JUDGMENT 1. - Radha Devi, appellant herein, along with Shyam Sunder Soni and Chandra Prakash Soni were put to trial before learned Additional Sessions Judge (Fast Track) No. 1, Beawar District Ajmer, who vide judgment dated July 30,2005, while acquitting co-accused persons, convicted and sentenced the appellant as under : U/s. 304B IPC : To undergo rigorous imprisonment for ten years and fine of Rs. 25000/-in default to further suffer one year simple imprisonment. U/s. 498A IPC : To undergo three years rigorous imprisonment and fine of Rs. 10000/-in default to further suffer six months simple imprisonment. The substantive sentences were ordered to run concurrently. 2. Being aggrieved by the conviction and sentence the appellant Radha Devi preferred the appeal, where as the complainant as well as State of Rajasthan ,pave respectively preferred the Revision Petition No. 841/2005 and Leave to Appeal No. 266/2005 challenging the acquittal of co-accused persons. 3. The complainant has also preferred the appeal under section 454 Cr.RC. bearing No. 661/2006 against the order dated September 29, 2005 of Additional Sessions Judge (Fast Track) No. 1 Beawar whereby the application of the complainant filed under section 452 Cr.PC. claiming seized goods was dismissed. 4. It is the prosecution case that the informant Mahesh Chand Soni (Pw.4) submitted a written report (Ex.P-1) at Police Station Beawar on May 5, 2003 with the averments that his daughter Pushpa Soni (since deceased) was married to Dr. Shyam Sunder Soni on February 10, 2000. Soon after her marriage Pushpa was harassed by her husband and in-laws for the demand of car, AC, jewelery and more money. On April 25, 2000 the informant received information about death of Pushpa. On asking from in-laws they informed that Pushpa died because of heart-attack. But on seeing the condition of dead body it was found that there were marks on her neck. On that report case under section 304B IPC was registered and investigation commenced. Dead body was subjected to autopsy. Statements of witnesses were recorded. After usual investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 1, Beawar District Ajmer. Charges under sections 498A and 304B IPC were framed against the appellant, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 12 witnesses and one court witness. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 1, Beawar District Ajmer. Charges under sections 498A and 304B IPC were framed against the appellant, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 12 witnesses and one court witness. In the explanation under Section 313 Cr.PC., the appellant claimed innocence. Sixteen witnesses in defence were examined and 223 documents were exhibited. Learned trial Judge on hearing final submissions, while acquitting co-accused persons convicted and sentenced the appellant as indicated herein above.4(A). I have heard learned counsel for the parties and with their assistance weighed the material on record.4(B). Factual situation emerges from the material on record may be summarised as under : (i) In the post mortem report Ex.P-14 cause of death of Pushpa was asphyxia and congestion as a result of anti mortem hanging. (ii) Bhawani Singh Detha (Cw.1), who was posted as Sub Divisional Magistrate Beawar and in whose presence the dead body was taken to hospital and statements of witnesses were recorded, stated that according to statements of Mahesh Chand (Ex.D-45) and Gauri (Ex.D-46), which were recorded in his presence no allegations for demand of dowry were levelled against husband and father-in-law of deceased. (iii) On analysing the testimony of witnesses, only Radha Devi (mother-in-law of deceased) was found guilty under section 498-A and 304-B IPC. 5. 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 oi, :arty to a marriage to the other party to the marriage or by the parents of eirr-r party to a marriage or by any other person to either party to the marriage c , to any other person at or before or after the 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 wTh he 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 wTh he marriage". Now dowry means any property given or agreed to be divan by the parents of a party to the marriage at marriage or before marriage or at any time after marriage in connection with the marriage. 6. Considering the definition of dowry their Lordships of Supreme Court in Reema Aggarwal v. Anupam, 2004 (1) WLC (SC) Cri. 442 : (2004) 3 SCC 199 , indicated thus : (Para 14) "The definition of the term "dowry" under Section 2 he "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". 7. 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) 8. 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) 8. The word "agreement" referred in Section 2 has also been considered in Pawan Kumar v. State of Haryana, (1998) 3 SCC 309 , by their Lordships 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 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 IPC. It is not always necessary that there be any agreement for dowry." 9. That takes me to the question as to whether the appellant has committed the dowry death of Pushpa? Section 113-B 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. 10. Analysing the words soon before her death their Lordships of the Supreme Court in Kamesh Panjiyar v. State of Bihar, 2005 (1) WLC (SC) Cri. 10. Analysing the words soon before her death their Lordships of the Supreme Court in Kamesh Panjiyar v. State of Bihar, 2005 (1) WLC (SC) Cri. 480 : (2005) 2 SCC 388 , held as under : "A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC 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 otherwise than in normal circumstances". The expression "soon before her death" is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC 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" under 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 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 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 mental equilibrium of the woman concerned, it would be of no consequence." (Emphasis supplied) 11. 