JUDGMENT As per Hon'ble Shri Prashant Kumar Mishra, J. :- 1. In this criminal appeal, the appellant has challenged legality and validity of his conviction under Section 304-B of the IPC and sentence of R.I. for 5 years. 2. Deceased Arti Mishra @ Rama Bai committed suicide on 24-2-1993 by setting herself ablaze after pouring kerosene oil. The deceased was married with the appellant on 1-7-1988 and they had a girl child out of the wedlock in December, 1990. 3. The case of the prosecution, in short, is that the deceased was living with her father-in-law, mother-in-law, sister-in-law (Nanad) and her husband in her matrimonial home. However, on account of dispute the appellant and the deceased started residing separately at Kachharipara, Kawardha from December, 1991. She was treated with cruelty for demand of dowry. Her father died after 2 months of the marriage and the demand was made from her mother Mithilesh Bai (PW-l) and her brother (brother-in-law of the appellant) Ram Prakash Dubey (PW-2). 4. After completion of investigation, charge sheet was filed and the trial Court framed the charges under Section 304-B and in the alternative, under Section 306 of the IPC. The prosecution examined 14 witnesses to bring home the charges. The appellant abjured his guilt, however, he did not examine any defence witness. . 5. Learned Senior Counsel appearing on behalf of the appellant argued that the charge under Section 304-B or under Section 306 of the IPC is not made out and the prosecution has utterly failed to submit any reliable evidence to prove the charge. According to him, there is absolutely no demand of dowry and from the letters written by the deceased, it would clearly appear that she had some problems with her mother-in-law and the appellant is not at all responsible for her death. He would also submit that the deceased had a suspicion on the appellant that he had an affair with one Ragini and that may be an immediate cause for commission of suicide, however, that would not constitute an offence under Section 304-B or 306 of the IPC. He would also submit that the deceased had a suspicion on the appellant that he had an affair with one Ragini and that may be an immediate cause for commission of suicide, however, that would not constitute an offence under Section 304-B or 306 of the IPC. After elaborately pointing out the contradictions and omissions in the evidence of witnesses, it has been submitted by him that even if it is found that there was some demand to augment his business, the same would not constitute demand of dowry soon before the death and, therefore, necessary ingredients of offence under Section 304-B or 306 of the IPC are missing. He has prayed for setting aside the conviction and sentence imposed on the appellant. 6. There is no dispute that the deceased committed suicide on 24-2-1993 by setting herself ablaze after pouring kerosene oil and that the death has taken place within 7 years of marriage. This Court is, therefore, required to appreciate the evidence and examine as to whether the death was a result of demand of dowry so as to constitute an offence under Section 304-B of the IPC. The trial Court has recorded a finding that the deceased was demanding Rs.35,000/- for starting poultry business, however, PW-l has handed over only Rs.5,000/-. Coupled with this, the deceased was meted with other kinds of misbehaviour/cruelty and thus, charge under Section 304-B of the IPC is proved. 7. This Court shall now examine the evidence with regard to demand made by the appellant and whether it constitutes demand of dowry and whether the demand was made 'soon before death'. 8. PW -1 Mithilesh Bai is the mother of the deceased. In her examination in chief, she says that the mother of the appellant demanded Rs.50,000/- for the appellant for starting some business. She says that 'Nanad' and 'Saas' used to say that she has not brought sufficient amount and the accused used to say that she should do as per the dictates of his mother. She further says that about 4 years back, the appellant had demanded Rs.35,000/- for starting poultry business, however, she could give only Rs.5,000/-. This witness was examined on 21-12-1993 and the period 4 years prior to this date would mean the demand of Rs.35,OOO/- for starting poultry business was made some times in November and December, 1989. She further says that about 4 years back, the appellant had demanded Rs.35,000/- for starting poultry business, however, she could give only Rs.5,000/-. This witness was examined on 21-12-1993 and the period 4 years prior to this date would mean the demand of Rs.35,OOO/- for starting poultry business was made some times in November and December, 1989. According to this witness, her daughter had informed her about 8 days prior to death that after coming back to house, her husband enquires whether she had taken her meal and on saying that she would take her meal after the husband finishes, he finishes his meal and thereafter poured water on the remaining meal. When cross-examination of this witness began, learned defence counsel asked for copy of her case diary statement on which the trial Court recorded that case diary statement of this witness is not available either in the charge sheet or in the case diary, meaning thereby the statement of this witness under Section 161 of the Cr.P.C. was not recorded. 