JUDGMENT Under Section 498-A I.P.C. : Sentenced to undergo 2 years R.I. with fine of Rs. 1,000/- and in default thereof to further undergo 15 days S.I. Under Section 304-B I.P.C. : Sentenced to undergo 10 years R.I. with fine of Rs. 2,000/- and in default thereof to further undergo one month S.I. 1. This criminal appeal under Section 374 of the Code of Criminal Procedure has been filed against the judgment and order dated 18.11.2005 passed by the Additional Sessions Judge (Fast Track) Sikar in Sessions Case No. 17 of 2005, State v. Ram Avtar and others whereby the accused-appellants have been convicted and sentenced as under : 2. Briefly stated, the facts for the disposal are that on 12.10.2004 at about 2.15 P.M., PW-3 Narain Lal submitted Ex.P-4 a written report at spot before the SHO, Police Station Raghunathgarh District Sikar with the averments that his two daughters, namely; Sharda and Suman were married in the family of accused-appellant Ramdevaram (father-in-law), Ram Avtar (Jeth) and Smt. Sand Devi (mother-in-law). Their husbands were living in foreign country to earn their livelihood. The in-laws used to taunt and torture both his daughters. On the day of incident in the morning at 8.00 A.M. Suman intimated on telephone No. 292379 to him as well as to her mother. At that time she was in stress and fear. It was also alleged that she told her mother that her in-laws were giving beating to her and in the previous night she was also given beatings. She made a request to come immediately and take her with them. It was also averred that on previous occasions also, she was beaten by her in-laws and they were asked not to taunt and ill-treat the girls but they did not do so. The in-laws first murdered the daughter and thereafter thrown her into a well. It was also stated that sufficient amount of dowry was given at the time of marriage. On this report, F.I.R. No. 148/2004 was registered at Police Station for the offence under Sections 498-A and 304-B I.P.C. and ' investigation commenced. During the course of investigation, post mortem on the dead-body of Suman was conducted. The post mortem report Ex.P-5 was prepared. Formal F.I.R. Ex.P-6 was registered. On this report, F.I.R. No. 148/2004 was registered at Police Station for the offence under Sections 498-A and 304-B I.P.C. and ' investigation commenced. During the course of investigation, post mortem on the dead-body of Suman was conducted. The post mortem report Ex.P-5 was prepared. Formal F.I.R. Ex.P-6 was registered. Statement of witnesses were recorded and after completion of usual investigation, charge-sheet was filed against the accused-appellants under Sections 498-A and 304-B I.P.C. Ultimately, the matter came up for trial before the learned Additional District and Sessions Judge (Fast Track), Sikar. Against the accused-appellants charge was framed for the offence under Sections 498-A and 304-B I.P.C. to which the accused denied and claimed trial. In support of its case, the prosecution examined 16 witnesses and tendered several documents. In the statement recorded under Section 313 Cr.P.C., the accused stated that they were falsely implicated in the case. It was also stated that since the husband of the deceased and Smt. Sharda were living in foreign country and were remitting their earnings to their father and mother to repay the debt which was not liked by them, therefore, deceased committed suicide. It was also alleged that Sharda, the sister of the deceased, a month before the incident had left the in-laws house on account of harassment. In defence DW-1 Nemi Chand and DW-2 Devi Lal were examined.3. After hearing final submissions, learned trial Court convicted the accused-appellants under Sections 498-A and 304-B I.P.C. and sentenced them as indicated here-in-above. Hence, the appellants have filed the present appeal.4. I have heard learned counsel for the accused-appellants as well as learned Public Prosecutor for the State assisted by the learned counsel for the complainant.5. The learned trial Court recorded its findings to the following effect : (i) within 7 years of marriage the deceased has died in suspicious circumstances, therefore, presumption was required to be drawn against the accused-appellants; (ii) in view of the evidence of PW-3 Narain Lal, the father of deceased, PW-10 Sharda, sister of deceased and PW-12 Heera devi, the mother of the deceased, the prosecution was able to prove its case beyond doubt against accused-appellants and that on account of ill-treatment given to the deceased she committed suicide; (iii) the other evidence in this case is of PW-2 Sultan and PW-15 Manoj Choudhary, the Investigating Officer of the case also corroborated the prosecution case. In the present case, in view of the submissions made before me, the following points require consideration; (i) as to whether the accused made demand of dowry soon before her death; (ii) whether the accused tortured the deceased and as a result of torture and ill-treatment given to her, she committed suicide; and (iii) whether the judgment of conviction and order of sentence passed by the learned trial Court deserves to be up-held. 6. Now, I promise to examine the points framed by me.7. Since, points