JUDGMENT 1. Appellants have filed this appeal against the judgment dated 21.11.2002, passed by Special Judge (NDPS) and Additional Sessions Judge, Gwalior, in Sessions Trial No.27812000, convicting them under section 498A and 304B of the Indian Penal Code and sentencing them to rigorous imprisonment for two years with fine of Rs.l ,000/- and rigorous imprisonment for seven years, on each count respectively Sentence of imprisonment has been directed to run concurrently. 2. In short, the facts of the case are that appellant Rajesh was married to Seema @ Sonam, the daughter of complainant Darshanlal (PW4)' on 3.12.1995 by Hindu rites and rituals in the Chamber of Commerce, Gwalior. Darshanlal (PW4) had given dowry according to his capacity, but, after the marriage, Rajesh, his father Jaipal Das and his mother appellant Smt. Pushpadevi started harassing deceased and subjecting her to cruelty for not meeting the demand of dowry. When complainant sent his son Sanjay Kumar to fetch Seema from Gwalior, appellants did not send her and demanded dowry. Darshanlal, who lived in Aligarh, came to Gwalior and after satisfying appellants, took Seema to Aligarh. At Aligarh, Seema disclosed to her mother Sushila and other persons that her in-laws used to harass her because of less dowry. Though Seema used to visit her nuptial home and her parents' home, but, in the year 1999, appellant Rajesh took Seema to Aligarh and left her saying that unless Rs.50,000/- were not given to him, he would not take Seema to Gwalior. For about five months, Seema lived at her parents' house, but, thereafter, appellant Rajesh and his father Jaipal Das went to Aligarh and, after assuring the parents of Seema that they would keep her cordially, took her to Gwalior. On 6.5.2000, complainant Darshanlal (PW4) received information that Seema had died. He came to Gwalior and saw her dead body kept on ice. He went to Police Station, Kampoo and lodged murg report (E.P-6). 3. Police conducted inquest proceedings and prepared inquest memorandum (Ex.P-3). Dead body of Seema was sent to J.A. Hospital, Gwalior, for post-mortem examination where Dr. J.N. Soni (PW3) conducted post-mortem examination vide his report EX.P-2. He opined that death of deceased was caused due to respiratory failure as a result of poisoining. He preserved viscera and pieces of liver and spleen for examination in the Forensic Science Laboratory. Dead body of Seema was sent to J.A. Hospital, Gwalior, for post-mortem examination where Dr. J.N. Soni (PW3) conducted post-mortem examination vide his report EX.P-2. He opined that death of deceased was caused due to respiratory failure as a result of poisoining. He preserved viscera and pieces of liver and spleen for examination in the Forensic Science Laboratory. He also found two abrasions on the body of deceased just below the coastal region. 4. After investigation, charge-sheet was filed and the case was committed for trial. 5. Learned Special Judge, relying mainly on the evidence of Mahesh Kumar (PW1), Ekta (PW2), Darshanlal (PW4), Nandlal (PW5), and the medical evidence of Dr. J.N. Soni (PW3) held the appellants guilty of charge under sections 498A and 304B of the Indian Penal Code, convicted and sentenced them accordingly. 6. Since appellant Jaipaldas died during pendency of the appeal, his name was deleted from the appeal. 7. Shri Sanjay Gupta, learned counsel for the appellant, submitted that the evidence regarding demand of dowry from the deceased or her relations was inconsistent and vague. There was no evidence that deceased was subjected to cruelty or harassment soon before her death. According to him, deceased felt frustrated because she did not bear children even after five years of her marriage, though she was provided adequate treatment, but, due to sheer frustration, probably, she consumed poison. He submitted that appellants were implicated because of some dispute about the payment of expenses of marriage to complainant. Shri JM. Sahni, learned counsel for the State, and Shri Lokesh Achhara, learned counsel for the complainant, on the other hand, justified and supported the conviction of appellants. 8. I have gone through the entire evidence on record. 9. It has not been disputed that marriage of deceased Seema took place with appellant Rajesh on 3rd December, 1995. It is amply established from the evidence of Mahesh Kumar (PW 1), Ekta (PW2)and the father of deceased Darshanlal (PW4) that deceased was married to Rajesh in the month of December, 1995. 10. It has also not been disputed that the death of deceased occurred otherwise than under normal circumstances. Darshanlal (PW4) deposed that on getting information that his daughter Seema had died at Gwalior, he went there and saw her dead body kept on ice. He saw blueish tint on her face. 10. It has also not been disputed that the death of deceased occurred otherwise than under normal circumstances. Darshanlal (PW4) deposed that on getting information that his daughter Seema had died at Gwalior, he went there and saw her dead body kept on ice. He saw blueish tint on her face. Since he felt that her death was not natural, he went to police station and lodged the report. CSP Anil Singh Kushwaha (PW7) went at the spot drew inquest memorandum (Ex.P-3) and sent the dead body of deceased for post-mortem examination. Dr. J.N. Soni (PW3) of JA. Group of Hospitals of Gwalior deposed that on 7.5.2000 he along with a team of doctors conducted the post-mortem examination of the body of deceased. He found the face of deceased blue. Her lips and nails were also blue. He also found two external injuries on the body of deceased – (1) Abrasion 11 x2.5 by the sided of right rib. (2) Two abrasions 2.5 x 2 cm. 5 cm. above injury No.5 vertical in direction. On internal examination, he found 50 cc reddish brown liquid in the stomach, from which smell like saephas emananted. There was bleeding in the wall of stomach. The death of deceased was due to failure of her respiratory system due to poison. Thus, it was established that deceased Seema died otherwise than under normal circumstances within seven years of her marriage. 