JUDGMENT 1. Accused is the appellant in this appeal. The appellant has come forward with this appeal challenging the judgment dated 29.5.2006 by the learned District Sessions Judge, Dharmapuri made in S.C. No. 18 of 2006 convicting the appellants for the offence under Section 304 B IPC sentencing to undergo rigorous imprisonment for 7 years each and also to pay fine of Rs. 1,000/- each in default to undergo three months simple imprisonment and sentencing to undergo rigorous imprisonment for three months each and fine of Rs. 1,000/- each in default to undergo three months simple imprisonment each for offence under Section 4 of the Dowry Prohibition Act. The sentence was also suspended and the appellants were released on bail, pending disposal of the appeal, on each of them executing a bond for a sum of Rs. 10,000/- with two sureties each for a like sum to the satisfaction of the learned Judicial Magistrate No. 1, Dharmapuri and on further condition that the appellants shall report before the said Court on the first working day of every month at 10.30 a.m. until further orders. 2. The following is the factual matrix of the prosecution case :- 2.1 The first accused is husband of the deceased Sumathi and the second and third accused are the mother and sister of the first accused. The deceased Sumathi is daughter of P.W.1. P.W.3 is brother of the deceased. The marriage of the first accused with the deceased was celebrated about seven months prior to the occurrence. P.W.1 lodged complaint Exhibit P-17 with the respondent police station stating that on 25.8.2001, at about 10.00 a.m. her daughter called her over phone from Dharmapuri stating that the second and third accused were demanding 10 sovereigns of gold jewels and Rs. 20,000/- cash for which P.W.1 had told that she would come and speak to them. The deceased asked her to contact the first accused who was working in a hospital. She contacted the first accused at about 12.00 p.m. over phone and asked him whether there was any problem in the house for which he replied that there was no problem and that he would look into it. On the same day at about 1.45 p.m. P.W.1 was informed that her daughter was serious and she was taking treatment in R.K.Hospital at Dharmapuri. She proceeded to Dharmapuri alongwith her relatives and learnt that her daughter died. On the same day at about 1.45 p.m. P.W.1 was informed that her daughter was serious and she was taking treatment in R.K.Hospital at Dharmapuri. She proceeded to Dharmapuri alongwith her relatives and learnt that her daughter died. At the time of marriage, she gave 10 sovereigns of gold jewels and Rs. 10,000/- cash as dowry but they further demanded 10 sovereigns of gold jewels and Rs. 10,000/- cash. There were injuries on the body of the deceased and she got doubt over the death of her daughter and hence, action may be taken against the accused persons 1 to 3. 2.2 On receipt of the complaint, P.W.12, Sub-Inspector of Police, registered a case under Section 174 Cr.P.C. and Section 498 A IPC. He lodged FIR, Exhibit P-18. Since Sumathi died within seven months from the date of marriage, he sent the FIR copy to RDO, Dharmapuri and other copies to the Court and investigating officer. P.W.11, the RDO after receiving the FIR, proceeded to the scene of occurrence on 26.8.2001 at about 10.30 a.m. and conducted inquest over the dead body since the time of receipt of the FIR was late in the night. He found injuries on the backside of the body in the middle of spine, left arm and left small finger. He enquired the witnesses including the parents of the deceased and prepared Exhibit P-15, inquest report. He gave his report, Exhibit P-16 stating that Sumathi was subjected to harassment and was done to death by the family members of her husband. He gave Exhibit P-6 requisition for conducting post mortem. PW8, the lady doctor attached to Dharmapuri Government Periampatti Hospital conducted autopsy over the corpse of the deceased and issued Exhibit P-7, post mortem certificate finding the following external injuries – (1) A burn ulcer of 10 x 5 cm. over the extentor aspect of (L) forearm of 2nd decree, irregular in shape. (2) Both the palms were reddish in colour with a few blisters of various sizes and shapes over the palms. (3) Multiple small abrasions of varying sizes and shapes were seen over (L) axilla and clavicular region, red in colour. (4) A burn ulcer over the elbow of 5 x 6 cm. reddish in colour of 2nd degree. (5) Multiple small scratches over the cubital fossa of varying shapes and sizes, skin deep. (3) Multiple small abrasions of varying sizes and shapes were seen over (L) axilla and clavicular region, red in colour. (4) A burn ulcer over the elbow of 5 x 6 cm. reddish in colour of 2nd degree. (5) Multiple small scratches over the cubital fossa of varying shapes and sizes, skin deep. (6) Multiple small scratches over the axilla and shoulder of varying shapes and sizes. (7) A linear abrasion of 5 cm x 1 cm over the (L) groin, reddish in colour. (8) Multiple small abrasions over the infrascapular, lumbar and i/gac west of varying sizes and shape, red in colour. (9) A contusion over (L) side of the neck starting from midline, obliquely placed towards the angle of mouth and ear of 10 cm x 2 cm, reddish in colour. 