JUDGMENT 1. - The instant criminal revision petition under Section 397/401 of the Code of Criminal Procedure is preferred by the petitioner challenging the order dated 10.12.2009 passed by the Additional District & Sessions Judge (Fast Track) No.2, Jaipur City, Jaipur in Sessions Case No. 44/2001, by which charge under Section 304B Indian Penal Code has been framed against the accused-petitioner. 2. Brief facts of the case are that on 19.08.1991 a report came to be lodged by Shri Ram Kumar Aswani and Shri Naresh Kumar Aswani to S.P., Jaipur City, Jaipur, wherein it was alleged that on 10.08.1991 the complainant's sister who was married to the accused-petitioner, was found dead hanging to the ceiling fan in her matrimonial house in suspicious circumstances and it seems that she has been killed. On the basis of the said report, the police registered a case under Section 306 Indian Penal Code and started investigation. 3. It is further submitted that during investigation the accused-petitioner was enlarged on anticipatory bail by the District & Sessions Judge, Jaipur City, Jaipur on 22.02.1992. Thereafter on 07.12.1992 a charge-sheet came to be filed against the accused-petitioner for the alleged offence under Section 306 Indian Penal Code in the Court of Judicial Magistrate No.7, Jaipur City, Jaipur, who committed the case to the Court of District & Sessions Judge, Jaipur City, Jaipur, from where it was transferred to the Court of Special Judge (Sati Niwaran) & Additional District & Sessions Judge, Jaipur City, Jaipur for trial. On 08.05.2007, the trial Court after hearing the rival submissions of the respective parties framed charge for the offence under Section 306 Indian Penal Code against the accused-petitioner. 4. Being aggrieved and dissatisfied with the said order of the trial Court dated 08.05.2007, the accused-petitioner preferred a revision petition before this Court which was registered as S.B. Criminal Revision Petition No. 470/2007 and the same came to be decided by this Court vide order dated 23.07.2009, whereby the impugned charge order dated 08.05.2007 was set aside and the matter was remanded back to the trial Court for deciding the same afresh to frame suitable charge against the accused petitioner. 5. The Additional Sessions Judge (Fast Track) No.2, Jaipur City, Jaipur, after giving opportunity of being heard to the parties, framed charge against the accused-petitioner under Section 304B Indian Penal Code vide its order impugned dated 10.12.2009. 6. 5. The Additional Sessions Judge (Fast Track) No.2, Jaipur City, Jaipur, after giving opportunity of being heard to the parties, framed charge against the accused-petitioner under Section 304B Indian Penal Code vide its order impugned dated 10.12.2009. 6. The said impugned order dated 10.12.2009 has been challenged by the petitioner by way of present revision petition on the ground that the trial Court failed to consider this aspect of the matter that in the instant case there is substantial delay in lodging the FIR as Smt. Bharti Singh died on 10.08.1991 whereas the FIR was registered on 19.08.1991. Therefore, lodging of FIR after such a delay itself makes the case suspicious and that too without any details and as such, no case under Section 304B Indian Penal Code can be made out against the accused-petitioner. 7. The impugned order has further been challenged on the ground that the trial Court totally failed to consider the ingredients of the FIR and the statement recorded under Section 161 Criminal Procedure Code of the deceased as in the whole statement including the statements of neighbors to the house of the accused-petitioner and deceased, friends and relatives, not a single witness stated that the accused-petitioner committed any cruelty with the deceased in connection with demand of dowry, which makes it amply clear that when the basic ingredient of Section 304B Indian Penal Code is missing in the present case that is to say that cruelty in connection to demand of dowry is missing, no case can be said to be made out against the accused-petitioner under Section 304B Indian Penal Code."" 8. It is averred that the trial Court failed to consider the story of the prosecution also because as per the statement of witness Suman who herself stated that she was best friend of the deceased and there was a long period of courtship between the deceased and the accused-petitioner and thereafter both of them owing to love between them entered into nuptial wedlock against the wishes of the family of the deceased, therefore, it is suffice to say that it was a case of love marriage where no question of dowry arose between the parties. The said witness also stated that whenever she met with the deceased she always praised the accused petitioner and on the fatal date also she was very happy with her husband when the witness met with the deceased till 5.00 p.m. in the evening. On the contrary, she was blaming her brothers and parental side for not behaving properly with her and as such, the basic ingredient of Section 304B Indian Penal Code that is to say that soon before the death, the deceased ought to have been subjected to cruelty in order to coerce her for unlawful demand of dowry, is missing. On the contrary, there is positive evidence against the complainants itself for their bad mental status which the trial Court totally failed to consider. 