JUDGMENT 1. This criminal appeal has been preferred by the three appellants, Ram Beti, Rakesh and Santosh, out of accused persons who were collectively tried by the Sessions Court, Lahar in Sessions Trial No.312/ 2000 under sections498A and 304B of the Indian Penal Code and after concluding the trial the Additional Sessions Judge, Lahar has found the present appellants guilty of commission of offence under section 498A, but has acquitted all of the accused from the charge of section 304B, however, the present appellants have been convicted under section 306 of the Indian Penal Code and the accused Dilasa Ram has been acquitted from all the charges. The present appellants have been convicted and awarded sentence of rigorous imprisonment for a term of one year with fine of Rs.1,000/- each under section 498A IPC and three years sentence with fine of Rs.1,000/- under section 306 IPC. 2. The prosecution story demonstrate that one Abhilasha daughter of Santoshi Lal Tyagi was married with accused Rakesh and after one year from the date of marriage, she was taken to her matrimonial home where the family members started demanding dowry of Rs.25,000/- and one Scooter for accused Rakesh. This demand was made in front of the brother Dinesh Tyagi, who narrated entire story to his father Santoshi Lal Tyagi, but since they were not financially sound enough to meet the demand of the family members of accused Rakesh therefore Abhilasha was subjected to cruel behavior, harassment and neglect with the added punishment of not allowing her to go and meet her father and mother, which ultimately compelled Abhilasha to commit suicide by drowning in a well. 3. It is the case of the prosecution that in the evening hours on date 11/12.5.1998 one Agya Ram resident of village Aswar (who happens to be maternal cousin of the complainant) came from village Aswar to the village Kanathar and informed complainant Satya Prakash Tyagi that her sister Abhilasha is missing from her matrimonial home. The complainant immediately rushed to village Kanathar and searched for the whereabouts of her sister but could find her dead body in the well on date 12.5.1998, where after he lodged a written complaint with the police station by expressing suspicion about the husband Rakesh and the entire family members that they must have killed Abhilasha and must have thrown her dead body into the well, due to demand of dowry. 4. The Station House Officer Aswar initially registered a merg on the basis of receiving the intimation of the death of Abhilasha and prepared a spot map and naksha Panchayat Nama of the dead body and soon thereafter the dead body of Abhilasha was sent for post-mortem examination. The record of the Court below reveals that the Investigating Officer had found during the course of the inquiry that no offence was made out and as such he submitted a final report (Khatma) but when the complainant contacted the Director General of Police with the grievance about the biased attitude of investigation agency, only thereafter the FIR was registered on date 3.6.1999 and the statements of the prosecution witnesses were recorded and the investigation proceeded. 5. Upon committal of the case to the Court of Sessions, the Additional Sessions Judge had framed charges against the present appellants as also against Dilasa Ram under sections 498N34 and 304B/34 of IPC and proceeded with the trial by examining as many as 14 prosecution witnesses and one defence witness and after examining the accused persons under section 313 CrPC, the judgment of conviction was passed against the present appellant, however, accused Dilasa Ram was completely acquitted from all the charges. 6. The trial Court had found that on account of paucity of evidence about the death being caused in relation to the demand of dowry, the charge framed under section 304B/34 of the IPC is not made out and a clear finding was recorded by acquitting the accused persons from the charge of section 304B IPC, however, the trial Court has convicted the present appellant under section 306 IPC, without treating the entire evidence to be sufficient to record order of conviction under section 304B IPC, without framing a substantive charge under section 306 IPC. 7. The trial Court did not record any reasons as to whether section 306 happens to be a minor offence/charge of the major offence prescribed under section 304B of IPC or as an alternative charge of section 304B and the Sessions Court has ordered for imposing sentence of rigorous imprisonment of one year each and a fine of Rs.1,000/- against the present appellants under section 498A of IPC and a sentence of three years rigorous imprisonment with fine of Rs.1,000/-, on each of the appellants while convicting them under section 306 IPC. Therefore, the present appellant have preferred this criminal appeal against the findings and sentence of the Sessions Court. 