9. In the matter of Ram Lakhan Singh and others Vs. The State of Uttar Pradesh it has been held that a witness who never figured during the investigation cannot be given any credence because he is giving statement for the first time in the Court and the accused is deprived of an opportunity of effective cross-examination. The following has been laid down in para-37 of the judgment: "37. It is true that no enmity or grudge is suggested against this witness, but we find that this witness was not even examined by the police nor was he cited in the charge-sheet. In a grave charge like the present, it will not be proper to place reliance on a witness who never figured during the investigation and was not named in the charge sheet. The accused who are entitled to know his earlier version to the police are naturally deprived of an opportunity of effective cross-examination and it will be difficult to give any credence to a statement which was given for the first time in court after about a year of the occurrence. We cannot, therefore, agree that the High Court was right in accepting the evidence of this witness as lending assurance to the testimony of other witnesses on the basis of which alone perhaps the High Court felt unsafe to convict the accused." 10. We cannot, therefore, agree that the High Court was right in accepting the evidence of this witness as lending assurance to the testimony of other witnesses on the basis of which alone perhaps the High Court felt unsafe to convict the accused." 10. The trial Court has thereafter considered the evidence of PW -11 Shiv Prakash Dubey, who is brother of the deceased. In para-l of cross-examination, he says that in the year 1988 the mother and the younger brother of the appellant had come to their house and demanded Rs.50,OOO/-for the appellant for opening Timber Shop (Lakdi Tal), however, no amount was handed over to the mother and brother of the appellant. In para-2, he says that her mother-in-law and• ' sister-in-law are not treating her well and also not giving sufficient meal. He again says that for failure to hand over some amount for opening Timber Shop, her mother-in-law and sister-in-law are troubling her. According to this witness, the accused came to their residence after 13-14 months and demanded Rs.25-30,000/- for opening of "Dhaba". However, his mother gave only Rs.5,000/- Even if this evidence is believed, the period of 13-14 months after the marriage would again come to November and December, 1989 which corroborates the evidence of PW -1, the mother, that the appellant's mother was demanding Rs.35,000/- for opening of poultry farm. In any case, the demand for starting business was made in November/December, 1989. In para-5 of examination in-chief, he says that after 4-5 months from her attempt to commit suicide in December, 1991, they received a letter from the deceased. This letter (Ex.P/5) is of 12th May, 1990. About 10 days from 1th May, 1990 the appellant came to their residence to take back the deceased and during this visit, he demanded Rs.15,000/- for repairing of tractor, however, Rs.5,000/- was handed over to him. If this witness is believed, this demand of Rs.15,000/- for repairing of tractor was made in May/June, 1990. In para-II of his cross-examination, this witness says that on all the 3 occasions amount was handed over to the appellant by his mother, first time for starting poultry farm business, second time for starting "Dhaba" and third time for repairing of tractor and on each occasion, an amount of Rs.5,000/- was paid. In the same breath, he says that on third occasion elder brother Ram Prakash paid the amount to the appellant. In the same breath, he says that on third occasion elder brother Ram Prakash paid the amount to the appellant. 11. The said elder brother Ram Prakash has been examined as PW2. This witness makes a different story of demand of sewing machine after 8 days of marriage by the father of the appellant (father-in-law of the deceased). This witness complains of indifferent behaviour, making of sarcastic remarks etc by the mother-in-law. In later part of para-2, of the evidence, he again reiterates the demand of sewing machine. He has also made allegation of consuming liquor by the appellant. However, in the beginning of his evidence, in para-2, he says that there was no demand from the appellant's father at the time of marriage and they had stated that "you may give according to your wishes" . 12. PW -2 Ram Prakash (elder brother of the deceased) further says that amount of Rs.5,000/- paid to the appellant for the last time was 13 months prior to the delivery of girl child by his sister. The girl child was born in December, 1990. The period of 13 months from this date would again come to November/ December, 1989. In para-l0 of his cross-examination, he says that after demanding money for the last time Le. in November/December, 1989, no further demand was made and that on all the occasions, demands were made from his mother and not from him. 13. However, this Court has examined the evidence of mother PW-l Mithilesh Bai, who says that she had given Rs.5,000/- only on one occasion. In para-4 of her evidence she has made categorical statement that the marriage of her daughter was fixed with the appellant because her husband (father of the deceased) was impressed with the appellant's family for the reason that well to do Brahman family is ready for the marriage without making any demand of dowry. She further says in this paragraph of her cross-examination that when her husband informed the appellant's father that he is suffering from illness from long time and cannot make proper arrangement, the father of the appellant said that 'you only arrange for Kanyadan and the marriage will be performed as per your wishes'. 