9. It is also submitted that the trial Court further failed to consider that even in the complainants statement recorded under Section 161 Criminal Procedure Code it has been categorically stated that after her marriage there was no connection between the deceased and the complainants, rather they had never talked her before death. In these circumstances, the finding arrived at by the trial Court that the accused-petitioner asked for money from the deceased's parental house through deceased, is totally baseless and perverse to the record of the case and as such, prima-facie no case is made out against the petitioner for the offence under Section 304B Indian Penal Code. 10. Further, the trial Court failed to consider that immediately after the death of the deceased, there was an enquiry by the ACM, Jodhpur for the unnatural death of the deceased, wherein the original suicidal note was subjected to enquiry of the ACM and enquiry report and original documents were sent to the Investigating Officer by the ACM, therefore, disbelieving the suicidal note by the trial Court is not only perverse to the record but also per se illegal. 11. The trial Court failed to consider that the prosecution under Section 113B of the Indian Evidence Act, can only raise charge against the accused when the basic three ingredients of the alleged offence under Section 304B are fulfilled i.e. death in unnatural circumstances within 7 years of marriage, soon before death subjected the deceased to cruelty for fulfillment of demand of dowry. In the instant case, there is not even an iota of evidence with regard to the main ingredient of the offence i.e. dowry. 12. After referring the statements and the order passed by the trial Court, the learned counsel for the accused-petitioner submits that the Hon'ble Supreme Court time and again laid down that at the time of framing of the charges, the criminal court is under an obligation to consider that liberty of a person is at stake and the trial courts are not expected to act alike mouth piece of the prosecution to endorse the charge-sheet while framing the charges, rather they are under a bounded duty to consider and sift the evidence to this extent that in case no grave and suspicious charge is against the accused then the criminal court is within its right to discharge the accused, but in the present case the trial Court gone ahead a step and framed charge again the accused-petitioner under Section 304B Indian Penal Code. 13. In support of his submissions, the learned counsel for the petitioner placed reliance on the judgments delivered by the Hon'ble Supreme Court in the cases of Sunil Bajaj v. State of M.P., reported in (2001) 9 SCC 417 , (2) Mungeshwar Prasad Chaurasia And Another v. State of Bihar, reported in (2002) 10 SCC 163 , (3) Gurucharan Kumar And Another v. State of Rajasthan, (2003) 2 SCC 698 and in the case (4) State of Rajasthan v. Teg Bahadur And Others, reported in (2004) 13 SCC 300 . 14. 14. The judgment delivered by the Hon'ble Supreme Court in the case of Baljeet Singh And Another v. State of Haryana, reported in (2004) 3 SCC 122 , has also been referred by the learned counsel for the petitioner, wherein the Hon'ble Supreme Court observed in the following terms:- B. Penal Code, 1860- Sections 304-B and 498-A- Suicide by wife- Allegation of dowry death- Guilt of appellant husband- Whether established on facts- Complaint filed nearly 8 days after the incident after lots of deliberation and consultation- Statement of father of deceased D that he had no knowledge of death of D and her cremation was done without informing him and his family, held on facts, not true- Possibility that D committed suicide in a state of depression- One B who was stated to have given information to complainant party about the death of D, was an imaginary person- PW 6 speaking about harassment of D but failed to state so in his statement under Section 161 Criminal Procedure Code- Appellant was employed in some other town and most of the time he was away from his village (where D was living)- In view of the above and the fact that the prosecution failed to prove that the death of D occurred within seven years of her marriage, held, conviction liable to be set aside."" 