Judgment ( 1. ) THIS criminal appeal has been preferred under Section 374 (2) of cr. P. C. being aggrieved by the judgment finding and sentence dated 25-06-1993 passed by Additional Sessions Judge Khurai in Sessions trial No. 84/92 whereby the appellant has been convicted under section 498-A of IPC and Section 3 of Dowry Prohibition Act, 1961, and sentenced to R. I. for 3 years with a fine of Rs. 5000/-in default r. I. for 6 months and R. I. for 5 years with a fine of Rs. 15,000/-in default further R. I. for 1 year respectively. Both the sentences are directed to run concurrently. ( 2. ) THE prosecution case in brief is that on 9. 10. 1990 at about 11. 00 a. m. Ghooman Kotwar of village Pyasi intimated P. S. Khurai that Anjana Rani wife of Bhairon Kurmi died by falling in a well. Marg intimation No. 56/90 was registered and enquiry made. Panchnama of her dead body was prepared. Body was sent for post mortem examination which was conducted on 10. 10. 1990 at 11. 30 a. m. Autopsy Surgeon opined her death due to asphyxia due to drowning within 3 to 48 hours from the time of examination. On 11. 10. 1990 Krishna Murari brother of deceased submitted an application before S. P. Sagar mentioning therein that his sister was married with Bhairaon prior to 6 years of occurrence. Dowry was given at the time of marriage. After 3 years of marriage, Gauna ceremony was performed in which 10 Tolas gold, 1 kg silver, 1 gold mohar and Rs. 5,000/-cash with other articles were given. After 1 year her husband started beating and causing harassment. He used to say to manage for his job through her brothers or get transferred the house of Ganj Basoda in his name or to provide Rs. 1 lac so that he can start his business at Ganj Basoda. If these things will not be done, then she will be subjected to harassment. His sister also told him that her husband used to give severe beating by filling clothes in her mouth in the night and as a result thereof sometimes she used to become unconscious. This fact was brought into notice of appellant"s father who insured not to repeat such things. Thereafter, she was sent to her in-laws house where she was residing. On 10. 10. This fact was brought into notice of appellant"s father who insured not to repeat such things. Thereafter, she was sent to her in-laws house where she was residing. On 10. 10. 1990, he came to Khurai to his in-law"s house where he came to know that his sister has died and her dead body has been cremated. No any information was given to him regarding the death of his sister. He suspected that after killing his sister by appellant dead body has been thrown into a well. After inquiry first information report Ex. P-9 was registered on 22. 3. 91 at 16. 00 at P. S. Khurai wherein Crime No. 126/91 u/s 306, 304-B and 498-A of I. P. C and 3 / 4 of Dowry Prohibition Act, 1961 was registered. The statements u/s 161 of Cr. P. C were recorded. After completing investigation, charge sheet was filed in the court of j. M. F. C. , Khurai wherein Cr. Case No. 88/92 was registered and the case was committed to Sessions Court on 25. 2. 92. ( 3. ) THE appellant was charged u/s 304-B, 306 and 498-A of I. P. C. and u/s 3 of Dowry Prohibition Act, 1961 that he on 9. 10. 1990 at village Pyasi caused dowry death of Ranjana Rani-his wife, subjected her to cruelty and harassment in connection with demand of dowry; she committed suicide by falling in a well and he abetted for commission of such suicide; that prior to this incident, he subjected her to cruelty and demanded dowry from her. ( 4. ) THE appellant abjured the guilt and claimed to be tried mainly contending that he has never demanded dowry nor harassed her since she was not conceiving the child therefore she used to remain unhappy. He is innocent and has been falsely implicated in this case. ( 5. ) THE prosecution examined as many as 7 witnesses and the defence examined only 3 witnesses. After appreciating the evidence, trial court acquitted the appellant from the charges under section 304b and 306 of IPC but convicted under section 498-A of IPC and section 3 of the Dowry Prohibition Act, 1961 and sentenced thereunder as stated in para No. 1 of the judgment. Being aggrieved by the judgment, finding and sentence, the appellant has preferred this appeal under Section 374 (2) of Cr. Being aggrieved by the judgment, finding and sentence, the appellant has preferred this appeal under Section 374 (2) of Cr. P. C. on the grounds mentioned in the memo of appeal. ( 6. ) THE learned counsel for the appellant has submitted that the trial court has not appreciated the evidence in proper perspective. All the essential ingredients to prove offence under section 498-A IPC and Section 3 of Dowry Prohibition Act have not been made out. The marriage was performed prior to 10 years back and no dowry was settled at the time of marriage. There is no evidence to prove the demand of dowry. No report was lodged regarding harassment to deceased prior to this incident. She used to remain unhappy because she was not conceiving the child. The statement of Krishna Murari and Vrindavan were recorded after 5 months. The evidence of the prosecution is not dependable. Hence no conviction can be based on such evidence. The trial