14. Coming back to the evidence of PW-2 Ram Prakash. 14. Coming back to the evidence of PW-2 Ram Prakash. He says in para-l 0 of his cross-examination that his deceased sister never demanded any amount meaning thereby that she was never asked by the appellant or any of the in-laws to bring money from her parental house. He further says that the appellant always said that if some amount is handed over for doing any business, it will be good for him, With regard to demand of sewing machine soon after the marriage, he admits that such statement is not available in his case diary statement. This witness is a police constable and the prosecution has seized two letters of the deceased from him. This witness also makes statement in para-14 of his cross-examination that whatever was gifted to the deceased sister at the time of marriage was handed over on their own meaning thereby that there was no demand from the appellant or his family members. 15. To appreciate other evidence of witnesses who are not family members, this Court has gone through the evidence of PW-7 D.S. Rathore who has proved that on an earlier occasion the deceased tried to commit suicide in December, 1991 and an offence under Section. 498-A of the IPC was registered against the appellant and family members, however, the deceased changed her statement and no offence was found to be made out and closure report was submitted vide Ex.-P/12. 16. PW-8 Ramesh Kumar is the neighbour, who reached to the spot immediately after the deceased committed suicide. This witness has stated that after opening of the door, when the accused came, he asked the accused as to how this happened, the accused said that it should not have happened in an ordinary dispute and started crying. In cross-examination, be says that he has never heard any quarrel between the accused and the deceased. 17. There is another piece of evidence on record which needs to be considered. The prosecution has seized two letters written by the deceased, one is Ex.-P/5 dated 12-5-1990 and second one is Ex.-P/l dated 22nd December, 1992. In both the letters, there is absolutely no whisper about demand of dowry. The first letter (Ex.-P/5) was written on 12-5-1990 and probably by this time they had separated from the family. In the first part of the letter, she writes that they have shifted to the new house on 21-4-1990. In both the letters, there is absolutely no whisper about demand of dowry. The first letter (Ex.-P/5) was written on 12-5-1990 and probably by this time they had separated from the family. In the first part of the letter, she writes that they have shifted to the new house on 21-4-1990. In the last part of this letter, she refers to her mother-in-law as "Moti Bhais" (fatty figure). In the second letter (Ex.-P/1) dated 22-12-1992, she refers to some family members of her in-laws' family as 'Bitch' (Kutiya), however, again there is no mention l of any demand of dowry. 18. There is another angle in the case, which is born out from the evidence of PW -2 Ram Prakash wherein in paras-15 & 16 of his cross-examination, he says that his deceased sister was suspecting that the accused had an affair with a girl Ragini, who used to reside in the neighbourhood and was frequently visiting their house. However, PW-11 Shiv Prakash Dubey, another brother of the deceased, has made statement that the accused had no affair with Ragini. 19. In any case, the prosecution has not come up with a case that this was the cause for committing cruelty or for the deceased to commit suicide. 20. Before reaching to any finding in the given set of evidence, this Court shall consider the law laid down by the Supreme Court as to under what circumstances it can be said that the husband or any of his relative has committed offence under Section 304-B of the IPC. 21. In the matter of Sunil Bajaj Vs. State of MP'2, the Hon'ble Supreme Court has held that in order to convict an accused for offence under Section 304-B of the IPC, the following essentials must be satisfied: (1) "The death of a woman must have been caused by bums ~r bodily injury or otherwise than under normal circumstances; (2) Such death must have occurred within 7 years of her marriage; (3) Soon before her death, the women must have been subjected to cruelty or harassment by her husband or by relatives of her husband; (4) Such cruelty or harassment must be for or in connection with demand of dowry." 22. The Supreme Court further observed in para-1 0 of the judgment that apart from general, vague and inconsistent statements of interested and motivated witnesses being parents and brothers of the deceased, there is no evidence of demand of dowry or subjecting the deceased to cruelty for, or in connection with dowry; there was no demand of dowry at the time of marriage in 1991; there was no complaint of demand of dowry in the letter written by the deceased to her father and brother or in the another letter said to have been written soon before her death. It was further found that conduct of the appellant (in the case before the Supreme Court) bringing the girls of bad character to his house and those girls troubling the deceased appear to be the cause of her misery. But there is nothing to establish that this mental cruelty was for or in connection with demand of dowry. The Supreme Court ultimately acquitted the accused of the charge under Section 304-B of the IPC. 23. In the matter of Harjit Singh Vs. State of Punjab3, the Supreme Court had an occasion to consider as to what could be the time lag to constitute offence that the deceased was subjected to cruelty or harassment "soon before death". In the said case, the marriage had taken place on 5-10-86. The deceased delivered a male child at her parents' house on 23-4-88 and died of poisoning at her matrimonial home on '26-7 -88 i.e. within 4 months from delivery of child. In this factual background, the Supreme Court held that in the absence of evidence on record to show that the deceased was subjected to any cruelty or harassment between April, 198.8 to, July, 1988, it cannot be said that she was subjected to cruelty or harassment 'soon before her death'. 