No. 1 and 2 are inter-connected, as such they are being decided together.8. The first document of the prosecution is Ex.P4 which is the F.I.R. handed over to the SHO, Police Station Raghunathgarh at spot. It nowhere states that soon before the alleged incident, there was any demand of dowry made by the accused-appellants. It also nowhere states that on account of dowry, the deceased was ill-treated. What has been stated in the F.I.R. is that on 2-3 previous occasions, the deceased was given beating. The relevant evidence which requires consideration is of PW-3 Narainram, PW-10 Sharda and PW-12 Heera Devi. PW,3 Narainram in his statement recorded before the trial Court has stated that his two daughters were got married in the family of accused-appellants. The deceased and another daughter of the witness on coming to parental house used to make complaints about the ill-treatment and beating given to them and on the basis of these complaints made by his daughter, in-laws were requested to mend their behaviour but they did not mend their behaviour. It is also stated on the day of incident on telephone which was received by one Subhash at his residence and he intimated that the deceased told him that she was being given beating by the in-laws. It is on this information given by Subhash, the witness has talked to their daughter who intimated on telephone to come immediately. The witness has also stated that thereafter he along with other persons reached at the spot. The dead-body of deceased Suman was lying near a well. There were several injuries on the person of deceased. He has also stated that in relation to alleged incident, F.I.R. Ex.P-4 was handed over to the police at the spot. In the cross-examination, the witness has denied the relevant portions of Ex.D-3 which is his police statement. The dead-body of deceased Suman was lying near a well. There were several injuries on the person of deceased. He has also stated that in relation to alleged incident, F.I.R. Ex.P-4 was handed over to the police at the spot. In the cross-examination, the witness has denied the relevant portions of Ex.D-3 which is his police statement. He has also stated in the cross-examination that though he stated to the police about the demand of dowry, ill-treatment and beating given to her daughter by in-laws but he cannot say why police has not mentioned these things. The witness when was confronted with F.I.R. Ex.P-4 which does not make a mention about the demand of dowry made soon before the death or at any point of time to which the witness stated that though he disclosed everything to the police but why it was not stated in Ex.P-4 he cannot tell the reason. The witness in fact has denied most of the relevant portions of police statement Ex.D,3. It appears that Ex.D-3 was recorded on 12.10.2004 and thereafter another police statement Ex.D-4 was recorded on 15.12.2004. Another witness is PW-10 Sharda, the sister of the deceased. Her police statements are Ex.D-10 and Ex.D 11.In her statement before the Court she has stated that the deceased was ill-treated and in in-laws used to torture her. She has also stated that she was also tortured by her in-laws. She has also stated that Suman was first beaten and thereafter murdered and her dead-body was thrown into a well. A perusal of her examination-in-chief reveals that she has hurled all allegations about the ill-treatment given to her and the deceased. She has also stated that for in-sufficient dowry, ill-treatment and beatings were given. The cross-examination from the witness suggests that she has denied material part of Ex.D-10. She has denied almost all the relevant portions of the police statement from 'A' to 'P'. Another police statement of the witness was recorded on 15.11.2004. When the witness was confronted with this statement in relation to demand of dowry soon before death, she stated that she narrated to the police but she cannot tell why police has not mentioned the correct statement made by her. PW-12 is Heera Devi. Her police statement is Ex.D-12. Another police statement of the witness was recorded on 15.11.2004. When the witness was confronted with this statement in relation to demand of dowry soon before death, she stated that she narrated to the police but she cannot tell why police has not mentioned the correct statement made by her. PW-12 is Heera Devi. Her police statement is Ex.D-12. In the examination-in-chief she has stated what her husband PW-3 Narainram and her daughter Sharda has stated but in the cross-examination when she was confronted with her police statement Ex.D-12 that there does not appear demand of dowry or ill-treatment given soon before the death and the fact that she was beaten and murdered thereafter thrown into a well, she stated that she narrated everything to the police. In fact this witness has clearly stated something absolutely new that before 11/2 months of the incident her another daughter was ill-treated and Ramdevaram tried to strangulate her neck and at that time her son was there and because of his made hue and cry her daughter could be saved. The important aspect of the matter is that soon before the death was there any demand of dowry made by the accused. On