Court has committed an illegality in convicting the appellant. The finding being erroneous deserves to be set aside and the appellant is entitled for acquittal. ( 7. ) ON the other hand, Shri Pankaj Dixit, P. L. , appearing for state/respondent has supported the judgment finding and sentence passed by trial court and has submitted that wife of appellant met with an unnatural death. The statements of Krishna Murari and vrindavan have been recorded immediately after recording first information report, therefore, no delay has been made in recording their statements. There is evidence of cruelty and harassment and the trial Curt has rightly convicted and sentenced the appellant therefore it does not call for any interference. ( 8. ) THE main point for consideration in this appeal is that whether the trial court has committed any illegality in convicting and sentencing the appellant under Section 498a IPC and section 3 of dowry Prohibition Act, 1961. ( 9. ) I have perused the entire case and the evidence recorded therein. ( 10. ) THERE are several names of deceased such as Ranjanarani, anjanarani, Raju, Raj Kumar and Raj Kumari. Therefore, she will be referred to in the judgment as deceased Ranjana. ( 11. ) GHOOMAN (PW-1) Kotwar of village Pyasi intimated on 9. 10. 1990 at P. S. Khurai regarding death of Ranjana by falling in a well. Marg intimation (Ex. P-1) was recorded by M. P. Rajoriya (PW-6 ). Therefore, she will be referred to in the judgment as deceased Ranjana. ( 11. ) GHOOMAN (PW-1) Kotwar of village Pyasi intimated on 9. 10. 1990 at P. S. Khurai regarding death of Ranjana by falling in a well. Marg intimation (Ex. P-1) was recorded by M. P. Rajoriya (PW-6 ). He prepared Panchnama of dead body (Ex. P-2) and sent her dead body for post mortem examination vide Ex. P/5. Dr. Sunil kumar Pandya (PW-3) conducted post mortem examination and found her death due to asphyxia due to drowning in well within 3 to 48 hours of examination. He submitted post mortem report (Ex. P-6 ). From the evidence adduced in this behalf it is established that ranjana died by falling in a well. Thus, she has met with an unnatural death in her matrimonial house. Lalaram Shakya (PW-7) has clearly stated that well is quite visible and there is no possibility to fall accidentally. Therefore, her death cannot be regarded as an accidental. ( 12. ) NO doubt, she was married with the appellant prior to 7 years, therefore, the presumption under section 113-A and 113-B have not been attracted and the trial Court has given its benefit to the appellant by acquitting him from the charges under section 304-B and 306 of IPC. ( 13. ) THE main point for consideration is that whether she was subjected to cruelty by her husband during her life time? ( 14. ) KRISHNA Murari (PW-5) is the brother of deceased who has stated that the marriage of deceased was performed in the year 1982 and Gauna ceremony was performed after 3 years. 10 Tolas gold, 1 kg silver, cash of Rs. 5000/-were given in this ceremony. When she returned from her in-laws house after 1 year she looked very lean and thin. He asked the reason, she stated that appellant used to beat her by saying that he is literate therefore manage for his job through her brothers or to get sale deed executed of the house situated at Ganj basoda in his name and also to provide Rs. 1 lakh otherwise he will keep her in this condition. She also apprised him that he used to beat her in night after filling clothes in her mouth thereby she used to become unconscious. 1 lakh otherwise he will keep her in this condition. She also apprised him that he used to beat her in night after filling clothes in her mouth thereby she used to become unconscious. On this he stated not to send her to her matrimonial house but she wanted to go there therefore when her father-in-law came there to bring her back in matrimonial house, he was apprised about this fact who assured that there will not be any trouble. Therefore, he sent her sister in the month of Asadh and she expired in the month of Kartik. No intimation regarding death of his sister was given by appellant or his family members. He came to know about her death at Khurai when he came to his in-laws house. Then he submitted an application Ex. P-7 to S. P. Sagar. ( 15. ) IN cross-examination, he has admitted that this fact is not mentioned in Ex. P/7 that he prevented his sister not to go in in-laws house because she is harassed there. He has denied the suggestive questions put to him that no demand for dowry was made or her sister was not harassed. ( 16. ) VRINDAWAN (PW-4) is also brother of deceased. He has corroborated the statement of his brother Krishna Murari (PW-5)mainly contending that appellant used to harass his sister saying that she should secure his job through her brothers, manage to get sale deed of the house at Ganj Basoda registered in his name and provide rs. 1 lakh for him. He has also stated that appellant used to beat her sister by filling clothes in her mouth. The report was not made to avoid further harassment. Though dowry was not settled but the same was given according to the capacity. At the time of Gauna ceremony 10 tolas gold, 1 kg silver and Rs. 5,000/-were given. ( 17. ) IN cross-examination, this