15. Learned counsel for the petitioner further placed reliance on the judgment of the Hon'ble Supreme Court delivered in the case of Surinder Kaur And Another v. State of Haryana, reported in (2004) 4 SCC 109 , wherein the Hon'ble Supreme Court while reiterating the same view has observed as under:- Penal Code, 1860- Section 304-B Dowry death- Proximity of the cause- Appreciation of- Conviction of two sisters-in-law of deceased- Propriety- High Court confirming conviction of appellants and husband of deceased B- But, acquitting father-in-law and mother-in-law of B as their names not mentioned in FIR General allegations without particulars of time and date regarding the alleged harassment meted out by appellants- Specific allegations made only against husband and his father- Appellants not parties to demand for buffalo and Rs. 25,000 which appeared to be the proximate cause of B committing suicide- If at all the prosecution case against the appellants was to be accepted it would only show that soon after the marriage i.e. about 2½ years prior to the death of B, there was some alleged harassment for lack of dowry- Hence, allegations not proximate to the death of B-Improvement in evidence of PW7- No ground to differentiate the case of appellants from that of their mother who was acquitted on same set of evidence- Held, courts below erred in convicting the appellants- Appeal allowed."" 16. In support of his submission that since the accused-petitioner has not been charged under Section 306 Indian Penal Code and the charge framed by the trial Court has been quashed and set aside by this Court vide order dated 23.07.2009, therefore, the accusedpetitioner cannot be convicted under Section 304B Indian Penal Code, the learned counsel for the petitioner placed reliance on the judgment rendered by the Hon'ble Supreme Court in the case of Harjit Singh v. State of Punjab, reported in (2006) 1 SCC 463 . 17. 17. Learned counsel for the petitioner further referred the judgment of the Hon'ble Supreme Court delivered in the case of T. Aruntperunjothi v. State Through S.H.O., Pondicherry, reported in (2006) 9 SCC 467 , wherein the Hon'ble Supreme Court observed in the following terms:- Penal Code, 1860- Section 304- B- Suicidal death of a woman- Whether she was subjected to cruelty or harassment by her husband for or in connection with demand for dowry soon before her death- Proof- Conduct of family members of deceased was relevant as no complaint was made by them and they took back all articles given in marriage- Instead deceased's husband (appellant) himself lodged the FIR-Demand for dowry not established by cogent evidence- No evidence, direct of indirect, as regards harassment or cruelty by appellant against his wife- Necessary ingredients of circumstantial evidence for holding appellant guilty not considered by trial court as well as High Court- Even if there was misunderstanding between appellant and deceased, that would not automatically lead to the conclusion that appellant committed offence under Section 304-B as law does not raise such a presumption- Trial court took erroneous view that another person had made demands from deceased's parents as messenger of appellant and that his insistence revealed that what was demanded by that person was a dowry demand- Such a hypothesis could not be made basis for conviction of appellant under Section 304-B- Defence version that cause of death was that deceased had insisted to go to her mother's house but she was not allowed, plausible- Having regard to the peculiar features of the case, held, cruelty or harassment for dowry being the cause for death of the deceased, not established beyond all reasonable doubt- Conviction under Section 304-B not sustainable."" 18. The judgments of the Hon'ble Supreme Court rendered in the cases of (1) Appasaheb and Another v. State of Maharashtra, (2007) 9 SCC 721 , (2) Biswajit Halder Alias Babu Halder and Others v. State of W.B., (2008)1 SCC 202 and in the case of (3) Rajesh Tandon v. State of Punjab, 1995 SCC (Cri) 817 , have also been relied upon by the learned counsel for the petitioner. 19. 19. Per contra, learned Public Prosecutor appearing on behalf of the State controverted the submissions made on behalf of the petitioner and submits that no illegality has been committed by the Additional District & Sessions Judge (Fast Track) No.2, Jaipur City, Jaipur while passing the order impugned dated 10.12.2009 and rightly framed charge under Section 304B Indian Penal Code against the accused petitioner. 