. - By filing instant criminal appeal under Section 374 Cr.P.C., the accused appellants have challenged the Judgment of conviction and sentence dated 7.9.2002 passed by learned Additional District and Sessions Judge (Fast Track) S.No. 2 Dholpur (for short the learned trial Court') in Sessions Case No. 156/2001, whereby it convicted and sentenced the accused appellants as under: Under Section 304-B I.P.C. : 10 years Rigorous Imprisonment and a fine of Rs. 1,000/-. In default of payment of fine, the accused appellants shall further undergo two months' simple imprisonment. Under Section 498-A I.P.C.: Two years Rigorous Imprisonment and a fine of Rs. 500/-. In default of payment of fine, accused appellants shall further undergo one months' imprisonment. 2. Both the sentences were ordered to run concurrently. 3. Brief facts of the case are that the complainant Kamal Singh on 1.12.1999 lodged a written report Ex. P-4 at Police Station Kanchanpur to this effect that his daughter Suman on 11.5.1999 with Ramavtar and in the marriage he gave Rs. 1 lac cash, other domestic items, golden and silver ornaments were also given. He further stated that the accused demanded motorcycle. He sent his daughter on 23.11.1999 with Ramavatar along with items of Rs. 10,000/- and at this time the demand of motor cycle was raised. He further stated that Manoj Singh Parihar, Mahadev Singh and Behnoi of Ramavatar warned that if the motorcycle is not given then it will not be good. It is alleged that in the night of 29 and 30.11.1999 Ramavatar Singh Parmar, Bacchu Singh, wife of Bacchu Singh, Mahadev Singh, Manoj Singh, Tetal Singh, Smt. Longa committed murder of Suman and performed her funeral. It is stated that on 30.11.1999 he sent Shiv Kumar Singh and Satyendra Singh to meet his daughter then he came to know about the murder of his daughter. 4. On the basis of this written report, the police registered an F.I.R. for the offence under Sections 304-B and 201 I.P.C. 5. The Police after investigation submitted challan against the accused appellants for the aforesaid offences. 6. The learned trial Court framed the charges against the accused appellants. He pleaded not guilty and claimed to be tried in the matter. 7. The prosecution in support of its case produced as many as 12 witnesses and certain documents were got exhibited. The Police after investigation submitted challan against the accused appellants for the aforesaid offences. 6. The learned trial Court framed the charges against the accused appellants. He pleaded not guilty and claimed to be tried in the matter. 7. The prosecution in support of its case produced as many as 12 witnesses and certain documents were got exhibited. Thereafter, the statements of the accused appellants under Section 313 Cr.P.C. were recoded. In defence the accused appellants produced two witnesses. 8. The learned trial Court after hearing both the parties convicted and sentenced the accused appellants vide judgment 7.9.2002 as mentioned above. 9. The accused appellants being aggrieved with the impugned judgment of conviction and sentence-dated 7.9.2002 has preferred the instant criminal appeal. 10. Mr. Naqvi, learned counsel for the accused appellants made an oral request before this Court that he is basically challenging the conviction and sentence of the accused appellants No. 2 Bacchu Singh and No. 3 Pushpa W/o Bacchu Singh. He further submits that he is not challenging the conviction of accused appellants No. 1 Ramavatar but prays for his reduction of sentence. 11. Mr. Naqvi learned counsel for the accused appellants submits that the statements of prosecution witnesses are inconsistent, contradictory and also suffer from infirmities and the aforesaid witnesses have changed their statements at various places. Thus, the aforesaid witnesses cannot be treated as credible and reliable witnesses. Learned trial Court has not considered the statement of defence witnesses. Most of the witnesses are interested one. 12. Per contra, Mr. B.N. Sandhu, learned counsel for the Public Prosecutor assisted by Mr. Anil Jain, learned counsel for the complainant, have controverted the aforesaid facts and submit that it is a clear cut case of dowry death. The accused appellants have killed deceased Suman and after death without informing the parents of the deceased, they performed the funeral. The prosecution has also provided the case against the accused appellants. There is no contradictions, omissions and improvements in the statement of the prosecution witnesses. Lastly, they submit that the conviction of the accused appellants be maintained. 