JUDGMENT 1. - This appeal has been preferred by the accused appellant Niyamat Khan against the judgment of Additional District & Sessions Judge (Fast Track) No. 3 Ajmer, Camp Kishangarh, dated 08.07.2004, whereby the accused appellant was convicted for the offence under Sections 304B and 498A Indian Penal Code and was sentenced for the offence under Section 304B, for ten years rigorous imprisonment and for the offence under Section 498A, for a period of three years rigorous imprisonment and a fine of Rs. 5,000/-, in default of payment of fine to further undergo, rigorous imprisonment for one year. 2. Briefly stated, the prosecution case is that on 15.06.2003, at about 10.30 A.M., Anwar Khan, lodged a report at Police Station Kishangarh, stating that his daughter Naseem Bano was married on 22.02.2003 in Pathan Samaj Samelan, with Niyamat S/o. Chotu Khan, resident of Kishangarh. He further reported that after few days demand of golden ring, jewellery, fridge, cooler and almirah as well as cash was raised by accused Niyamat Khan, husband and his three sisters. Just before two days of this report, a sum of Rs. 10,000/- was demanded or if not available, then 5,000/- could be advanced and with this demand deceased had come to him but the demand could not be acceded then accused Niyamat himself came to demand 5,000/- and he was also refused by the complainant in view of his financial capacity. He also told the appellant that his daughter should not be harassed. Even two days before this report, his wife had gone to her daughter to meet and she found every thing quite healthy and did not find any thing to suspect that her daughter could be put to death. On this report a case under Section 498(A), 304(B) Indian Penal Code was registered and the investigation commenced. During investigation, 'Panchayatnama' of dead body (Ex.2) was prepared on 15.06.2003. The dead body was handed over to Anwar Khan, father of the deceased. Post Mortem was conducted and the Board Members opined that no cause of death could be ascertained and the same can be ascertained after the FSL Report of viscera collected from the body. After receipt of FSL Report (Ex.P5), the cause of death was found to be cardio-respiratory failure as a result of organo-phosphorous poisoning. During the investigation, accused Niyamat Khan and his sisters Ku. After receipt of FSL Report (Ex.P5), the cause of death was found to be cardio-respiratory failure as a result of organo-phosphorous poisoning. During the investigation, accused Niyamat Khan and his sisters Ku. Heera alias Tarana, D/o. Fareed Khan, aged 18 years, Ku. Praveen D/o. Shamsher Khan, aged 19 years and Ku. Babu alias Ramjan D/o. Chotu Khan, were also arrested and after collecting necessary evidence, all of them were challaned to the Court. They were charge sheeted for the offence under Sections 498A and 304B IPC. The accused pleaded not guilty and claimed to be tried. The police examined as many as 17 witnesses and thereafter the statements of accused were recorded under Section 313 Cr.P.C. In the statement under Section 313 Criminal Procedure Code the accused claimed to be innocent. Two witnesses, namely DW1 Zakir Hussain and DW2 Ahmad Hussain were examined on the point that they lived in the nearby locality and they had not heard about any demand of dowry and consequent harassment of the deceased. After hearing final arguments the trial court acquitted co-accused Ku. Heera, Ku. Praveen and Ku. Babu for the offence under Sections 498A and 304B Indian Penal Code while the accused appellant was convicted for the offence under Sections 304B and 498A Indian Penal Code and was sentenced in the manner indicated herein above. 3. Heard the arguments of learned counsel for the appellant, learned Public Prosecutor for the State and perused the record. 4. Learned counsel for the appellant has argued that the prosecution has failed to prove beyond doubt that the accused appellant had ever subjected the deceased to cruelty or harassment in connection with demand of dowry or otherwise. In fact, the deceased had committed suicide for any reason and unconnected with the demand of dowry and without there being any cause of cruelty or harassment at the part of the husband and it is not proved as to what prevailed in her mind to take the extreme step to end the life and hence benefit of doubt be given to the accused appellant who is innocent in the matter. 5. 5. Factual situation emerging from the material on record may be summarised as under- (i) Deceased Naseem Bano and her sister PW12 Zareena were married in a common marriage festival organised by 'Pathan Samaj Samelan' on dated 22.02.2003; (ii) The deceased and PW12 Zareena, her sister, were married in the same family and there has been no demand of dowry at the time of marriage; (iii) The post mortem of the dead body of Naseem Bano was conducted on 15.06.2003, at 3.00 P.M. by the Medical Board and no cause of death could be ascertained and she was not found with any external sign of violence on her body; (iv) On Chemical examination of viscera sent to FSL, as per FSL Report (Ex.P5), organo phosphorous Insecticide was found, hence cause of death of deceased was found to be cardio-respiratory failure as a result of organo phosphorous poisoning. 