20. Much emphasise has been given by the learned Public Prosecutor that in the earlier revision petition i.e. S.B. Criminal Revision Petition No. 470/2007, which was preferred by the petitioner against the order dated 08.05.2007 passed by the trial Court framing charge for the offence under Section 306 Indian Penal Code against the petitioner, this Court vide order dated 23.07.2009 upon consideration of each and every aspect as well as the judgments rendered by the Hon'ble Supreme Court, observed as under:- In the light of the facts and circumstances of the present case, the settled principles of law in respect of framing of charge and unnatural death which occures within seven years of marriage, I am of the considered opinion that the instant case requires reconsideration by the learned Court below." Consequently, the case is remitted to the learned trial Court, after setting aside the order dated 08.05.2007, with the direction to consider the matter afresh at the stage of charge, in accordance with law." 21. Meaning thereby the charge framed under Section 306 Indian Penal Code against the petitioner by the trial Court vide order dated 08.05.2007 has been quashed and set aside by this Court vide order dated 23.07.2009. 22. It is further contended that pursuant to the directions given by this Court in the aforesaid revision petition No. 470/2007 vide order dated 23.07.2009, the trial Court reconsidered the matter afresh and rightly framed charge under Section 304B Indian Penal Code against the accused-petitioner vide order impugned dated 10.12.2009 and the same requires no interference by this Court and the present revision petition deserves to be dismissed being devoid of merit. 23. I have heard rival submissions of the respective parties and carefully perused the order impugned passed by the trial Court dated 10.12.2009 and also thoroughly gone through the judgments referred before this Court. 24. Section 2 of the Dowry Prohibition Act, 1961 (for short 'the Act of 1961') provides definition of dowry, which reads as under:-"" 2. 23. I have heard rival submissions of the respective parties and carefully perused the order impugned passed by the trial Court dated 10.12.2009 and also thoroughly gone through the judgments referred before this Court. 24. Section 2 of the Dowry Prohibition Act, 1961 (for short 'the Act of 1961') provides definition of dowry, which reads 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 parents 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 mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies. Explanation II.- The expression valuable security has the same meaning as in section 30 of the Indian Penal Code." 25. Now, to decide the present controversy, it is necessary to examine the provisions of Section 304B Indian Penal Code which reads as under:- 304B. Dowry death.- (1) Where the death of a woman is caused by any burns 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.]" 26. 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.]" 26. To examine the fact whether any offence under Section 304B Indian Penal Code has been committed or not, it is necessary for the prosecution to establish that soon before death the deceased was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry and then only such death can be called dowry death."" 27. The meaning of dowry has been taken as it is as in Section 2 of the Act of 1961, which has already been reproduced herein above."" 28. The prosecution can only establish the guilt of the accused-petitioner under Section 304B Indian Penal Code with the help of evidence and the statements of the witnesses recorded by the trial Court. 29. Witness Shri Jagat Singh S/o Shri Bhawani Singh, deposed in his statement as under:- ' ----ujsUnz ds dejs esa eSa ugha x;k bu nksuksa ds vkil esa >xM+k filkn o eueqVko okyh ckr eSaus ugha ns[kh nksuksa cM+s izse ls jgrs Fks---------- ' 30. Same has been deposed by witness Shri Sitaram Gupta S/o Shri Jamna Lal Gupta in his statement which is reproduced hereunder:- " ----eSaus ujsUnz flag o Hkkjrh ds vkil esa dgk lquh o >xM+k filkn gksrs dHkh ugha ns[kk esjh buls fo'ks"k tkudkjh Hkh ugha D;ksafd eSa jkr ysV ?kj vkrk gwa---- " 31. Further witness Kum. Same has been deposed by witness Shri Sitaram Gupta S/o Shri Jamna Lal Gupta in his statement which is reproduced hereunder:- " ----eSaus ujsUnz flag o Hkkjrh ds vkil esa dgk lquh o >xM+k filkn gksrs dHkh ugha ns[kk esjh buls fo'ks"k tkudkjh Hkh ugha D;ksafd eSa jkr ysV ?kj vkrk gwa---- " 31. Further witness Kum. Suman D/o Shri Chaman Lal Sharma, the friend of the deceased, in her statement stated as under:- " ujsUnj o Hkkjrh cgqr [kq'k Fks eSaus dHkh eueqVko o >xM+k ugha ns[kk vkSj uk gh vkil esa dHkh ukjktxh ns[kh fnukad 10@8@91 dks eSa djhc 1 cts Hkkjrh ds ikl vk;h Fkh ge nksuksa us idkSM+s rFkk vkyw ds ijkaBs cuk;s brus esa gh ujsUnj vk x;k geus rhuksa us ,d lkFk cSBdj idkSMs rFkk ijkaBs [kk;s fQj eSa FkksMh nsj ds fy;s ysV x;h ujsUnj o Hkkjrh vkil esa galh etkd dj jgs Fks fQj djc 5 cts eSa tkus yxh rks Hkkjrh us fQj mls pk; fiykbZ rFkk dgk fd dy ckyksa esa esagnh yxk;saxs lqcg vkuk rc eSaus lqcg vkus ls euk dj fn;k Fkk fQj esa ?kj pyh