24. In. the matter of Appasaheb & Am: Vs. State of Maharashtra4, it has been held that a demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. In the said case, the Supreme Court ultimately found that the demand made by the accused to meet the household expenses and for purchasing manure would not constitute demand of dowry and the, accused was acquitted 25. In the said case, the Supreme Court ultimately found that the demand made by the accused to meet the household expenses and for purchasing manure would not constitute demand of dowry and the, accused was acquitted 25. In the matter of Biswajit Halder alias Babu Halder and others Vs. State of WB.5, the Supreme Court, after having found that there is no evidence to show that there was any cruelty or harassment for or in connection with demand of dowry, held that mere evidence of cruelty and harassment is not sufficient to bring in application of Section 304-B IPC. It has been further observed that it is necessary for the prosecution to demonstrate that such cruelty or harassment was for or in connection with demand of dowry. Paras-13 & 14 of the judgment read as under: "13. If Section 304-B IPC is read together with Section 113-B of the Evidence Act, a comprehensive picture emerges that if a married woman dies in unnatural circumstances at her matrimonial home within 7 years from her marriage and there are allegations of, cruelty or harassment upon such married woman for or in connection with demand of dowry by the husband or relatives of the husband, the case. would squarely come under "dowry death" and there shall be a presumption against the husband and the relatives. 14. In this case we find that there is practically no evidence to show that there was any cruelty or harassment for or in connection with the demand of dowry. There is also no finding in that regard. This deficiency in evidence proves fatal for the prosecution case. Even otherwise mere Deepak Kumar Mishra Vs. State of M.P. (Now C.G.) (Mishra, J.) evidence of cruelty and harassment is not sufficient to bring in application of Section 304-B IPG. It has to be shown in addition that such cruelty' or harassment was for or in connection with the demand for dowry. (See ' Kanchy Komuramma v. State of A.P., 1995 Supp (4) SCC 118) Since the prosecution failed to prove that aspect, the conviction as recorded cannot be maintained." '26. Similar proposition has been laid down by the .Supreme Court in the matters of Narayanamurthy Vs. State of Karnataka and another6 (paras23,& 35) and Tarsem Singh Vs. State of Punjab' as also in Salvir Singh Vs. State of Punjab8, Kaliyapelrumal Vs. State of T.N.9, Kamesh Panjiyar Vs. Similar proposition has been laid down by the .Supreme Court in the matters of Narayanamurthy Vs. State of Karnataka and another6 (paras23,& 35) and Tarsem Singh Vs. State of Punjab' as also in Salvir Singh Vs. State of Punjab8, Kaliyapelrumal Vs. State of T.N.9, Kamesh Panjiyar Vs. State of Bihar10, and State of A.P. Vs. Raj Gopal Asawal1. 27. In the matter in hand, the following factual scenario emerges from appreciation of evidence which this Court has made in the preceding paragraphs of this judgment:- I. There. was no demand of dowry at the time of marriage. II. There was no demand of dowry in that sense of the word after the marriage. Whatever demand was made was for starting poultry business or timber shop or for repairing of tractor. III. PW-l, mother of the deceased, says that Rs.5,000/- was given only once in November/December, 1989, the marriage having taken-place in July, 1988 whereas PW-2 says that Rs.5,000/each was given on 3 occasions every time by his mother. However, he also says that the last payment was made in November/December, 1989. IV. In 2 letters (Ex.-P/5 & Ex.-P/l) dated 12-5-1990 and 22-121992 written by the deceased, there is no whisper of demand . of any dowry. In fact, there is absolutely no mention of any demand in these letters. The deceased has referred to her mother-in-law as 'Moti Bhais' (fatty figure) and Bitch (Kutiya) in these letters. V. Even demand for starting poultry business or timber shop or for repairing of tractor was not made soon before her death but almost 3 1/2 years prior to her death. 28. Applying ratio of law laid down by the Supreme Court in the aforesaid judgments, this Court is of the considered 0rinion that there was absolutely no demand of dowry by the appellant or his family members and, therefore, his conviction under Section 304-B of the IPC cannot be sustained. 29. In the result, the appeal is allowed. Conviction and sentence imposed on the appellant under Section 304-B of the IPC are set aside and he is acquitted of the said charge. The appellant is on bail. His bail bonds are discharged and he need not surrender. Appeal Allowed.