11. The next question before me is whether soon before her death deceased was subjected to cruelty or harassment by the appellants, who were her husband and mother in law for, or in connection with, any demand of dowry. 12. Learned counsel for the appellants argued that the prosecution witnesses made improvement in their evidence before the Court. Their evidence was inconsistent and contradictory and was not worthy of reliance. 13. No doubt Mahesh Kumar (PW1), Darshanlal (PW4) and Nandlal (PW5) deposed that the system of dowry is not prevalent in their community, but merely by it, it cannot be held that appellants did not make any demand of dowry. It is true that no charges were framed against the appellants under the provisions of Dowry Prohibition Act, but for ascertaining that dowry was demanded by them and the deceased was subjected to cruelty soon before her death in connection with the demand of dowry, the evidence led by the prosecution has to be examined. It is true that no charges were framed against the appellants under the provisions of Dowry Prohibition Act, but for ascertaining that dowry was demanded by them and the deceased was subjected to cruelty soon before her death in connection with the demand of dowry, the evidence led by the prosecution has to be examined. Mahesh Kumar (PW 1), who knew both the parties, stated that there was dispute between accused Jaipal Das and complainant Darshanlal about the dowry in respect of the marriage of the deceased. Whenever he met Seema, she told to him that her in-laws harassed her for dowry. He admitted that he never asked to accused persons that for what purpose they were demanding Rs.50,000/-. Though there was no customary to bear half of the expenses of marriage, but parties were free to settle in respect to that. He did not know how the parties bore the marriage expenses. When this witness was confronted with his police statement (Ex.D-l), it was found missing that deceased told him that her in-laws harassed her for not giving dowry. 14. Darshanlal (PW4), father of deceased, in his chief examination deposed that his son Sanjay, who had gone to bring deceased from her nuptial home, disclosed to him that in-laws of Seema were demanding money. When he went to Gwalior himself, accused Jaipal Das demanded TV, Motorcycle and fridge saying that these articles were not given in the marriage. He deposed that he gave Rs.20-25,000/- to him. His daughter Seema told to him that her in-laws used to manhandle her for dowry. He further deposed that in August 1999 appellant Rajesh went to Aligarh with Seema and told that if Rs.50,000/- were not given to him, he would not take Seema with him. Seema then lived at his house at Aligarh for about five months, thereafter accused Jaipal Das and Rajesh took Seema back after assuring that they would neither demand anything nor harass Seema. On 6th May he received information that Seema died. 15. Learned counsel for the appellant submitted that there was no complaint from the side of parents of deceased that during the aforesaid intervening period of five months deceased was subjected to any kind of cruelty, harassment or any demand of dowry was made. On 6th May he received information that Seema died. 15. Learned counsel for the appellant submitted that there was no complaint from the side of parents of deceased that during the aforesaid intervening period of five months deceased was subjected to any kind of cruelty, harassment or any demand of dowry was made. He pointed 0 It that in respect of demand of TV, Motorcycle and fridge, Darshanlal (PW4), made improvements before the Court, as the fact about the demand of aforesaid articles were not mentioned by him in Murg report (Ex.P-6) and his police statement (Ex.D-3). He admitted that he made statement about the demand of these articles in the Court only. He also admitted that he did not mention in the report (Ex.P-6) that he gave Rs.20-25,000/ to accused Jaipal Das. Though he stated that he had disclosed this fact in his police statement (Ex.D-3), but this fact was found missing in his police statement. The fact that deceased disclosed to him that his in-laws used to beat her for insufficient dowry was also found missing in his police statement (Ex.D-3). This witness was further confronted with the first information report (Ex.P-6) wherein he did not disclose that in the month of August 1999 appellant Rajesh went to Aligarh with the deceased and demanded Rs.50,000/- and intimidated that in case money was not given, he would not take deceased with him. Facts that accused Jaipal Das and Rajesh went to Aligarh to fetch deceased and assured Darshan (PW 4) that they would not make any demand in future and would not harass deceased, were also found missing in his police statement (Ex.D-3) and first information report (Ex.P-6). 16. Learned counsel for the appellants drew my attention to letter (Ex.P-1) purported to have been written by deceased about her harassment at the hands of accused persons. Darshanlal (PW4) deposed that he had received said letter in an envelope, but the envelope was lost. Though Darshan stated that this letter was in the handwriting of the deceased and he had handed over this letter to police, but this letter was not sent by police for comparison of its writing with the standard handwriting of deceased to handwriting expert. Ekta (PW2), sister of deceased, though deposed that the handwriting of letter (Ex.P-1) was of his sister, but she admitted that her sister never wrote any letter to her. Ekta (PW2), sister of deceased, though deposed that the handwriting of letter (Ex.P-1) was of his sister, but she admitted that her sister never wrote any letter to her. She read the above letter when it was received by her father. On perusal of letter (Ex.P-1) it is revealed that it was written on 21.3.1997 whereas deceased died on 6.5.2000. 