x;h---- " 32. Witness Kum. Indra Sharma D/o Shri Rameshwar Prasad Sharma, stated the same version in her statement which reads as under:- " ----Hkkjrh o ujsUnj flag ges'kk [kq'k jgrs Fks Hkkjrh flag ds vkil esa cMs HkkbZ ls cksy pky ugha Fkk ckdh lHkh ls vPNs lEca/k Fks Hkkjrh rFkk ujsUnj nksuksa gh 'kjkc ihrs Fks Hkkjrh dks eSaus dHkh 'kjkc ihrs ugha ns[kk ujsUnj T;knk 'kjkc ihus dk vknh gS blds vykok bl gknls ckcr eq>s dksbZ tkudkjh ugha gSA " 33. Again witness Shri Badrinarain S/o Shri Chandmal, also stated in her statement as under:- " eSaus ujsUnz o Hkkjrh ds vkil esa >xM+k fQlkn gksrs ugha ns[kk nksuksa lkFk ukSdjh ij tkrs Fks lkFk vkrs Fks cMs izse ls jgrs Fks blds llqjky okyksa dks buds ?kj vkrs tkrs eSaus ugha ns[kk eq>s ;g ekywe gS fd Hkkjrh o ujsUnz flag us vius ?kjokyksa dh ethZ ds f[kykQ ;g 'kknh dh FkhA " 34. Witness Shri Chandan Mal S/o Shri Shivdan Mal, the next door neighbour, stated in his statement as under:- " ----ujsUnz flag o Hkkjrh flag dks vkil esa yMrs >xM+rs dHkh ugha ns[kk nksuksa izse ls jgrs Fks ,d lkFk ukSdjh ij tkrs Fks vkSj ,d lkFk vkrs Fks---- " 35. Witness Shri Chandan Mal S/o Shri Shivdan Mal, the next door neighbour, stated in his statement as under:- " ----ujsUnz flag o Hkkjrh flag dks vkil esa yMrs >xM+rs dHkh ugha ns[kk nksuksa izse ls jgrs Fks ,d lkFk ukSdjh ij tkrs Fks vkSj ,d lkFk vkrs Fks---- " 35. Yet another neighbour Shri M.K. Ansari S/o Shri Manzoor Kareem, also stated as under:- " ----cMs izse ls jgrs Fks geus buds vkil esa dgk lquh o yM+kbZ >xM+k gksrs dHkh ugha ns[kk---- " 36. Smt. Maya Devi W/o Late Shri Ashok Kumar, the mother of deceased Bharti, stated in her statement as under:- " ----ges'kk iSlksa dh raxh ds ckcr dgrh Fkh o crkrh Fkh esjs ifr lkjk 'kjkc mMk nsrs gSa eSaus dbZ ckj mls iSls Hkh fn;s xSl [kjhn dj nh rFkk diMs+ Hkh nsrh Fkh fnukad 10@8@91 dh jkr dks eq>s esjs yMds us crk;k fd Hkkjrh us vkRegR;k djyh eq>s vksj dksbZ tkudkjh rks ugha gS ysfdu Hkkjrh tc Hkh esjs ikl vkrh dqN ijs'kku lh jgrh Fkh rFkk iSls dh raxh ds ckcr dgrh Fkh ujsUnz flag ds pfj= ds ckcr eq>s esjs yM+ds jkedqekj us crk;k FkkA " 37. The statement of the mother of the deceased does not constitute the offence under Section 304B Indian Penal Code. 38. The statement of the mother of the deceased does not constitute the offence under Section 304B Indian Penal Code. 38. So is the statement of Shri Ram Kumar Aswani S/o Shri Ashok Kumar, the brother of the deceased, who stated in his statement as under:- " vpkud Hkkjrh us ujsUnz flag ls gekjh ethZ ds f[kykQ vk;Zlekt esa 'kknh djyh vkSj og ujsUnz flag ds lkFk jgus yx x;h rc ls eSaus mlls cksyuk pkyuk cUn dj fn;k Fkk mldh ftUnxh dSlh xqtj jgh Fkh eq>s irk ugha eSa esjh eka rFkk NksVs HkkbZ ls vyx jgrk gwWa Hkkjrh 'kknh ds ckn dHkh esjs ?kj ij ugha vk;h fnukad 10@8@91 dks jkr djhc 12 cts etgj djhe valkjh rFkk pUnu ey ekFkqj esjs ?kj ij vk;s vkSj dgk fd ujsUnz flag vius edku esa jks jgk gS---- ----Hkkjrh ml fnu 5 cts rd viuh lgsyh lqeu ds lkFk gh Fkh vkSj iw.kZr;k ukWjey Fkh jkr dks esjs ikl ,d bUnzk uke dh yM+dh dk VsyhQksu vk;k Fkk mlus Hkkjrh dh ekSr ds ckcr iwNk Fkk ujsUnz flag ds dbZ vU; yMfd;ksa ls uktk;t lEca/k gS vkSj og cnek'k izo`fr dk yM+dk gS esjh cghu vkRegR;k ugha dj ldrh gkykr dks ns[krs gq;s eq>s blesa ujsUnz flag ij iwjk 'kd gS blus mldh gR;k dh gSA ;g igys Hkh fdlh eMZj ds ekeys esa fyIr jgk gSA " 39. Another brother of the deceased, Shri Naresh Aswani S/o Shri Ashok Kumar Aswani, attested the version deposed by his brother Shri Ram Kumar Aswani, stating as under:- " rc ge ?kjokys us Hkkjrh dks le>k;k fd mlds lkFk ;g Bhd ugha gS vxj rq>s ' gh djuh gS rks rw fdlh Hkh dkSe dk dksbZ vPNk yM+dk <+wa< ys ge rsjh 'kknh dj nsaxs ysfdu ujsUnz dqekj flag us irk ugha Hkkjrh ij D;k tknw Mkyk mlus ,d fnu gesa Li"V ;g dg fn;k fd eSa ujsUnz flag ds lkFk 'kknh d:axh eSaus ;g fu.kZ; dj fy;k gS vpkud 4 vxLr 1990 dks Hkkjrh us gekjh ethZ ds f[kykQ ujsUnz flag ls 'kknh vk;Z lekt esa dj yh vkSj mlds lkFk jgus yx x;h 'kknh ds ckn ujsUnz flag ,d eMZj dsl esa ok.VsM jgk------- Hkkjrh iSlksa ds fy;s ges'kk ekSrkt jgrh Fkh ;gka rd fd og ?kj esa lkeku Hkh ugha ykrk Fkk Hkkjrh lkeku ds fy;s esjh ekWa ls iSls ykrh rks mldh Hkh 'kjkc ih tkrk Fkk ujsUnz flag us esjh cghu ds lkjs ykWu ysdj jde 'kjkc esa mM+k nh blds 'kknh ls igys Hkh dbZ yM+fd;ksa ls uktk;t lEca/k FksA -------- esjh cghu dk dRy fd;k gS og igys Hkh 'kknh 'kqnk Fkk vkSj viuh vkSjr dks NksM+ j[kh gSA " 40. Upon careful perusal of the statements of the mother and brothers of the deceased, it appears that the accused-petitioner and the deceased were facing financial crisis and the accused-petitioner was habitual of consuming liquor and one thing is established that the deceased as well as the accused-petitioner married against the wishes of their parents and since then the parents were not having good relation with the deceased and the accused-petitioner. 