8. Shri v.K. Saxena, learned senior counsel appearing for the appellants has first of all attacked on the defect in the finding of the trial Court by highlighting that the charges were framed only under section 498A/34 and 304B/34 IPC and no substantive charge was at all framed in terms of either section 302 or section 306 of the IPC and since section 306 is not a minor offence of section 304B nor is an alternative charge, therefore, the conviction so ordered under section 306 IPC is completely illegal and contrary to the known criminal jurisprudence. He has emphatically submitted that even a perusal of the charge framed in relation to sections 498A/34 and 304B/34 nowhere takes into its sweep the elements of abetment in any manner and as such unless a charge· of committing abetment to commit suicide, in relation to the demand of dowry is framed, the Sessions Court could not have ordered conviction under section 306 IPC. 9. The counsel for the appellant has read out the entire evidence brought on record in the statements of PW 1 Baikunthi Bai and PW2 Santoshi Lal (mother and father of deceased Abhilasha) as also the statements of PW3 Satish Tyagi, PW4 Agya Ram, and PW5 Dinesh Tyagi to demonstrate that the only circumstance brought on record is the story about not sending her to her parent's home frequently, by the family members of the in-laws of the deceased Abhilasha and since Abhilasha was not sent to her parents for a long duration, it could not be said that this was the cause or motive of abetment or provocation, leading to the death of Smt. Abhilasha and since the law requires that the abetment of death should be proximate enough and not a prolonged one, it could not be treated to be even a proximate cause that on account of not sending her to her parent's home, the appellants were either playing cruelty or were investigating/abating her to commit suicide. 10. 10. Shri Saxena, learned senior counsel has stressed on the proximity and the justifiability of the reasons with the cause of death by submitting that non-sending of the deceased to her parent's home would not amount to abetment to commit suicide, more particularly in the background of a finding recorded by the Session Court that the prosecution has completely failed to establish beyond reasonable doubt that there was any demand of dowry, made on behalf of the appellants. He submits that since the factum of demand of dowry could not be proved by the prosecution, therefore, alone the charge was not found to have been made out in terms of section 304B of the IPC and as such the entire narration of the witnesses of the prosecution needs to be examined/analysed with great care. He further submits that since the deceased was prevented or restrained from visiting her parents frequently and even she was not permitted to go with her own brothers, in the entire span of one year, it could not be treated to be a proximate cause of her death nor it could have resulted in sudden provocation, having immediate nexus with the event of abetment of her death due to suicide. 11. To strengthen his arguments Shri VK. Saxena has drawn my attention to a judgment of the Supreme. Court reported as 1995 Supreme Court Cases (Criminal) 1157 Mahendra Singh and another Gyatribai v. State of M.P., wherein the Supreme Court has held that the elements of section 306 IPC on being tested at the anvil of section 107 would require that the abetment should be proximate to the cause of death and the prosecution must prove and connect the immediate nexus with the event of death. 12. Shri Saxena has further relied upon a judgment of the Supreme Court reported as (2007)3 Supreme Court Cases (Criminal) 701 Kishori Lai v. State of M.P., wherein the Court has ruled that the allegations of abetment must have a direct connection with the event of death, without which it could not be said that the cause was so proximate to the death of the deceased. Shri Saxena has relied upon yet another judgment of the Supreme Court reported as (2004)3 SCC (Cri.) 129, wherein a similar view about the immediate nexus with the cause of death has been found to be vital for recording conviction of an accused. 