2.3 She extracted the internal organs and sent them for toxicological examination. Exhibit P-12 is the report from toxicology department in which it is mentioned that in the internal organs no poison was defected. In Exhibit P-13, bone case report, it is opined that hyoid bone is intact and on the skin around neck, there is a ligature present – consistent with hanging. On perusal of the above said reports, the doctor has come out with an opinion that the deceased would appear to have died of asphyxia, most probably due to hanging at about 12 to 24 hours prior to autopsy. 2.4 P.W.13, the Deputy Superintendent of Police took up the case for investigation, obtained the report of the RDO and sent the alteration report, Exhibit P-20 to the Court altering the case into one under Section 3 and 4 of Dowry Prohibition Act and under Section 304(B) IPC. He prepared observation mahazar, Exhibit P-21 and drew rough sketch, Exhibit P-19. He examined the witnesses and recorded their statements. On 29.8.2011, at 6.00 p.m., in E.B. Colony, in front of the house of one David, he arrested the second accused and recorded confession statement from her. On the basis of same, at 6.15 p.m. he went to her house and recovered iron box, plastic purse and a lemon fruit under cover of mahazar. On 10.10.2011, at 10.30 a.m., in Dharmapuri Police Station, he arrested the third accused and recorded confession statement from her in pursuance of which he seized a syringe and the injection which were kept in her house under cover of mahazar. On 10.10.2011, at 10.30 a.m., in Dharmapuri Police Station, he arrested the third accused and recorded confession statement from her in pursuance of which he seized a syringe and the injection which were kept in her house under cover of mahazar. She also produced a bottle with aluminium seal and a syringe and a needle which were recovered by him under cover of mahazar, Exhibit P-22. He sent the case properties to the Court. He gave a requisition to the Court for sending the case properties for forensic analysis. In Exhibit P-11, toxicology department report, the following details are found :- Item No. 1: A vial with secured lid and with printed label “Sterite Succinyl Choline Chloride USP………………… Myorelex …………….” and having a colourless liquid measuring 2 ml. Detected Succinyl Choline Chloride in it. Item No. 2: A plastic disposable 5 ml syringe with needle and with printed matters “Dispovan…….” and having a colourless liquid measuring 1 ml. Detected Succinyl Choline Chloride in it. 2.5 The next incumbent of P.W.13, the DSP P.W.14 in continuation of the investigation examined the doctors, obtained the post mortem certificate and recorded their statements. On completion of investigation, he laid charge sheet against the accused. 3. After the prosecution evidence was over, the trial Court questioned the appellants/accused under Section 313 Cr.P.C. as regards incriminating materials available against them in the prosecution evidence. They denied the complicity to the offence. They did not examine any witnesses. 4. After analysing the evidence and materials on record, the learned Additional Sessions Judge, Dharmapuri convicted and sentenced the appellants as stated above. Challenging the judgment of conviction, the appellants are before this Court. 5. The point for consideration is, “whether the prosecution has established the charges framed against the appellants/accused beyond all reasonable doubt?”. Point:- 5.1 The learned counsel for the appellants Mr. Challenging the judgment of conviction, the appellants are before this Court. 5. The point for consideration is, “whether the prosecution has established the charges framed against the appellants/accused beyond all reasonable doubt?”. Point:- 5.1 The learned counsel for the appellants Mr. V. Rajamohan would contend that the mother of the deceased, P.W.1 though had given complaint, turned hostile to the prosecution, that there is no evidence to connect the accused with the alleged crime, that there is no independent witness to say about the dowry torture and cause for the deceased to take the extreme step of committing suicide, that the allegations of demand of dowry contained in the complaint have not been spoken to by any of the witnesses and the Court below has convicted the appellants under surmises and that there is no legal basis for conviction of the appellants. 