41. Immediately after death Kum. Suman, the friend of the deceased, in her statement has stated that on the date of the incident the deceased was quite normal. 42. After carefully going through the statements of the witnesses, it appears that none of the witnesses stated that soon before death the accused-petitioner had demanded dowry or asked for money and not a single witness deposed in the statement that the deceased was subjected to cruelty by her husband or any relative of her husband for or in connection with any demand for dowry. 43. 43. Thus, in the considered view, the basic ingredients for constituting offence under Section 304B Indian Penal Code are (1) that the death of a woman should be caused by burns or bodily injury or otherwise than under normal circumstances; (2) that such death should have occurred within seven years of her marriage; (3) that soon before death she was subjected to cruelty or harassment by her husband or any relative of her husband; and (4) that such cruelty or harassment should be for or in connection with demand for dowry. 44. So far as the first ingredient is concerned, death of the deceased was caused by hanging and the death cannot be said to be under normal circumstances and the second ingredient is also established that the death occurred within seven years of marriage, but as regards third essential ingredient, soon before death she was not subjected to cruelty or harassment by her husband or any relative of her husband for or in connection with demand of dowry. 45. Similarly, not a single witness or any relative including the mother and brothers of the deceased stated to the police about deceased being subjected to cruelty or harassment by her husband for or in connection with any demand for dowry soon or before her death and, therefore, there was no valid reason to frame charge against the accused under Section 304B Indian Penal Code. 46. Hon'ble the Supreme Court in the case of Sunil Bajaj (supra), while dealing with the provisions of Section 304B Indian Penal Code, observed as under:- Penal Code, 1860 Section 304-B Dowry death- Ingredients of- It being a deeming provision and having regard to gravity" "of punishment prescribed, court should take greater care and caution in examining the evidence and reaching its conclusion- On facts held, prosecution failed to establish two essential ingredients viz. soon before death, the deceased had been subjected to cruelty or harassment by her husband or relatives and the same was for or in connection with demand of dowry- Hence accused husband cannot be convicted under Section 304-B."" 47. soon before death, the deceased had been subjected to cruelty or harassment by her husband or relatives and the same was for or in connection with demand of dowry- Hence accused husband cannot be convicted under Section 304-B."" 47. Further the Hon'ble Supreme Court in the case of Mungeshwar Prasad Chaurasia (supra), has observed thus:- Penal Code, 1860- Sections 304-B & 498-A and 201- Dowry death- Harassments with demand for dowry soon before her death- Some of the witnesses stating that soon after marriage of the deceased, the appellants (father-in-law and mother-in- law of deceased) asked for more dowry but none of the witnesses stated that soon before the death of the deceased, appellants did anything so as to bring them within the sweep of Sections 304-B & 498-A. Hence, their conviction thereunder, held, cannot be sustained- As Section 201 cannot be separated from the substantive offences, it is an idle exercise to consider whether conviction under Section 201 can independently be fastened with the appellants."" 48. In the case of Gurucharan Kumar (supra), Hon'ble the Supreme Court observed in the following terms:- The letters written by G (deceased) to her mother (PW 4), sister and friend as well as the letters written by PW 4 to her daughter and son-in-law, when considered do not support the prosecution case that G was being subjected to torture and harassment or was being constantly taunted for not bringing a car in dowry. On the contrary, it appears from these letters that she was loved by all members of her matrimonial family who showered affection on her. The only indication, if at all, is about her finding it difficult to adjust in the new surroundings for which she found herself guilty for entertaining such feelings. She has referred to the freedom that she enjoyed in her parental home but now feels suppressed because she cannot do all that she used to do in her parental home. The only indication, if at all, is about her finding it difficult to adjust in the new surroundings for which she found herself guilty for entertaining such feelings. She has referred to the freedom that she enjoyed in her parental home but now feels suppressed because she cannot do all that