13. Shri Saxena has relied upon yet another judgment of the Supreme Court reported as (2004)3 SCC (Cri.) 129, wherein a similar view about the immediate nexus with the cause of death has been found to be vital for recording conviction of an accused. 13. Shri VK. Saxena, learned senior counsel has argued that since no specific question regarding abatment to commit suicide (in terms of section 306 IPC) has ever been put to the accused persons, who were charged with the offences punishable under sections 498N34 and 304B/34 IPC and no specific question was put to the accused persons, while recording their statements under section 313 CrPC, either about the cruelty being played or demand of dowry being made, with a view to instigate/abet the lady to commit suicide, therefore, even on account of a defect or omission in the framing of the charge, the accused could not be convicted in relation to the charge under section 306 of the IPC. For strengthening his submissions he has placed reliance on a judgment of the Supreme Court, reported as (2009)2 SCC (Cri.) 881 Rameshbhai Chandubhai Rathod v. State of Gujarat, wherein the Court has found that no question was put to the accused persons about the nature of charge, for which he was convicted, therefore, it would be in violation to the established Principles of Criminal Jurisprudence, warranting acquittal of accused from the charge. 14. While addressing to the correctness of the charge framed under section 498A IPC Shri Saxena submits that the prosecution has miserably failed to bring on record and to prove instances of cruelty being played upon deceased Abhilasha and when no instance of beating or harassment, made with a view to secure fulfillment of the demand of dowry, has been proved by the prosecution, it could not be said that the basic elements required for bringing the charge home were fulfilled. He further argued that even if the entire actions of the accused persons would constitute mental cruelty on a technical foundation, this Court would be required to examine as to what were the constituents of mental cruelty and how it was persisting continuously, in the mind of deceased and in absence of such an evidence it would be difficult to even presume hypothetically as to what was that mental cruelty, which compelled or abetted the lady to commit suicide. Shri Saxena has cited judgment of the Supreme Court reported as 2007(2) Criminal Appeals Reporter (Supreme Court) 605 Bhagwan Das v. Kartar Singh and others, to demonstrate that the day to day dispute of husband and wife or existence of disharmony between the couple, in absence of evidence of demand of dowry, could not be treated to be even mental cruelty and since none of the prosecution witnesses including mother of the deceased PWI Baikunthi Bai and father PW2 Santoshi Lal have ever raised their grievance about the demand of dowry being made during the life time of Smt. Abhilasha and more particularly when no authority was approached either through a police complaint or otherwise, it cannot even be presumed that there was a demand of dowry which could constitute the elements of mental cruelty. 15. Shri R.D. Agarwal, learned Panel Lawyer has argued with great emphasis that after the incorporation of section 113A through the Amendment in the Indian Evidence Act, it becomes the duty of the accused persons to explain the cause of death, as the marriage of Rakesh and Abhilasha had taken place only three years before the death of Abhilasha and the entire burden was upon the accused persons to explain about the circumstances in which Abhilasha had died. He has placed reliance on the judgment of the Supreme Court reported as (2007)3 SCC (Cri.) 689, Nadimuthu and others v. State represented by the Inspector of Police, to demonstrate that the burden would shift upon the accused persons to clarify and to prove the circumstances in which the lady died and since the present appellant have made no efforts of either proving or disproving the facts surfacing against them, in the entire prosecution evidence, the ·Sessions Court was justified in convicting the appellant under section 498A and 306 of the IPC. 16. Shri Agarwal, learned Panel Lawyer also relied upon a judgment of this Court reported as 2006(2) MPLJ 527 , lanki Bai v. State of M.P., wherein some what similar allegations about not allowing the deceased/wife to meet her parents, it was treated to be sufficient evidence about the element of cruelty and was found to be sufficient enough to presume abetment to commit suicide. 17. 