6. Before analysing the evidence adduced at the trial it would be appropriate to consider the relevant statutory provisions. The expression 'dowry' is defined by Section 2 of the Dowry Prohibition Act, 1961 as amended by Act of 1984, 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 parent 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 mehr in the case of a person to whom the Muslim Personal Law (Shariat) applies. 7. Considering the definition of dowry their Lordships of Supreme Court in Reena Aggarwal v. Anupam : 2004 ACJ 160 (S.C.) : 2004 (1) CCC 676 (S.C.) : (2004) 3 SCC 199 . 7. Considering the definition of dowry their Lordships of Supreme Court in Reena Aggarwal v. Anupam : 2004 ACJ 160 (S.C.) : 2004 (1) CCC 676 (S.C.) : (2004) 3 SCC 199 . indicated that dowry as defined must be given or demanded as consideration of marriage as under- 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 "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. In State of Andhra Pradesh v. Raj Gopal Asawa : 2004 ACJ 502 (S.C.) : 2004 (2) CCC 526 (S.C.) : JT 2004 (3) SC 560. the Apex Court indicated thus- The offence alleged against the respondents is under Section 304B Indian Penal Code which makes "demand of dowry" itself punishable. Demand neither conceives nor would conceive of any agreement. If for convicting any offender, agreement for dowry is to be proved, hardly any offenders would come under the clutches of law. When Section 304B refers to "demand of dowry", it refers to the demand of property or valuable security as referred to in the definition of "dowry" under the Act. The argument that there is no . demand of dowry, in the present case, has no force. In cases of dowry deaths and suicides, circumstantial evidence plays an important role and inferences can be drawn on the basis of such evidence. That could be either direct or indirect. It is significant that Section 4 of the Act, was also amended by means of Act 63 of 1984, under which it is an offence to demand dowry directly or indirectly from the parents or other relatives or guardian of a bride. The word "agreement" referred to in section 2 has to be inferred on the facts and circumstances of each case. The interpretation that the respondents seek, 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. The word "agreement" referred to in section 2 has to be inferred on the facts and circumstances of each case. The interpretation that the respondents seek, 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 taking dowry and section 4 which deals with a penalty for demanding dowry, under the Act and the IPC. This makes it clear that even demand of dowry on other ingredients being satisfied is punishable. It is not always necessary that there be any agreement for dowry. (Emphasis Supplied) 9. Under Section 113B of the Evidence Act it is provided 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 ACJ 448 (S.C.) : 2005 (1) Criminal Court Cases 935 (S.C.) : (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 otherwise 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. 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. 11. While analysing the evidence adduced by the prosecution, it may be noted that the prosecution has founded its case mainly on the testimony of PW10 Anwar Khan, father of the deceased, PW11 Smt. Bagum, mother of the deceased, PW12 Zareena, sister of the deceased and PW14, Arif Mohammad, brother of the deceased. From the prosecution case it is revealed that the marriage took place on 22.02.2003, on a common platform for marriage, namely 'Pathan Samaj Samelan' and that the deceased and sister Zareena PW12 were married in the same family and the husband of the deceased, the appellant herein, as well as Nizam Ahmad, husband of Zareena were brothers as they are sons of maternal uncle and sister-in-law (bua). In the FIR lodged by PW10 Anwar Khan, (Ex.PI 1), two-fold allegations were made. First allegation pertained to the demand of articles like cooler, fridge, almirah, gold ring and cash by the appellant and his three sisters after few days of the marriage. The second allegation has been that the present accused appellant demanded 10,000/- cash and he along with Zareena PW12 came to ask the money at the residence of the complainant Anwar Khan PW10, while the complainant was not present there and on next day he sent the deceased Naseem for money but she was also denied the money in view of the financial stringency. As per the prosecution