13. The accused appellants have killed deceased Suman and after death without informing the parents of the deceased, they performed the funeral. The prosecution has also provided the case against the accused appellants. There is no contradictions, omissions and improvements in the statement of the prosecution witnesses. Lastly, they submit that the conviction of the accused appellants be maintained. 13. Learned Public Prosecutor in support of the case of the prosecution has placed reliance upon a Judgment of Thakkan Jha and others v. State of Bihar, reported in (2004) 13 SCC 348 , wherein in para 6 Honble Apex Court has relied upon a case of Kans Raj v. State of Punjab, reported in (2000) 5 SCC 207 : 2000 SCC (Cri.) 935 , in which a three Judge Bench of Hon'ble Apex Court dealt with the presumption available in terms of Section 113B of the Evidence Act, 1872 (in short "the Evidence Act") and its effect on finding persons guilty in terms of Section 304B I.P.C.It was noted as follows: (SCC P-217 para 9) "9. The law as it exists now provides that where the death of a woman is caused by any bums or bodily injury or occurs otherwise than under normal circumstances within 7 years of marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative for or in connection with any demand of dowry such death shall be punishable under Section 304-B. In order to seek a conviction against a person for the offence of dowry death, the prosecution is obliged to prove that: (a) the death of a woman was caused by bums or bodily injury or had occurred otherwise than under normal circumstances; (b) such death should have occurred within 7 years of her marriage; (c) the deceased was subjected to cruelty or harassment by her husband or by any relative of her husband; and (d) such cruelty or harassment should be for or in connection with the demand of dowry; and (e) to such cruelty or harassment the deceased should have been subjected soon before her death." 7. No presumption under Section 113-B of the Evidence Act would be drawn against the accused if it is shown that after the alleged demand, cruelty or harassment the dispute stood resolved and there was no evidence of cruelty or harassment thereafter. No presumption under Section 113-B of the Evidence Act would be drawn against the accused if it is shown that after the alleged demand, cruelty or harassment the dispute stood resolved and there was no evidence of cruelty or harassment thereafter. Mere lapse of some time by itself would not provide to an accused a defence, if the course of conduct relating to cruelty or harassment in connection with the dowry demand is shown to have existed earlier in time not too late and too stale before the date of death of the victim. This is so because the expression used in the relevant provision is "soon before". The expression is a relative term, which is required to be considered under specific circumstance of each case, and no straitjacket formula can be laid down by fixing any time limit. The expression is pregnant with the idea of proximity test. It cannot be said that the term "soon before" is synonymous with the term "immediately before". This is because of what is stated in Section 114 Illustration (a) of the Evidence Act. The determination of the period which can come within the term "soon before" 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 interval 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." 14. I have heard learned counsel for the accused appellants as well as learned Public Prosecutor for the State and carefully gone through the entire material made available to me including the judgment cited by the learned Public Prosecutor for the State. 15. First of all, I will go through the statement of PW-2 Kamal Singh, who is the father of the deceased Suman. 15. First of all, I will go through the statement of PW-2 Kamal Singh, who is the father of the deceased Suman. The relevant part of the statement of this witness is reproduced as under: " fcnk djkus okyh esa jkevorkj] eukst] egknso] ,d jkevorkj dk cguksbZ ftldk eSa uke ugha tkurkA ;g jkr dks lk<+s vkB cts igqWapsA bu yksxksa us mlh fnu jkr dks [kkuk [kkus ds oDr eksVjlkbZfdy dh ekax jkevorkj us j[kh FkhA bl ij eSus dgk bl oDr esjs ikl dqN ugha gS le; vk;sxk rks vkidh ;g ekax Hkh iwjh dj nwaxkA 24 uoEcj 1999 dks tc ;g yksx [kkuk [kkus cSBs jkevorkj us iqu% eksVjlkbZfdy dh ekax dhA rks eSaus budks le>k;k fd eSa ljdkjh ukSdjh djrk gwa ru[okg feyrh gS eSa lkbZfdy Hkh ugha j[krkA vki in ik/k ij gks vki dqN cu vktks i<+ fy[k yks rks ;g ekax ge rqEgkjh iwjh dj ldrs gSA blds ckn Hkh jkevorkj] egknso] eukst o budk cguksbZ bUgksaus /kedh nh fd gejks fy, eksVjlkbZfdy cgqr t:jh gSA vxj vki eksVjlkbZfdy ugha nsaxs blds ifj.kke Hk;adj gksaxsA " 16. PW-5 