17. Shri R.D. Agarwal has read over several paragraphs of the statements of PWI Baikunthi Bai (mother of deceased) PW2 Santoshi Lal (father of deceased), PW3 Satya Prakash Tyagi, PW4 Agya Ram and PW5 Dinesh Tyagi (brothers of the deceased) to demonstrate that the fact of demand of dowry was narrated in front ofPW5 Dinesh Tyagi who has also deposed that his sister Abhilasha has also told him that in case the demand of dowry is not met, the accused persons had threatened her to kill one day. Shri Agarwal had stressed very heavily upon the statements of PW3 Satya Prakash Tyagi and PW5 Dinesh Tyagi (real brothers of deceased) for reaching a conclusion that the demand for dowry of Rs.25,000/ and a Scooter were properly established by the prosecution and since the family members of the complainant were not in a position to meet the dowry demand, it resulted in cruelty being continuously placed upon Abhilasha, which ultimately resulted in her death due to instant instigation/abetment of the accused persons. 18. Shri Agarwal further argued that PW5 Dinesh Tyagi and PW5 Agya Ram have contirmed the prosecution story that there was a clear demand for dowry and deceased Abhilasha had told them that on account of non-fulfillment of the demand of dowry, family members of her husband have almost penalized her by not allowing her to go to her parents home and that has constituted not only the element of continuous cruelty but was sufficient enough to connect the accused with the commission of the crime. 19. Shri Agarwal has read over all such passages from the testimony of the witnesses where there was a narration of the biased involvement of a Town Inspector, who had carelessly investigated the entire matter and had lodged the final report (Khatma), on account of which the investigation could not be carried out timely and by referring to the chequered history of the investigation. Shri Agarwal has submitted that minor lapses and delay in recording of the statements of the witnesses would not constitute circumstance adverse to the prosecution, as subsequently the offence was registered and enquired into by an unbiased police officer and sufficient evidence was collected and brought on record for bringing the charge home. Shri Agarwal has submitted that minor lapses and delay in recording of the statements of the witnesses would not constitute circumstance adverse to the prosecution, as subsequently the offence was registered and enquired into by an unbiased police officer and sufficient evidence was collected and brought on record for bringing the charge home. He further submits that in the peculiar facts and circumstances of this case none of the accused persons are entitled for getting any benefit of the lapses, lacuna or delay attributable to the prosecution agency, as the entire burden to explain the circumstances, leading to the death of Smt. Abhilasha, was on the accused persons in terms of the sections 113A and 114 of the Indian Evidence Act and since the accused persons have failed to discharge that burden, no interference is required. 20. Shri R.D. Agarwal has very enthusiastically argued that elements constituting an offence punishable under section 304B and the elements constituting a charge under section 306 of the IPC are almost identical and a Sessions Court would be competent to convict an accused person for an offence punishable under section 306 IPC, without framing an independent charge, even when the Court had completely exonerated and acquitted the accused persons from the charges of section 304B of the IPC. Shri Agarwal could not substantiate his submission with the assistance of any judgment of the Supreme Court and further could not demonstrate as to whether an offence punishable under section 306 IPC would be either a minor charge/offence ot}section 304B or could be an alternative charge of section 304B IPC. 21. A perusal of the charge framed by the Additional Sessions Judge, Lahar in Session Trial No.312/2000 reveals that upon finding the elements of section 498A and section 304B/34 of IPC, the trial Court has framed the charges against the accused persons and only thereafter the trial had commenced against the accused persons in terms of sections 498N34 and 304B/34 IPC. A perusal of the charge framed by the Additional Sessions Judge, Lahar in Session Trial No.312/2000 reveals that upon finding the elements of section 498A and section 304B/34 of IPC, the trial Court has framed the charges against the accused persons and only thereafter the trial had commenced against the accused persons in terms of sections 498N34 and 304B/34 IPC. Since a serious argument about the lacuna in the charge and