witness has stated that he tried to secure job but could not. He admitted that appellant is well-to-do person. He looks after the agricultural land of his father. Regarding harassment he has deposed that prior to 6-7 months of this incident his sister told him that her husband used to harass her. Prior to 4-5 months of this incident, his brother Krishna Murari had gone to bring her sister but appellant did not send her. He looks after the agricultural land of his father. Regarding harassment he has deposed that prior to 6-7 months of this incident his sister told him that her husband used to harass her. Prior to 4-5 months of this incident, his brother Krishna Murari had gone to bring her sister but appellant did not send her. However, he has admitted that he did not receive any information from her sister that she is in trouble. He has also stated that no information regarding death of his sister was sent by appellant or his family members. Some contradictions and omissions have been brought from his police statement Ex. D-2. Omission is regarding causing Marpeet by appellant after filing the clothes in the mouth of his sister and contradiction is that his sister did not tell him that appellant used to harass her because she was not conceiving child. ( 18. ) EVIDENCE of both brothers of deceased is similar on the same point that Gauna ceremony was performed after 3 years of marriage. Cash and ornaments were given in dowry at Gauna ceremony. After returning from her in-laws house she apprised them regarding harassment and causing of marpeet by her husband for securing the job for him or to get registered the sale deed of the house at Ganj basoda in his name and to provide him Rs. 1 lakh for him. The report regarding harassment was not lodged prior to this incident to avoid further harassment, humiliation and torture to be given to his sister. Inspite of some contradictions and omissions, their evidence is not shattered on material point hence can be relied upon. ( 19. ) THE appellant has also adduced evidence to show that no harassment was done to his wife deceased Ranjana. Bala Prasasd (DW-1), Suraj Singh (DW-2), has given the evidence in this regard. Hanumat Singh (DW-3) has also given some evidence in this regard. However, their evidence is not acceptable merely because Ranjana was not under any obligation to apprise them regarding her miseries and troubles. Had she been done so, the appellant would have subjected her to further harassment and trouble. Therefore their evidence is not acceptable and the trial Court has rightly discarded their evidence. ( 20. However, their evidence is not acceptable merely because Ranjana was not under any obligation to apprise them regarding her miseries and troubles. Had she been done so, the appellant would have subjected her to further harassment and trouble. Therefore their evidence is not acceptable and the trial Court has rightly discarded their evidence. ( 20. ) THE learned counsel for the appellant has submitted that all the ingredients required to prove the offence under section 498-A of IPC has not been proved. He has placed reliance on the following decisions: (1) Balbir Singh v. State of Punjab I-1987 (1) Crimes 76-In this case, it has been held that it is not all and every type of cruelty by husband or his relatives which is sought to be covered by Section 498-A. On the other hand, the scope of the section has been limited to the particular type of cruelty referred in the two sub-clauses of the Explanation. (2) Smt. Sarla Prabhakar Waghmare v. State of Maharashtra 1990 Crlj 407 . In this case, it has been held that it is not every harassment or every type of cruelty that would attract section 498-A-It must be established that beating and harassment was with a view to force wife to commit suicide or to fulfill illegal demands of husband and in-laws. (3) Darshan Kumar and Ors. V. State of Haryana-I- (1992)DMC 127. In this case, it has been held that though it was found that relation between the husband and wife were not cordial but the allegation regarding the demand of dowry were never established and were found to be false on inquiry. (4) Prakash Vs. State of Maharashtra "ii (2006) DMC 240. In this case, it has been held the offence punishable U/s 498a of IPC can be made out after it is proved that woman was driven to commit suicide on account of ill treatment and unlawful demand of dowry. (5) Pandurang Vs. State of Maharashtra-II (2006) DMC 747. In this case it has been held that in absence of evidence to show prior to death, she was subjected to never ill treatment to provoke her to commit suicide, it is not possible to hold that the appellant had awaited commission of suicide or instigated by the victim by his ill treatment to end her life. (6) Tapan Pal Vs State of West Bengal "1992 Cr. L. J. 1017. (6) Tapan Pal Vs State of West Bengal "1992 Cr. L. J. 1017. In this case it has been held that there is no cogent legal evidence in support of the charge U/s 498a and the prosecution has hopelessly failed to prove the same. The order of the conviction as recorded by the court below is based mainly on conjectures, surmises and inadmissible evidence. The evidence adduced by the prosecution consists mainly of the alleged statement made by the deceased regarding her torture by the appellants when she visited her father house on some occasions. (7) Annapurna Bai @ Bhuri Vs. State of MP-1999 (2)1985. In this case it has been held that simply reminding for ornaments or traditional did not amount to demand of dowry. Offence U/s 498a must be beyond shadow of doubt. (8) Nawal Kishore Vs State of MP 1999- (1) MPLJ 167. In this case it has been held that vague and general statement can not be relied upon to draw inference of cruelty to the deceased. (9) Ramesh Kumar Radheshyam Agrawal Vs. State of MP 1999 (1) MPLJ 423 -In this case, it has been held that "letters written by deceased did not remotely hint of discontent in matrimonial home and did not suggest any complaint against in-laws.