she used to do in her parental home. Further, the fact that she was keen to get her brother-in-law married and was requesting her sister to find a good match, if at all, is indicative of the fact that she found her husband, father-in-law, mother-in- law and other members of the family to be good-natured persons, and was therefore keen to get her brother-in-law married." That apart, the suicide note also does not contain any statement which can be used against the accused, as there is nothing in the suicide note which may even remotely suggest that G was ending her life because of the maltreatment meted out to her by the members of her matrimonial family. In fact the note says that no one was responsible for what she was doing, and that what she was doing was entirely of her own will. Further, if the parents of the deceased thought of sending her an old car after repairs, it does not necessarily follow that the car was being sent in response to any demand by the husband or in-laws of the deceased. The case projected by the prosecution at the trial about the demand of a car cannot be accepted. Even the story about PW 1 (father of the deceased) having asked PW 5 to get a demand draft prepared for the purchase of a car appears to be an afterthought because PW 5 admitted that he neither got a demand draft made nor was he paid any amount by the father of the deceased for the purpose. Moreover, no one informed the deceased that demand draft was about to be sent for the purchase of a car. In normal circumstances one would have expected that the deceased would have been informed of the fact that a demand draft was being sent for the purchase of a car, particularly when it is the case of the prosecution that G was under a terrible strain and depression on account of her being consistently taunted for not bringing a car in dowry. That apart, PW 1 has not mentioned about the decision to send a demand draft for purchase of a car either in the FIR or in his two subsequent statements before the police. Moreover, this story is not consistent with the version given out in the letter Ext. P-33 of 13-7-1990 wherein it was stated that a car was being repaired for being sent to G. Thus, the evidence on record does not suggest that G was subjected to cruelty or harassment by her husband or by her father and motherin- law for or in connection with any demand for dowry. G may have committed suicide, as she was unable to adjust herself in the changed surroundings of her matrimonial home being a highly emotional person. Hence, the prosecution has failed to prove its case beyond reasonable doubt." 49. Thus, after carefully examining the ratio decided by the Hon'ble Supreme Court in the aforementioned cases and upon thorough consideration of the evidence available on the record, the deceased was not subjected to cruelty or harassment by her husband or any relative of her husband in connection with demand for dowry and the prosecution failed to prove its case beyond reasonable doubt. 50. Hon'ble the Supreme Court in the case of State of Rajasthan v. Teg Bahadur And Others (supra), while considering the ingredients of Section 304B Indian Penal Code, observed thus:- Penal Code, 1860- Section 304-B-Dowry death- Ingredients of Section 304-B-Effect of presumption under Section 113-B of Evidence Act- Initial burden of proof lies on prosecution- Burden would not shift on accused merely on the basis of prosecution's allegation that death had occurred within seven years of marriage without even proving the required preliminary facts- On facts held, one of the essential ingredients of Section 304-B viz. demand of dowry could not be established by prosecution- Hence respondent husband of the deceased cannot be convicted under Section 304-BEvidence Act, 1872 Section 113B."" 51. demand of dowry could not be established by prosecution- Hence respondent husband of the deceased cannot be convicted under Section 304-BEvidence Act, 1872 Section 113B."" 51. Similar view has been taken by the Hon'ble Supreme Court in the case of Harjit Singh (supra), wherein it has been observed as under:- " "By virtue of Section 304B Indian Penal Code a legal fiction has been created in the said provision to the effect that in the event it is established that soon before the death the deceased was subjected to cruelty or harassment by her husband or any of his relatives; for or in connection with any demand of dowry, such death shall be called dowry death, and such husband or relative shall be deemed to have caused her death. From a conjoint reading of Section 304-B of the Penal Code and Section 113B of the Evidence Act, it will be apparent that a presumption arising thereunder will operate if the prosecution is able to establish the circumstances as set out in Section 304-B of the Penal Code. (Paras 16 and 17)" The ingredients