17. Ekta (PW2) stated that in-laws of deceased used to demand Rs.50,000/- and harass her. These facts were disclosed to her by deceased herself, however, from her statement, it did not appear that demand was made or cruelty was meted out to deceased as demand of dowry soon before the unnatural death of deceased. 18. Nandlal (PW5), grand father of deceased, deposed that whenever deceased went to Aligarh, she told to her that her mother-in-law, father in-law and husband used to harass her for dowry. He deposed that in the month of August 1999 when Rajesh came to Aligarh, he demanded Rs.50,000/-. He left deceased there and went back to Gwalior. Though omission about these facts in his police statement (Ex.D-2) was attempted to be proved in the cross-examination of this witness, but on perusal of EX.D-2 these facts were found mentioned therein. 19. On appraisal of the evidence of the aforesaid witnesses, in my opinion, it is clearly established that after the marriage of deceased with appellant Rajesh, appellants used to make demand of Rs.50,000/- and harass and subject deceased to cruelty for not meeting the said demand. However, it remains doubtful whether the demand of money and harassment of deceased continued till the end of her life. According to Darshanlal (PW4) and Nandlal (PW5), in the month of August demand was made about Rs.50,000/-, but after about five months, Jaipal Das and Rajesh went to Aligarh and carried the deceased back after extending assurance that they would not make any demand and would not harass deceased. Deceased died on 6.5.2000. There is no evidence on record to indicate that after the patch up of dispute in or around the month of January 2000 appellants subjected deceased to cruelty for or in connection with demand of dowry. 20. Deceased died on 6.5.2000. There is no evidence on record to indicate that after the patch up of dispute in or around the month of January 2000 appellants subjected deceased to cruelty for or in connection with demand of dowry. 20. The primary requirements in finding the appellants guilty of the offence under section 304B are that death of deceased was caused by bum or bodily injuries or 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 or for in connection with, any demand of dowry. 21. Though from the evidence of Dr. J.N. Soni (PW3), it is revealed that two abrasions were found on the body of deceased below the coastal region, but those injuries were opined to be simple in nature. Even if it is assumed that these injuries were inflicted by appellants to deceased, there is no evidence to presume that the said injuries were caused in connection with demand of dowry. Even for invoking presumption about a dowry death under section 113B of the Evidence Act, it is imperative for the prosecution to prove that soon before her death deceased was subjected to cruelty for or in connection with demand for dowry. In the absence of any such evidence it is not permissible under law to take recourse to legal presumption envisaged under section l13B of the Evidence Act. 22. In view of the aforesaid circumstances, in my opinion, appellants cannot be convicted of the offence under section 304B of the Indian Penal Code, but this would not rescue them from the offence under section 498A of the Indian Penal Code for which there is overwhelming evidence, particularly of Ekta (PW2), Darshanlal (PW4) and Nandlal (PW5). 23, In view of the above, conviction and sentence of appellant under section 304B of the Indian Penal Code is set aside. However, their conviction under section 498A of the Indian Penal Code is affirmed. 24. As far as the question of sentence is concerned, appellants have been sentenced to rigorous imprisonment for two years with fine of Rs.1,000/- to each. No ground to reduce the sentence of appellants Rajesh is made out. Accordingly, his sentence under section 498A of the Indian Penal Code is affirmed. 24. As far as the question of sentence is concerned, appellants have been sentenced to rigorous imprisonment for two years with fine of Rs.1,000/- to each. No ground to reduce the sentence of appellants Rajesh is made out. Accordingly, his sentence under section 498A of the Indian Penal Code is affirmed. So far as sentence of appellant Pushpadevi is concerned, learned counsel for the appellants submitted that the incident had occurred in the year 2000. At the time of incident the age of Pushpadevi was 50 years. Now she has grown old and attained the age of 61 years. She is heart patient. To substantiate his submission, learned counsel has produced her medical papers indicating that in connection with her heart disease she remained hospitalized recently. She has already remained in jail for about three months and 6-7 days. In this view of the matter, I find substance in the submission made by the learned counsel for the appellants to reduce her sentence to the period of sentence already undergone by her, however, with enhancement of the amount of fine. ' 25. Accordingly, sentence of imprisonment of appellant Pushpadevi is reduced to the period of sentence undergone by her. However, the sentence of fine of Pushpadevi is enhanced to Rs.l0,000/-. The amount of fine already deposited shall be adjusted in the calculation of total amount of fine. Remaining amount of fine shall be deposited by appellant Pushpadevi within a period of 45 days in the trial Court. On failure to deposit of fine amount, Pushpadevi shall suffer rigorous imprisonment for six months. 26. Appeal partly allowed.