this aspect, a perusal of the examination-in-chief together with cross-examination reveals that this part is absolutely missing.9. In other evidence, PW-6 Kishore and PW-7 Jawahar Singh are the important witnesses of the prosecution. The above two witnesses have stated that they saw the manner in which the deceased was murdered.10. PW-6 Kishore has stated that the deceased was harassed by the accused-appellants for bringing less dowry and on the day of incident at about 7.30-8.00 A.M., while he was sitting outside his house which is near the house of the accused-appellant, he heard the noise of a woman and on hearing the cry he saw at the 'dhani' of accused Ramdevaram. He saw that Suman was lifted by getting her hands caught by accused Ramdevaram and Shanti and her legs were caught by Sheeshram and Ramavtar and behind them was Bhagwan and Hariram. He has also stated that Suman was brought to the well by Ramdevaram and thereafter the body was kept on the Earth and subsequently with the help of a rope the dead-body was put into the well. In the cross-examination he has stated that the entire episode took one hour time. He has also stated that Suman was brought to the well by Ramdevaram and thereafter the body was kept on the Earth and subsequently with the help of a rope the dead-body was put into the well. In the cross-examination he has stated that the entire episode took one hour time. He has also stated that on the day of incident he had not talked to anybody about the incident. He has also stated that he did not intimate to the police also. He has also stated that when the police came he also did not tell to the police at the spot. He has admitted that he was not having good relation with the accused-appellants.. There were cases lodged by the accused side against him as also he had lodged F.I.R. against the accused. It is also significant to note that on two occasions his police statements were recorded. One statement Ex.D-7 was recorded on 7.11.2004 and another Ex.D-8 on 18.12.2004. The police statements are Ex.D-7 and D-8 respectively. In the cross-examination, the witness was confronted with the above statements and the witness denied the relevant part of the statement. It is further to be seen that his first statement was recorded on 7.11.2004 whereas the incident is dated 12.10.2004. His further statement Ex.D-8 was recorded on 18.12.2004 i.e. after two months. After carefully examining the examination in chief and cross-examination of the witness, it appears that his evidence is not at all reliable for the reason that firstly the witness has lodged complaint in the police against accused and the accused also made complaint against him; secondly, much after the day of incident, after more than two months, his statement was recorded by the police and thirdly when he had seen such an incident, he did not utter a word about the incident to anybody. He has also not disclosed this fact when the police came at the spot to make enquiry and suddenly he has appeared as eye-witness of the incident after 25 days and thereafter after two months he himself was not shown eye-witness to the police.11. Another eye-witness is Jawahar Singh PW-7. He has also not disclosed this fact when the police came at the spot to make enquiry and suddenly he has appeared as eye-witness of the incident after 25 days and thereafter after two months he himself was not shown eye-witness to the police.11. Another eye-witness is Jawahar Singh PW-7. He has also described the manner in which the deceased was thrown into the well by the accused-appellants and ill-treatment given by the in-laws to the deceased but then when cross-examination conducted from this witness is seen, it appears that he is not reliable witness for the reason that his statement Ex.D-9 was recorded on 15.11.2004 and he also did not tell about the incident to anybody. He has also accepted enmity with the accused. Thus, his evidence is also not trust-worthy.12. In the other evidence, Bagaram PW-1 is in relation to Panchayatnama. He has stated that Ex.P-1 Panchayat nama was prepared before him and at that time he saw that the deceased had several injuries on her person. He has also proved site-plan Ex.P-2 and seizure of 'chappal' made vide memo Ex.P-3.13. PW-15 Manoj .Choudhary is the Investigating Officer. He has conducted investigation in the case and recorded statements of the witnesses. The accused were arrested by him. He had in his cross-examination stated that during investigation it was revealed that the deceased committed suicide on account of harassment given by accused Ramavtar.14. PW-8 is Dr. Mohd. Farooq, one of the member of the Medical Board who conducted autopsy and found injuries on the person of the deceased. He has proved Ex.P-5. He has stated that the cause of death was hemorrhage and shock due to laceration of left side lung which was sufficient in the ordinary course of nature to cause death. The other evidence in this case is of formal nature. In the other evidence it has come that Ramavtar who was Jeth of the deceased, used to harass the deceased for arranging a suitable match for him as he was un-married.15. The other evidence in this case is of formal nature. In the