6. The learned Government Advocate (Crl.side) would submit that even though P.W.1 turned hostile to the prosecution, her allegations in the complaint coupled with the statement given by her alongwith her husband before the RDO would portray the reason for the occurrence, that the accused persons have not come out with any explanation as to the death of the deceased in their house, that even in the answers given by them during the questioning under Section 313 Cr.P.C., they did not say anything about their stand to the occurrence, that they did not explain the injuries on the deceased and that on the clinching evidence available on record, the trial Court has convicted the appellants and there is nothing wrong on the part of the Court below to pass a judgment of conviction and that no valid ground has been made out to discard the conclusion of the trial Court. 7. The first and foremost thing to be seen in this case is that the author of FIR, P.W.1, mother of the deceased turned hostile to the prosecution before the Court. She had given a joint statement with her husband before the RDO at the time of inquest and in the complaint, Exhibit P-17 that at the time of marriage, they offered 10 sovereigns of gold jewels and Rs. 10,000/- cash but the accused made further demand of 10 sovereigns of gold and Rs. 20,000/- cash and that even in the morning of the date of occurrence, there was such demand as told by the deceased over phone. 10,000/- cash but the accused made further demand of 10 sovereigns of gold and Rs. 20,000/- cash and that even in the morning of the date of occurrence, there was such demand as told by the deceased over phone. In the statement before the RDO, they have stated that before 25.8.2001, when their daughter and the first accused came to Dharmapuri from their house, both were happy. The statement given by them before the RDO has not been marked before the Court. In the evidence, she has stated that Sumathy did not say anything wrong about the accused, that at the time of betrothal, there was no talk with reference to dowry, that at the time of marriage, she gave 7 sovereigns of gold jewels and household articles and also Rs. 10,000/- cash for marriage expenses to the first accused and there were no problem in her matrimonial home and that the thumb impression in the complaint belongs to her. She denies the suggestion that on 25.8.2001, at about 7.30 p.m. she laid a complaint to the police. She turned as hostile witness and was examined cross by the prosecution. She did not support the versions contained in the complaint. 8. P.W.3, brother of the deceased would say that his sister was properly treated in her matrimonial home and that he does not know anything. He was also treated as hostile witness and examined in cross by the prosecution. PW4 is the neighbour of the accused who also turned hostile to the prosecution. 9. RDO is of the opinion that the deceased was subjected to dowry harassment and was done to death. Based upon the versions in FIR and the opinion of the RDO, it appears that the trial Court has proceeded with conviction of the appellants. It is also held by the trial Court that even though the death had occurred in the house of the accused, they did not report the matter to the police nor to the Village Administrative Officer immediately and since all the accused were present at the scene of occurrence, it is the duty of A.1 to give proper explanation for the cause of death of his wife. In the lower Court judgment, a decision of this Court has been followed which is in Balamurugan v. State by Inspector of Police, Brammadesam (2006) 1 MLJ (Crl) 364. In the lower Court judgment, a decision of this Court has been followed which is in Balamurugan v. State by Inspector of Police, Brammadesam (2006) 1 MLJ (Crl) 364. Following is the observations of this Court – “The Additional Public Prosecutor, in support of his submissions, relied on the judgment of a Division Bench of this Court in Shanmugasundaram v. State , (1997) Cr.LJ 499 , in para 19, the bend held, “….. If some occurrence happens inside the residential portion of the appellant, wherein he was also available, at or about the time of the incident, he is bound to offer his version as to how the occurrence had taken place ………… Further, the conduct of the appellant immediately after occurrence is consistent only with his guilt. Assuming that this was a case of suicide, would not have been the conduct of the appellant different? He would then have certainly been present at the scene and attempted to set the law in motion….. The third circumstance also links the appellant with the crime, moreso, when he had not chosen to offer any explanation, whatever, as to how the occurrence had happened. When he was examined under Section 313 , Cr.P.C., to every question addressed to him, his answer was either “false” or “I do not know”. He never sought to offer any explanation about this crime or even claim that he was not present at the time of the incident. More so, when several prosecution witnesses had seen him together with his wife fairly late on the earlier night”. 