of the aforementioned provisions are:- (1) That the death of the woman was caused by any burns or bodily injury or in some circumstances which were not normal; (2) such death occurred within 7 years from the date of her marriage; (3) that the victim was subjected to cruelty or harassment by her husband or any relative of her husband; (4) such cruelty or harassment was for or in connection with the demand of dowry; and (5) it is established that such cruelty and harassment was made soon before her death. Even proceeding on the basis that in this case prosecution has established the case of pyament of dowry to the extent of Rs. 5000, the question still would remain as to whether the demand for dowry was made soon before the deceased was treated cruelly or harassed by the appellant. The brother of the deceased was not examined. It was, therefore, not proved that any apprehension was expressed by the deceased that she would be killed during delivery of the child. Concededly, there is no evidence on record to show that the deceased was subjected to any cruelty or harassment between April 1988 and the date of her death. The brother of the deceased was not examined. It was, therefore, not proved that any apprehension was expressed by the deceased that she would be killed during delivery of the child. Concededly, there is no evidence on record to show that the deceased was subjected to any cruelty or harassment between April 1988 and the date of her death. In the aforementioned situation, the presumption arising either under Section 304-B or the Penal Code or Section 113B of the Evidence Act could not be invoked against the appellant. The prosecution, therefore, must be held to have failed to establish any case against the appellant. In the case of unnatural death of a married woman as in a case of this nature, the husband could be prosecuted under Sections 302, 304-B and 306 of the Penal Code. Omission to frame charges under Section 306 in terms of Section 215 of the Code of Criminal Procedure may or may not result in failure of justice, or prejudice the accused. It cannot, therefore, be said that in all cases, an accused may be held guilty of commission of an offence under Section 306 of the Penal Code wherever the prosecution fails to establish the charge against him under Section 304-B thereof. Moreover, ordinarily such a plea should not be allowed to be raised for the first time before the court unless the materials on record are such which would establish the said charge against the accused. Before invoking the provisions of Section 306 Indian Penal Code, it is necessary to establish that: (i) the deceased committed suicide, and (ii) she had been subjected to cruelty within the meaning of Section 498A Indian Penal Code. Only in the event those facts are established, a presumption in terms of Section 113A of the Evidence Act could be raised. In the instant case, the prosecution has not been able to prove that the deceased was subjected to cruelty within the meaning of Section 498A Indian Penal Code. No case that the deceased committed suicide was also made out. The ingredients of Sections 306 and 304-B Indian Penal Code are different and distinct. In any event, no evidence has been brought on record to show that there has been any act of omission or commission on the part of the accused, before the death of the deceased to demonstrate that the appellant was responsible for the same. The ingredients of Sections 306 and 304-B Indian Penal Code are different and distinct. In any event, no evidence has been brought on record to show that there has been any act of omission or commission on the part of the accused, before the death of the deceased to demonstrate that the appellant was responsible for the same. There is no evidence to sustain the observation of the High Court that when her father came to see her, he must have been insulted or felt hurt as she might have been subjected to harassment." 52. I have carefully examined the ingredients of dowry death as per the provisions of Section 304B Indian Penal Code with the help of the evidence available on the record and in view of the ratio decided by the Hon'ble Supreme Court, this Court is of the view that the prosecution has utterly failed to prove its case beyond reasonable doubt and no case of dowry death against the accused-petitioner is made out and, therefore, charge framed against the petitioner under Section 304B Indian Penal Code deserves to be quashed. 53. In the light of the observations made herein above, the present criminal revision petition stands allowed. The order impugned dated 10.12.2009 passed by the Additional District & Sessions Judge (Fast Track) No.2, Jaipur City, Jaipur in Sessions Case No. 44/2001 is hereby quashed and set aside. Record be sent back forthwith. Revision allowed. *******