a defect in the conclusion recorded by the Sessions Court about a new charge has been stressed, therefore both the charges, as framed by the Court below are quoted herein below: Þigyk % ;g fd fnukad 10 ,oa 11 ebZ 1998 dks njE;kuh jkr eas dkfN;ksa dk iqjk xzke vlokj esa rqeus Jhejrh vfHkyk'kk iRuh jkds"k ds lkFk lkeU; vk"k; crk;k vkSj mlds vxzrkFkZ rqeus ngsst iwfeZ ds fy, ifr@ifr ds fj"rsnkj gksrs gq, Øwjrk dk O;ogkj fd;k rFkk mls izrkfM+r fd;kA bl izdkj rqeus /kkjk 498,@34 Hkkjrh; naM fo/kku ds v/khu naMuh; vijk/k fd;k tks bl U;k;ky; ds laKku ds varxZr gSA nwljk % ;g fd fnukad 10 ,oa 11 ebZ 1998 dks njE;kuh jkr esa dkfN;ksa dk iqjk xzke vlokj esa rqeus Jhekhr vfHkyk'kk ftldk fookg vfHk;qDr jkds"k ds lkFk lkr o'kZ dh vof/k ds vanj gqvk Fkk] dks ngst gR;k dk lkekU; vk"k; cuk;k vkSj mlds vxzrkFkZ mldh ngst dkfjr dhA bl izdkj rqeus /kkjk 304ch@34 Hkkjrh; naM fo/kku ds v/khu naMuh; vijk/k fd;k tks bl U;k;ky; ds laKku ds varxZr gSA vkSj eSa blds }kjk funsZ"k nsrk g¡w fd rqEgkjs fo#) mDr vkjksiksa dk fopkj.k bl U;k;ky; }kjk fd;k tkosAß 22. The Legislature has categorically provided for the specific offence punishable in terms of section 498A and 304B of the IPC and accordingly independent provisions have been made and an offence of abetment leading to the death of a person has been separately provided in section 306 IPC, therefore, for ready reference section 498A, 304B and 306 IPC are quoted here in below, for evaluating and appreciating the scope and sweep of the provision. . "498A. Husband or relative of husband of a woman subjecting her to cruelty.-- 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. . "498A. Husband or relative of husband of a woman subjecting her to cruelty.-- 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 or is on account of failure by her or any person related to her to meet such demand. 304B. Dowry death-- (1) Where the death of a woman is caused by any bums or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death" and such husband or relative shall be deemed to have caused her death. Explanation: For the purpose of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life. 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." 23. 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." 23. The basic elements or the constituents of section 304B and section 306 IPC appears to be certainly leading to the event of the death of a persons/woman but the language used by the Legislature in section 304B revolves around the cause of death, being exclusively relatable to the demand of dowry or a death caused in relation to the specified categories and cruelty enshrined in section 304B, whereas section 306 IPC provides for causing death mainly due to abetment, which no specific constituent and since section 306 IPC to a great extent is based upon the elements, provided in section 107 of the IPC wherein much stress has been given to the close proximity of the instigation/abetment, with the cause of the death therefore the Legislative intendment appears to be specific about making distinct provision for the two different exigencies as contained in section 304B and section 306 IPC. Therefore, it would be difficult to presume that section 306 would either be a minor offence of section 304B or a charge initially framed under section 304B could be couched as an alternative charge, that too at the time of pronouncing the judgment (without trying the case) under section 306 IPC. Therefore, I find force in the submissions of the learned counsel for the appellant that the learned trial Court has committed serious illegality in convicting the appellants under section 306 of the IPC, more so when the accused persons have been acquitted from the charge of section 304B IPC, where after it could not be even argued that the trial Court has treated section 306 IPC to be a minor ofence or an alternative offence of section 304B IPC, as the Court his primarily or rather exclusively convicted the appellants under section 306 of the IPC, without caring to examine as to whether a substantive charge under section 306 was imposed/framed or not. Therefore, the order of conviction and sentence passed against the three appellants under section 306 IPC is set aside. 24. Therefore, the order of conviction and sentence passed against the three appellants under section 306 IPC is set aside. 