10. As found in the above said decision, in the present case on hand also, A.2 has answered either as “false” or “I do not know”. Finally, the learned trial Judge concluded that A.1 to A.3 have failed to offer explanation as to how deceased Sumathi met her death. In the above said decision, the failure on the part of the accused to offer explanation is not the sole ground for convicting them but it is one more ground to found them guilty. In the case on hand, no doubt there is no explanation on the part of the appellants. On this sole ground, the appellants could not be convicted. 11. In the case on hand, no doubt there is no explanation on the part of the appellants. On this sole ground, the appellants could not be convicted. 11. In the above said decision, this Court has followed the decision of a Division Bench of this Court in Shanmugasundaram v. State (1997) Cr.LJ 499 : wherein in a case of murder, the accused was alone present at the time and place of occurrence and he absconded soon after the occurrence and hence, it is observed that he is bound to offer explanation thereof as facts were within his special knowledge and absence of explanation by him would lead to a possible inference that he participated in the incident. But in the case on hand, it is not the case under Section 302 IPC. There is no charge under Section 302 IPC. This is a case of dowry death. Hence, even if the appellants were present in the scene of crime at the time of occurrence it could not be stated that they were cause for the death. The essential ingredients to be satisfied statutorily in this case is that soon before the death of the deceased, she was subjected to harassment of dowry. Hence, the Court has to see whether there were materials to infer that soon before the death of the deceased whether there was any harassment relatable to dowry demand? Hence, the prosecution cannot take recourse to the above said decision. 12. It could not be stated that there could be no conviction on the basis of evidence adduced by witnesses who turned hostile to prosecution. Merely because key witnesses turned hostile to prosecution, it cannot be stated that there can be no conviction. The Court has to see whether there are any materials available in their evidence to connect the accused with the crime. If the Court is unable to find out any material as such showing nexus of the accused with the offences, then it may not be ignored. As far as the facts of the present case are concerned, P.W.1 and 3 turned hostile. The husband of P.W.1 and P.W.1 have given joint statement before RDO. The husband of P.W.1 has not been examined before the Court. There is no explanation forthcoming for failure of his examination. It is in the evidence of PWs1 and 3 that the spouses were happy before the occurrence. The husband of P.W.1 and P.W.1 have given joint statement before RDO. The husband of P.W.1 has not been examined before the Court. There is no explanation forthcoming for failure of his examination. It is in the evidence of PWs1 and 3 that the spouses were happy before the occurrence. They did not say anything against the appellants. The Court below has observed that in the complaint as well as the statement before the RDO, she has categorically stated about the cruelty and harassment meted out to her daughter on 25.8.2001. It is true that the contents of FIR would show that there was a demand of dowry in the morning of the day of occurrence. But, they have to be spoken to by P.W.1. P.W.1 being the author of the allegations is bound to state those things before the Court. Then only the accused side would have got an opportunity to examine her in cross with reference to the allegations of the dowry harassment and when P.W.1 has not stated anything about the harassment as to dowry, on the date of the incident or before that, there would be no opportunity for the defence to cross examine on this line. When the accused side is not afforded with an opportunity to cross examine P.W.1 or P.W.3 as to the dowry harassment, it is not safe to rely upon the mere allegations alone available in her complaint and the statement before the RDO. The RDO reached a conclusion only on the basis of the statement given by the parents of the deceased. 