-Prosecution evidence regarding demand of dowry or harassment and cruelty meted out to deceased suffered from basic infirmities and discrepancies in connection with said demand-Finding of guilt recorded by trial Court ignoring vital aspects of prosecution not justified. (10) Sunil Bajaj v. State of M. P. , AIR 2001 SC 3020 , in this case demand of dowry and subjecting deceased to cruelty was not found proved. ( 21. ) THE provision of section 498-A of IPC runs as follows: "whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. ( 21. ) THE provision of section 498-A of IPC runs as follows: "whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. " explanation.- For the purpose of this section, "cruelty" means (a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security is on account of failure by her or any person related to her to meet such demand. " ( 22. ) SO far as present case is concerned, both the brothers of deceased have adduced evidence that the appellant used to harass their sister and caused Marpeet for securing his job through her brothers, to get the sale deed of the house at Ganj Basoda executed in his name and provide Rs. 1 lakh so that he can start some business. Since none of the demands was fulfilled, therefore, the harassment continued. What has happened on the day of incident, has not been brought on record from any side but that thing must be within the knowledge of the husband and wife. Wife has already expired without saying anything but husband did not disclose the fact but it is admitted position that his wife met with an unnatural death in her matrimonial house. The reason that she was not conceiving child and therefore she was unhappy and dissatisfied, cannot be accepted the cause of her death because this was not a proximate situation but persistent one and the evidence has been brought on record that she was not unhappy on account of this reason. She met with an unnatural death is within the knowledge of the appellant. No woman will end her life without intolerable miseries, troubles, tortures and harassments. No evidence has been adduced as to what steps were taken by the appellant after death of his wife in the well whether some search was made or the matter was reported to the concerned authorities. No woman will end her life without intolerable miseries, troubles, tortures and harassments. No evidence has been adduced as to what steps were taken by the appellant after death of his wife in the well whether some search was made or the matter was reported to the concerned authorities. Even the brothers of deceased have given the evidence that no information about death of their sister was given to them. Therefore, the conduct of the appellant prima facie does not appear to be bonafide. No doubt, it is true that no report was made regarding the harassment to deceased during her life time but there is an evidence that the report was not made to avoid further harassment, torture, humiliation and beating moreover her father-in-law was apprised about this fact who assured not to repeat such things in future. ( 23. ) LEARNED counsel for the appellant has submitted that evidence of Krishna Murari and Vrindavan has been recorded after 5 months. Therefore, the reliance should not be placed on their evidence. But the factual situation is that Krishasn Murari submitted an application ex. P-7 on the 3rd day of the incident narrating the entire facts regarding harassment of his sister but the police registered crime on 22. 3. 1991 i. e. near about 5 months after the incident. The statements of witnesses have been recorded on the same day, therefore, after recording FIR no delay has been caused in recording the statements of these witnesses under section 161 Cr. P. C. For lethargic attitude of l. R. Shakya (PW-7) S. D. O. P. Khurai in not registering the case in spite of submission of application by Krishna Murari, the fault cannot be found with the evidence of brothers of deceased Ranjana. Therefore, there is no question to disbelieve the statements of these witnesses. ( 24. ) THIS fact has been brought on record that appellant is a prosperous and well-to-do person. There is 100 acres of agricultural land of his father. There is a tractor, one motorcycle and appellant himself looks after the agricultural operations, therefore, there was no need to demand the property and cash from the brothers of the deceased. But this may not be the criteria because the greedy people