24. The elements required for constituting an offence under section 498A IPC is the reliable and trustworthy evidence regarding cruelty and harassment being played against the married women by the husband or his family members and a perusal of the statements of PW 1 Baikunti Bai (mother), PW2 Santoshi Lal (father), PW3 Satya Prakash Tyagi and PW4 Dinesh Tyagi (brothers) conclusively demonstrate that soon after the Bidai of Smt. Abhilasha to her husband's house, a specific dowry demand of Rs.25,000/- and a Scooter was made and the same was persisted upon by the husband and his family membners and even the deceased Abhilalsha had complained to her brother' PW5 Dinesh Tyagi that in the event of non-fulfillment of the demand of dowry the appellants have threatened her to kill. The narration of this fact, as contained in para 3 of the testimony of PW5 Dinesh Tyagi confirms the story of prosecution that the behaviour of the accused persons turned cruel towards Abhilasha soon after the raising of the alleged demand of dowry. Therefore Shri R.D. Agarwal, Panel Lawyer is absolutely right in pointing out that even when the Sessions Court has acquitted the accused persons from the charge of section 304B by not finding it to be dowry death, but the entire evidence brought on record conclusively demonstrate that there was a specific demand of dowry, due to which Smt. Abhilasha. was not permitted to visit her parents, uptil fulfillment the demand. He further appears to be correct in his submissions that for constituting the elements of mental cruelty this Court has to simply gather from the testimoney of the prosecution witnesses as to whether there was an unlawful demand and/or specific instances of cruelty and whether the accused persons had persisted that demand to coerce and harass the woman with a view to create an atmosphere for driving the woman to commit suicide. 25. 25. The prosecution evidence reveals that the mother and father of deceased Abhilasha have categorically stated in their statements, (initially recorded under section 161 CrPC and have reiterated in their statements recorded by the Sessions Court) that soon after the Bidai of their daughter a demand for the payment of Rs.25,000/- and a Scooter was raised emphatically on behalf of the accused persons which had caused great stress on the psyche of their daughter Abhilasha and that was sufficient enough to constitute the element of cruelty. Therefore, even when no evidence has been brought on record to demonstrate instances or illustration of physical abuses or injuries, caused on the person of the deceased, during her stay at the matrimonial home, it can be very well gathered from the evidence brought on record in the statements of the prosecution witnesses that the lady was subjected to specific mental cruelty, which was sufficient enough to attract the provisions of section 498A IPC. Therefore, I find no illegality in the judgment of the Sessions Court in relation to its finding about the conviction being ordered in terms of section 498N34 IPC and as such the conviction and sentence of one year rigorous imprisonment and fine awarded to the three appellants under section 498N34 IPC is maintained and hereby confirmed. 26. Therefore, this criminal appeal is partly allowed. The judgment of the Sessions Court and the finding given about section 498A IPC, whereby the Sessions Court has convicted the present appellants under section 498N34 IPC with a rigorous imprisonment of one year each with a: fine Rs.l,000/- each, as also the direction about the consequence of nonpayment of the amount of fine is affirmed, however the judgment of conviction recorded under section 306 IPC against each of the appellant is set aside on the ground that no specific charge was framed under section 306 IPC before commencing with the trial of the case and since section 306 is neither a minor offence nor an alternative offence of section 304B IPC no order of conviction could be recorded at the stage of writing the judgment by the trial Court. . 27. . 27. The sentence awarded against the appellants was suspended by this Court while admitting the criminal appeal on date 27.1.2003 where after the appellants were released from jail, however the appellants would now be required to surrender before the trial Court to serve the remainder' of the sentence, as awarded by the trial Court and confirmed by this Court under section 498N34, IPC. The case property, viscera and clothes of deceased Abhilasha may be retained in the proper custody up till the expiration of the period of appeal, however the same may be destroyed in the event of there being no appeal preferred on behalf of the present appellants. 28. Therefore, this criminal appeal is partly allowed in the aforesaid terms of the judgment.