13. Only if the complainant or the material witness gives sufficient evidence connecting culpability on the part of the accused, then the Court may decide whether any corroboration is needed for their evidence. It is the discretion of the Court to decide whether corroboration is essential for the oral testimony of a particular witness. It depends upon the facts and circumstances of each case. Even if the evidence of complainant or material witnesses is able to stand, it is then within the discretion of the Court whether it has to be relied upon without corroboration. As for this case, there is no oral evidence on the part of any material prosecution witness to say about the aspect of dowry harassment soon before death, as required under Section 304(B) IPC. As for this case, there is no oral evidence on the part of any material prosecution witness to say about the aspect of dowry harassment soon before death, as required under Section 304(B) IPC. The allegation is only available in the complaint and statement before RDO which have not been spoken to by P.W.1 nor P.W.3. Hence, the reliability of the allegations could not be decided without the opportunity being afforded to the accused side to question the same. In these circumstances, the allegations in the complaint and statement before the RDO alone would not constitute a good ground nor reason to base conviction of the accused. 14. As far as the presumption under Section 113 of the Evidence Act is concerned, when the death of a women has occurred within 7 years of her marriage, a presumption has to be drawn that it is a dowry death. It is a rebuttable presumption. The presumption stand rebutted in this case at the instance of prosecution witnesses. It is also observed by the Court below that A.1 to A.3 have not given any explanation as to how the injuries on the deceased were sustained. A.1 in his answer to questions under 313 Cr.PC has stated that he was informed that his wife fainted on the terrace of his house and that she was taken to hospital. In the cross examination, doctor has stated that the injury on the palm of the deceased would have been caused by iron box. The iron box was seized from the house of the deceased. In the cross examination, she says that the 1st injury may be caused by fall of boiled water or oil on the hand and the 4th injury may also be caused in that manner, that the 3rd, 5th and 6 to 8 injuries may be caused due to fall on a rough surface and that if the parts of the body are exposed to sunlight, the injuries no.2 and 9 could be caused. There may be some wrong on the part of the evidence because the injury no.9 is a ligature mark. As far as injury no.2 is concerned, they are blisters which can be caused by contact on a heated surface. So, it is the argument of the appellant‘s side that since deceased had fallen on the terrace in the noon, she might have sustained those injuries. As far as injury no.2 is concerned, they are blisters which can be caused by contact on a heated surface. So, it is the argument of the appellant‘s side that since deceased had fallen on the terrace in the noon, she might have sustained those injuries. The death occurred at 1.45 p.m. There is no evidence to show that the medicine in the vial was administered to the deceased by a syringe and by means of which death has occurred. In the internal organs, no such medicine was found out. 15. There is no allegation in the FIR nor in the statement of witnesses examined by RDO as to the circumstances under which the injuries on the deceased were caused by the accused persons. There is no direct evidence on record. Even though it may be stated that the accused are bound to furnish explanation for the presence of injuries on the deceased, even the prosecution has not stated how the deceased sustained those injuries. In this context, the explanation furnished by the accused in the cross of doctor can be treated to be sufficient. The doctor was not examined during investigation as to the effect or consequences of “Succinyl Choline Chloride”. The prosecution has not placed proper materials before the Court for deciding against the accused as to the seizure of the syringe. 16. In view of the above said circumstances, this Court is of the definite view that the prosecution has failed to bring home the guilt of the accused beyond all reasonable doubt for the charge under Section 304 (B) IPC. Further, there is no clinching material nor evidence to infer that there was a dowry demand also. Hence, the charge under Section 4 of the Dowry Prohibition Act is also not proved. The benefit of doubt has to be extended to the appellants. Hence, the judgment of conviction passed against the accused has to be set aside and it is accordingly set aside. This point is answered as indicated. 17. In fine, the Criminal Appeal is allowed acquitting the appellants of the charge framed against them. Fine amount, if any paid by the appellants shall be refunded to them and the bail bonds, if any, executed by them shall stand discharged. Appeal allowed.