case, two days after the said demand, the deceased committed suicide by consuming poisonous substance as stated here-in-above. On being tried, the co-accused Ku. Heera, Parveen and Babu, who are the three sisters in relation of accused appellant aged between 18 to 20 years were also charged for the offence under Sections 304-B and 498-A Indian Penal Code along with the present accused appellant. On being tried, the co-accused Ku. Heera, Parveen and Babu, who are the three sisters in relation of accused appellant aged between 18 to 20 years were also charged for the offence under Sections 304-B and 498-A Indian Penal Code along with the present accused appellant. All these three co-accused unmarried girls stand acquitted by the order of the learned trial court on the ground that the prosecution has failed to lead sufficient evidence to prove the fact of demand of dowry and consequent harassment of the victim on account thereof. Consequently, the accused appellant Niyamat has also not been found guilty of harassment or treating of deceased with cruelty on account of the said allegation. The accused appellant has been convicted for the offence under Sections 304-B and 498-A Indian Penal Code on the basis that the prosecution had proved that a demand of Rs. 5,000/- or 10,000/- was made by the accused appellant and the consequent harassment and cruelty was caused to the deceased by him. Thus, confining the appreciation of evidence on this point, it may be noted that in the FIR (Ex.P 11), it has not been mentioned that the deceased, who was married to the appellant about three months back was cruelly treated and harassed for the said amount. In the FIR it has been mentioned that two days before the death of the deceased Naseem, the wife of Anwar Khan PW10 had gone to the house of the appellant and she found her daughter to be quite hale and hearty and on hearing about the death of deceased Naseem, her murder was suspected by the father Anwar Khan, who lodged the FIR. To understand the back ground, it may be noted that the accused appellants are residents of Kishangarh Town, while the father of the victim resided at Madan-Ganj, which is a twin town and any member of the either family could go to each other's house without difficulty. So it was quite natural for the mother of the victim girl PW11, Smt. Bagam, who had gone to the house of the accused appellant to enquire about the well-being of her daughter and her daughter was found to be healthy. So it was quite natural for the mother of the victim girl PW11, Smt. Bagam, who had gone to the house of the accused appellant to enquire about the well-being of her daughter and her daughter was found to be healthy. In the statement given to the Court by P W11 Smt. Bagam, PW10 Anwar and PW12 Zareena, no allegation of causing cruelty or harassment to the victim for want of amount of 5,000/- or 10,000/- was made. If there had been any ill-treatment or harassment at the part of the victim, she could have very well told about it to her mother when she went all alone to demand a sum of Rs. 5,000 or 10,000/-, few days before the incident. But no such evidence has been led. Father of the victim has also not deposed that Naseem was treated cruelly or put to harassment for demand of Rs. 5,000 or 10,000/-. PW12 Zareena is the sister of Naseem, who lived with the deceased girl in that very house and the house was of only one storey and the rooms of the brothers are separate on ground floor, did not depose a word to support the allegation that Naseem was put to any cruelty or harassment on account of demand of Rs. 5,000 or 10,000/-. None Of these witnesses have deposed that 5,000/- or 10,000/- were demanded by way of dowry or in connection with the marriage to bring it in the purview of dowry as defined in Section 2 of the Dowry Act. In this regard the learned counsel for the appellant has rightly placed reliance on the judgment of Apex Court reported in Appasaheb & Anr. v. State of Maharashtra, 2007 ACJ 290 (S.C.) : 2007 (1) CCC 555 (S.C.) : 2007 (1) Cri 110 (S.C.). wherein it has been held that a demand for money on account of some financial stringency can not be termed as a demand for dowry as the same is unconnected with the marriage. Here is the case where no such allegation has been put that amount was being demanded on account of dowry or in connection with the marriage or as to why the amount was demanded, this has not been disclosed. Here is the case where no such allegation has been put that amount was being demanded on account of dowry or in connection with the marriage or as to why the amount was demanded, this has not been disclosed. Thus, in order to prove the offence under Section 304B Indian Penal Code as indicated by the Hon'ble Apex Court in the case of Kamesh Panjiyar (supra), presumption under Section 113B of the Evidence Act for the offence under Section 304B