other evidence it has come that Ramavtar who was Jeth of the deceased, used to harass the deceased for arranging a suitable match for him as he was un-married.15. The finding recorded by the learned trial Court that in view of the evidence of PW-1 Bagaram, PW-3 Narainram, PW-10 Sharda and PW-12 Heera Devi, the prosecution was able to prove its case, in my opinion, is not the correct appreciation of evidence for the reasons; firstly, that in the instant case in F.I.R. Ex.P-4 there appears no demand of dowry made soon before the death of the deceased, secondly, the document Ex.P-4 is completely insufficient to raise a presumption that accused made demand of dowry soon before the death.16. Now, the statement of PW-3, Narainram, the father of deceased, PW-10 Sint. Sharda sister of the deceased and PW-12 Heera Devi the mother of deceased are relevant. The above witnesses have stated about the ill-treatment given to the deceased before the Court but in the police statement of the above witnesses there ,is no whisper about it. When the above witnesses were confronted with their police statement, they stated to have narrated the fact to the police but the police did not make a mention of this effect. Narainram PW-3 has even stated that in the report which he lodged, he stated about the fact of demand of dowry, ill-treatment and other things but in Ex.P-4 no mention of this sort finds place. The cross-examination conducted from the witnesses suggest that they have completely changed the story before the Court and even they denied their police statement as well. Thus, their evidence is not sufficient to raise presumption against the accused-appellants that either they murdered the deceased or they compelled her by their ill-treatment to commit suicide. Again it is also very important to be seen that in the instant case two witnesses namely Pw-6 Kishore and PW-7 Jawahar Singh have been produced to prove that the above two witnesses have seen the occurrence and the manner in which the dead-body of the deceased was taken from the house to the well by the accused-appellants and at that time she was lifted by the accused persons and ultimately she was put in the well with the help of a rope. The evidence of above witnesses PW-6 Kishore and PW-7 Jawahar Singh is not at all reliable as has been discussed here-in-above. The evidence of above witnesses is further not reliable for the simple reason that they had grudge against the accused as the accused side had lodged F.I.R. against them. It is also quite strange that the statement of the above witnesses could not be recorded for more than two months. During the course of arguments, learned counsel for the complainant was not able to satisfy the Court in relation to credibility of the above witnesses as well.17. The cause of death is on account of laceration of left lung and as per the evidence brought on record it appears that the dead-body of the deceased was found in a well. The depth of the well is more than 150 ft. and at several places there were iron angles. In the above circumstances, the possibility cannot be ruled out that on account of iron angles the injuries were caused on the body of the deceased. The defence of the accused-appellants has been that both the sisters were not happy with their in-laws for the reason that their husbands were in foreign country and they were not remitting money earned by them to the deceased and her sister and Suman being a lady of short temperament, committed suicide. Two witnesses DW-1 and DW-2, namely Nemichand and Devilal have been examined to prove their defence.18. I have perused their statements carefully.19. What the accused have stated in their statement recorded under Section 313 Cr.P.C., is the same as the witnesses of defence have stated. It is not necessary to discuss the evidence of defence witnesses in detail for the simple reason that the evidence of the prosecution which has been led in the case is not trust-worthy. The evidence in relation to torture given to the deceased which has come on record is to the extent that Jeth Ramavtar used to taunt both the sisters for getting a suitable match for him as he was unmarried but that cannot be a reason and cannot be considered sufficient reason to presume that ingredients of Section 498-A I.P.C. have been satisfied so as to record conviction against Ramavtar in the present case.20. In view of the discussions made and the evidence led to the case while deciding points is that the evidence in this case is not sufficient and the learned trial Court has misread the evidence and findings recorded in this case are of perverse nature, therefore, are liable to be set aside and the judgment of conviction in order of sentence is liable to be set aside.21. In view of the above discussion and answer to the rights framed by me, the appeal is hereby allowed and the judgment of conviction and order of sentence dated 18.11.2005 passed by the learned trial Court is hereby set aside. The accused-appellants are acquitted for the offences charged under Sections 304-B and 498-A I.P.C. The accused-appellants are in jail and if they are not required in any other case, they be set at liberty forthwith. Appeal allowed. *******