Satyawati, who is mother of deceased Suman, has made improvements, omissions and contradictions in her testimony. The relevant part of the statement is reproduced as under: " eSa lqeu dks tkurh gwaA lqeu esjh yM+dh gSA lqeu dh 'kknh lwjksBh jke vorkj ds lkFk gqbZ FkhA 'kknh vkt ls <+kbZ lky igys gqbZ FkhA lqeu [kRe gks xbZA 'kknh ds N% efgus ckn fcnk djkus x;s rc lqeu ej xbZA lqeu dks ejs nks o"kZ ls vf/kd dk le; gks x;k gSA jkevorkj us gels ngst esa eksVjlkbZfdy ekaxh FkhA " 17. PW-6 Muni Devi, has made improvements, omissions and contradictions in her testimony. PW-6 Muni Devi, has made improvements, omissions and contradictions in her testimony. The relevant part of the statement is reproduced as under: " lqeu esjs nsoj dh yM+dh FkhA lqeu dh 'kknh lqjksBh ds jkevorkj ds lkFk gqbZ FkhA lqeu dh jkevorkj us xyk ?kksaVdj gR;k dj nhA tks vkt ls nks o"kZ iwoZ dj nh gSA lqeu dh gR;k jkevorkj us eksVjlkbZfdy u nsus ij dh FkhA jkevorkj us ngst esa eksVjlkbZfdy ugha nh blfy;s ekj nhA lqeu dh 'kknh jkevorkj ds lkFk vkt ls <+kbZ o"kZ iwoZ gqbZ FkhA deyflag esjk nsoj yxrk gSA lqeu ds ejus dh vkr lqudj gekjs xkao ls dksbZ vkSjr fQjus ugha xbZA vkneh x;s FksA vkneh ns[kus ds fy;s x;s Fks] fQjus ugha x;s FksA eSa lqeu dh llqjky vkt rd ugha xbZA 6 efgus tc rd yM+dh gekjs ;gka jgh mldh llqjky ls dksbZ vkneh ugha vk;k u fdlh us vkrs ns[kkA 'kknh ds le; eSa ogk ij ekStwn FkhA fcuk fdlh >a>V ds 'kknh vkjke ls lEiUu gqbZ FkhA u rks llqjky okyksa us gels dqN dgk u geus muls dqN dgkA dksbZ ngst dh ekax tkap ugha gqbZ FkhA 'kknh iDdh djus ds fy;s esjk ifr vius HkkbZ ;kfu esjs nsoj ds lkFk lwjksBh x;k FkkA ogka ls vkdj mlus dksbZ ekax tkap dh ckr gedks ugha crkbZA 'kknh ds ckn QwQh;k lkl] mldk ifr o mlds yM+ds ls esjs dHkh dksbZ ckr ugha gqbZA 'kknh ds ckn QwQh;k lkl] mldk ifr o mlds yM+ds ls esjs dHkh dksbZ ckr ugha gqbZA 'kknh iDdh gksus ds le;] 'kknh ds le; eksVj lkbZfdy o vU; fdlh izdkj ds ngst dh ekax llqjky okyksa ls ugha gqbZA ;g eq>s ugha irk fd lEcU/k esa tks dqN fn;k og nsdj dh ethZ ls fn;k ;k ekax ij fn;kA esjh jkevorkj ls o mlds lkFk vk;s fdlh O;fDr ls dksbZ ckrphr ml le; ugha gqbZ tc os fonk djk;s vk;s FksA eq>s iqfyl ds ikl nl fnu ckn ysdj vk;s FksA ml le; esjs ifr o esjk nsoj gekjs lkFk FksA esa iapsflag dks tkurh gwWaA ;g eq>s ugha irk fd 'kknh mlh us djkbZ Fkh ;k ugha esjh nsojkuh lR;orh o mlds vkneh deyflag ls dHkh ckr ugha gqbZ fd ngst esa D;k D;k ekaxk gSA 'kknh ds ckn iapsflag gekjs ?kj vk;k fd ugha eq>s irk ughaA vk;k gksxk rks njokts ij vk;k gksxkA ge rks ?kj ds vUnj jgrs gSA lR;sUnz o f'kodqekj us ykSVdj fdlh xkao okys dk uke uha crk;k ftlus mUgsa ;g crk;k fd lqeu dks xyk nckdj ekj fn;k gSA eSaus iqfyl dks ;g crk;k Fkk fd lR;sUnz o f'kodqekj us gesa ;g crk;k gS fd lqeu dks mldh llqjky okyksa us xyk nckdj ekj fn;k gS ;g ckr xkao okyksa us mudks crkbZ gSA iqfyl c;ku izn'kZ Mh04 esa ;g ckr vafdr ugha gSA dkj.k eSa ugha crk ldrh fd D;ksa vafdr ugha gSA eq>s ;g irk ugha fd lqeu dh 'kknh esa lqeu dh llqjky ls 'kknh ds le; ;k nloha ds le; izkokl ds nkSjku dkSu dkSu ekStwn FkkA ;g yM+dh dks gh irk gksxkA iqfyl c;ku izn'kZ Mh04 dk Hkkx , l;s ch lqukA ,slk c;ku eSaus iqfyl dks ugha fn;kA cfYd ;g crk;k Fkk fd eksVj lkbZfdy ysdj vkuk ugha rks Bhd ugha iMsxhA " 18. PW-8 Vikram Singh, has not supported the case of the prosecution and has been declared hostile. PW-9 Shiv Kumar and PW-10 Charan Singh have made improvements, contradictions and omissions her their testimony. Statements of DW-1 Panchan and DW-2 Suresh also do not support the case of the prosecution. 19. Taking into consideration entire facts and circumstances of the case, I am of the opinion that the ends of justice would be met if the sentence awarded to the accused appellant Ramavatar is reduced to 9 (nine) years from 10 (ten) years and the accused appellants No. 2 Bacchu Singh and No. 3 Pushpa are acquitted of the aforesaid offences. 20. In the result, the appeal is partly allowed. The accused appellants No. 2 and 3 namely Bachhu Singh S/o Hukum Singh and Pushpa W/o Bachhu Singh, are acquitted of the aforesaid offences and the sentence awarded to the accused appellant No. 1 Ramavatar is reduced to 9 (Nine) years from 10 (ten) years so far as Section 304-B I.P.C. is concerned. The sentence of three years imposed upon accused appellant No. 1 Ramavatar in respect of Section 201 I.P.C. does not warrant any interference. The sentence shall run concurrently. So far as imposition of fine on the accused appellant under Section 304-B I.P.C. is concerned, it is waived as there is no provision in this Section to impose a fine upon the accused appellant. 21. The impugned Judgment of the trial Judge shall stand modified as indicated above.Appeal partly allowed. *******