Indian Penal Code can be pressed into service only when the prosecution has proved that for the occurrence there was cruelty or harassment. In this case, PW12 Zareena has deposed in her statement that in the evening preceding the fateful night up to 11.00 O'clock, the deceased was on the roof of her house and she was playing happily with others by participating in a quiz ('Antakshri'). She has further deposed that on the following morning, she found her dead and that husband of the victim was sleeping and she (this witness Zareena) was there in the same house in the rooms of the ground floor. This further indicates the circumstances which prevailed before the incident and there is nothing to indicate that Naseem was put to any harassment or cruelty by her husband. As regards the amount asked for by the accused appellant by going along with PW12 Zareena and then sending the deceased Naseem on the next day to ask for amount of Rs. 5,000/- or 10,000/- shows that the same was required for some financial stringency and in the circumstances of the case, it could not be related with the demand of dowry. 12. The learned Public Prosecutor has argued that the deceased victim had suspicion that her husband had illicit relation with one girl named Chand and she was not treated fairly and was put to harassment and cruelty by the accused appellant and hence the victim could have committed suicide and as such the accused should be punished under Section 306 IPC. In this regard, it may be noted that the allegation that the accused had some illicit relation with some girl named Chand is not the basis of the prosecution case as no such version has been made in the FIR lodged by the father of the girl PW10 Anwar Khan. In this regard, it may be noted that the allegation that the accused had some illicit relation with some girl named Chand is not the basis of the prosecution case as no such version has been made in the FIR lodged by the father of the girl PW10 Anwar Khan. More over, PW11 Smt. Bagam has though deposed in her statement that the accused appellant had some relation with a girl but in the cross-examination she was confronted with her police statement wherein she had failed to mention such an allegation against the present accused appellant. Thus, there remains the evidence of Zareena PW12. She says that she was told by the deceased that deceased Naseem suspected illicit relations with some girl named Chand and she was being isolated and being harassed for that by the accused appellant. This part of the statement of Zareena PW12 has not been adequately corroborated by the prosecution witnesses. The two families are residents of same place and they could go to each other's house freely. It is the prosecution case that the accused appellant along with Zareena PVV12 had come to ask for a sum of Rs. 5,000/- or 10,000/- as the case may be and then on the next day deceased Naseem came for the same, shows that there was no existing allegation of moral turpitude against the accused appellant apparently in the knowledge of the mother and father of the deceased. Had there been such an allegation against the accused appellant, the accused appellant could not have dared to come and ask for the money along with Zareena PW12 the sister-in-law. The two allegations of demand of dowry and the allegation of illicit relation of the appellant with some girl and consequent harassment and cruelty caused to the victim do not reconcile with each other in the facts and circumstances of the case to prove a case of dowry death. The presumption under Section 113-B of the Indian Evidence Act (for short the 'Act') can only be invoked when the death of such woman has been caused on account of demand of dowry. Likewise, under Section 113-A, of the Act presumption as to abetment of suicide by a married woman can only be invoked when the husband or his relative had subjected her to cruelty. Likewise, under Section 113-A, of the Act presumption as to abetment of suicide by a married woman can only be invoked when the husband or his relative had subjected her to cruelty. Thus, there being no sufficient evidence of subjecting to cruelty or harassment at the part of the appellant, the presumption in the aforesaid two sections can not be invoked. 13. In view of the above discussion and reappraisal of the evidence adduced by the prosecution, there appears to be no legal evidence on record to sustain the conviction of the accused appellant for the offence under Section 304-B and 498-A Indian Penal Code and the accused appellant deserves to be given benefit of doubt for the same. 14. For these reasons the appeal of the appellant Niyamat Khan is allowed. His conviction and sentence for the offence under Sections 304-B and 498A Indian Penal Code is set-aside. He is in custody. He is ordered to be released forthwith if not required in any other case. *******