are never satisfied with the wealth. However, he wanted not only cash, landed property but also the position of securing the Govt. job. But this may not be the criteria because the greedy people are never satisfied with the wealth. However, he wanted not only cash, landed property but also the position of securing the Govt. job. Though it was a different matter whether her brothers were in a position to secure such job for him or not, but actually he wanted these things to be done by or through her brothers. ( 25. ) THERE is ample evidence regarding harassment and unlawful demand of property by appellant from the deceased. Therefore the cited cases are distinguishable on the facts and circumstances of this case. All ingredients required to prove the offence under section 498 a of the IPC have been established by prosecution and the trial Court has not committed any illegality in holding him guilty under section 498-A of the IPC. Such finding being based on evidence is hereby affirmed. ( 26. ) NOW the point for consideration is that whether offence under section 3 of Dowry Prohibition Act, 1961 has been proved or not? ( 27. ) SECTION 3 of Dowry Prohibition Act runs as follows:" (1) If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable [with imprisonment for a term which shall not be less than [five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more. " provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than [five years], [ (2) Nothing in sub-section (1) shall apply to, or in relation to, (a) Presents, which are given at the time of a marriage to the bride (without any demand having in that behalf): provided that such presents are entered in a list maintained in accordance with the rules made under this Act; (b) Presents, which are given at the time of a marriage to the bridegroom (without any demand having been made in that behalf): provided that such presents are entered in a list maintained in accordance with the rules made under this Act: provided further that where such presents are made by or on behalf of the bride or any person related to the bride, such presents are of a customary nature and the value thereof is no excessive having regard to the financial status of the person by whom, or on whose behalf, such presents are given]. " ( 28. ) IN the case of Arjun Dhondiba Kamble v. State of Maharashtra, 1995 AIHC 273, it has been held that "dowry" in the sense of the expression contemplated by Dowry Prohibition Act is a demand for property of valuable security having an inextricable nexus with the marriage, i. e. , it is a consideration from the side of the bride"s parents or relatives to the groom or his parents and /or guardian of the agreement to wed the bride-to-be. But where the demand for property or valuable security has no connection with the consideration for the marriage, it will not amount to a demand for dowry. ( 29. ) IN Satvir Singh v. State of Punjab, AIR 2001 SC 2828 ,it has been held that the word "dowry" should be any property or valuable given or agreed to be given in connection with the marriage. The customary payments in connection with birth of child or other ceremonies are not involved within ambit of dowry. ( 30. ) IN Nirdosh Kumar v. Padma Rani, 1984 ( 2) Rec Cr. R. 239, it has been held that where the demand was made after the marriage for the purchase of a car, it was held that it did not fall within the definition. ( 31. ( 30. ) IN Nirdosh Kumar v. Padma Rani, 1984 ( 2) Rec Cr. R. 239, it has been held that where the demand was made after the marriage for the purchase of a car, it was held that it did not fall within the definition. ( 31. ) SO far as the present case is concerned, the evidence has been brought on record that dowry was not settled, therefore, the question of abetment of giving dowry does not arise. Hence all the essential ingredients required to prove the offence under section 3 of the Dowry prohibition Act, 1961 have not been established. Hence finding of the trial Court regarding guilt of appellant under section 3 of Dowry prohibition Act is erroneous which deserves to be set aside. ( 32. ) THE result of the foregoing discussion is that the conviction of the appellant under section 498-A of the IPC is maintained whereas conviction under section 3 of the Dowry Prohibition Act, 1961 is set aside. ( 33. ) LEARNED Counsel for the appellant has submitted that the incident is of 1990, therefore it will not serve any purpose to send appellant back to jail. The contention of the learned counsel is not acceptable because on account of cruelty committed by appellant ranjana had to end her life. In such cases no leniency is required. Therefore, no interference in sentence passed by the trial Court is called for. ( 34. ) ON the foregoing discussion, this appeal deserved to be partly allowed. ( 35. ) CONSEQUENTLY, the appeal succeeds and is partly allowed. The conviction and sentence passed under section 3 of the Dowry prohibition Act, 1961 is hereby set aside. The conviction and sentence passed under section 498-A of IPC is hereby maintained. The appellant is on bail. His bail bonds are cancelled. He be directed to surrender before CJM Sagar on 31. 01. 2008 to serve out the remaining part of the sentence.