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 mental equilibrium of the woman concerned, it would be of no consequence." (Emphasis supplied) 11. In K. Prema S. Rao v. Yadla Srinivasa Rao, 2003 (1) WLC (SC) Cri. 559 : AIR 2003 SC 11 their Lordships of Supreme Court examined the words "soon before her death' and observed as under : "To attract the provisions of section 304-B, IPC, one of the main ingredients of the offence which is required to be established is that "scpi 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 ritual as "pasupakumuma'. 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 'not 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." 12. A bare look at the evidence on record goes to show that the harassment or cruelty meted by the deceased was not in connection with any demand of dowry. The medical evidence adduced by the prosecution could not, however, proved beyond reasonable doubt that the death of Pushpa was homicidal in nature. Possibility that Pushpa committed suicide cannot be ruled out. Existence of a proximate and live link between the effects of cruelty based on demand and the death is missing. It is however established that Pushpa met with the death because her husband was away and she was residing with her mother-in-law, who treated her cruelly. Clause (a) of the Explanation under section 498-A IPC defines cruelty to mean a "wilful conduct of the appellant of such nature as is likely to drive the woman to commit suicide". In the instant case it is established from the ocular evidence that the appellant harassed and treated Pushpa cruelly. Clause (a) of the Explanation under section 498-A IPC defines cruelty to mean a "wilful conduct of the appellant of such nature as is likely to drive the woman to commit suicide". In the instant case it is established from the ocular evidence that the appellant harassed and treated Pushpa cruelly. As a result of such cruel treatment Pushpa was driven to meet the suicidal death. Thus offence of abetment of committing suicide punishable under section 306 IPC is clearly made out against appellant Radha Devi and for that purpose presumption under section 113-A of the Evidence Act can be raised against them. Section 306 IPC 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 of her husband. Explanation - For the purposes of this section cruelty shall have the same meaning as in section 498A of the Indian Penal Code (45 of 1860)." 13. From the material on record it is evident that appellant is guilty of cruel treatment of deceased, as a result of which she was forced to commit suicide. On such evidence the presumption which arises under section 113-A of the Evidence Act is that the appellant abetted the deceased to commit suicide. The word 'cruelty' as mentioned in the Explanation below Section 113-A of the Evidence Act has been given the same meaning contained in the Explanation below Section 498A IPC. On such evidence the presumption which arises under section 113-A of the Evidence Act is that the appellant abetted the deceased to commit suicide. The word 'cruelty' as mentioned in the Explanation below Section 113-A of the Evidence Act has been given the same meaning contained in the Explanation below Section 498A IPC. On the facts established, the wilful conduct of appellant in harassing the deceased was so cruel that she was driven to commit suicide and the offence of abetment of committing suicide, punishable under section 306 IPC is proved against appellant. I am of the view that charge under section 498A IPC is proved against the appellant. 14. That takes me to the leave to appeal and revision petition preferred by State of Rajasthan and complainant, I do not find any merit in the same. Learned trial court after analysing the material on record has rightly acquitted co-accused persons. 15. So far the appeal of complainant preferred against* the order dated September 29, 2005 of Additional Sessions Judge (Fast Track) No. 1 Beawar whereby the application filed under section 452 Cr.PC. for custody of seized goods was dismissed is concerned, I am of the view that the complainant is entitled to receive the goods belonging to deceased. 16. Although charge under section 306 IPC was not framed against appellant but omission to frame charge under section 306 IPC has not resulted in any failure of justice. In Hira Lal v. State of (Govt. of NCT) Delhi, 2003 (2) WLC (SC) Cri. 216 : (2003) 8 SCC 80 , their Lordships of Supreme Court in a Similar situation observed as under : "Though no charge was framed under section 306 IPC, that is inconsequential. On the facts of the case, even though it is difficult to sustain the conviction under section 304-B IPC, there is sufficient material to convict the accused-appellants in terms of Section 306 IPC along with Section 498A IPC." 17. For then reasons, I dispose of instant matters in the following terms : (i) I partly allow the appeal of appellant Radha Devi and instead of section 304B IPC, I convict her under section .306 IPC and sentence her to suffer rigorous imprisonment for five years and fine of As. 1000/-in default to further suffer rigorous imprisonment three months. I however maintain her conviction and sentence under section 498A IPC. 1000/-in default to further suffer rigorous imprisonment three months. I however maintain her conviction and sentence under section 498A IPC. (ii) I do not find any merit in the Revision Petition No. 841/2005 and Leave to Appeal No. 266/2005 respectively preferred by complainant Mahesh Chand Soni and the State of Rajasthan and the same stand dismissed. (iii) Appeal No. 661/2006 preferred by complainant Mahesh Chand Soni under section 454 Cr.P.C. is allowed and the order dated September 29, 2005 passed by Additional Sessions Judge (Fast Track) No. 1 Beawar is set aside and while allowing the application filed under section 452 Cr.P.C. direct learned Judge to issue appropriate directions to Police Station Kotwall Beawar in regard to handing over the seized goods to the complainant. (iv) The Impugned judgment of learned trial court stands modified as indicated above. *******