JUDGMENT : 1. - The accused-appellant has preferred this criminal appeal under Section 374 Cr.P.C. against the judgment of conviction and order of sentence dated 19.10.2010 passed by the Additional Sessions Judge, Shahpura (District Jaipur) in Sessions Case No.12/2007 whereby the learned Court below convicted the appellant for offences under Section 304-B and 498-A IPC and sentenced him for rigorous imprisonment of ten years for offence under Section 304B IPC and for simple imprisonment of three years and a fine of Rs. 300/- and in default thereof to further undergo simple imprisonment for three months for offence under Section 498A IPC. It was further ordered that both the aforesaid substantive sentences will run concurrently. It is to be noted that the learned trial court has acquitted accused-Shri Deen Dayal and Smt.Janki alias Jana Devi. 2. Brief relevant facts for the disposal of this appeal are that on 28.11.2006 at 1.00 P.M. complainant-Shri Mahavir Prasad PW6, father of the deceased-Smt.Reena, lodged a written report (Ex.P I) before Police Station, Shahpura with the averment that marriage of his daughter was solemnised on 18.11.2005 with the appellant and since from the date of the marriage, in-laws of her daughter treated her cruelty by the reason that the dowry given at the time of marriage was not upto their expectations and whenever she came to her paternal home, she narrated to them the cruel treatment committed upon her. It was further averred in the report that on 27.11.2006 at about 8 A.M. in the morning, the appellant informed him on telephone that the deceased is missing from the house since 6.30 in the morning and upon that, he along with some respectable persons of his village came to the matrimonial home of her daughter and they found her daughter's in-laws behaviour unnatural. It was apprehended in the report that the in-laws of his daughter either concealed her in a secret place or her dead-body has been disposed of after causing her death. On the basis of the aforesaid written report, Rapport No. 1724 (Ex.P24) was recorded in the daily-diary (Rojnamcha) maintained by the police station. It was apprehended in the report that the in-laws of his daughter either concealed her in a secret place or her dead-body has been disposed of after causing her death. On the basis of the aforesaid written report, Rapport No. 1724 (Ex.P24) was recorded in the daily-diary (Rojnamcha) maintained by the police station. On the same day i.e. on 28.11.2006, at 7.45 A.M. another Rapport No.1708 (Ex.P23) was lodged by the grand-father-in-law-Shri Suraj Mal about dis-appearance of the deceased and on 29.11.2006, after the dead body of the deceased was recovered from a nearby well, another written report (Ex.P15) was lodged by Shri Mahavir Prasad (PW6) to the effect that his daughter was treated with cruelty by her in-laws on account of dowry not upto their satisfaction given in respect of her marriage. It was also averred in this report that on 27.11.2006, when they came to her matrimonial home search was also made in the aforesaid well but nothing was found in it. On the basis of this subsequent written report, FIR No.651/2006 for offences under Section 498-A and 304-B IPC was registered and after usual investigation charge-sheet for aforesaid offences was submitted against the appellant as well as the accused acquitted by the Court below. All the three accused were charged for offences under Section 498-A and 304-B IPC. In order to prove the same, prosecution produced oral as well as documentary evidence whereas in his statement under Section 313 Cr.P.C, the appellant denied the allegation and evidence produced by the prosecution. In defence the acquitted accused Shri Deen Dayal appeared as witness under Section 315 Cr.P.C. and some documentary evidence was also produced. The learned trial Court after hearing both the parties found the appellant guilty for the aforesaid offences and sentenced him as already stated. Feeling aggrieved, he is before this Court by way of this criminal appeal. 3. Assailing the impugned judgment, learned counsel for the appellant submitted that there is no independent evidence available on record in support of the allegation that demand of dowry was ever made by the appellant or his family members and when such demand was not fulfilled appellant or his family members treated the deceased with cruelty. 3. Assailing the impugned judgment, learned counsel for the appellant submitted that there is no independent evidence available on record in support of the allegation that demand of dowry was ever made by the appellant or his family members and when such demand was not fulfilled appellant or his family members treated the deceased with cruelty. According to learned counsel in support of the charges framed against the appellant only interested witnesses, who are father, mother and brother of the deceased, have been produced and there are several material contradictions and improvements in their inter-se statements and also from the various reports lodged by them. It was further submitted that in none of the written reports allegation about demand of Maruti Car was made whereas during trial it was stated that from the very beginning demand for Maruti Car was made and when the same was not fulfilled the deceased was treated with cruelty. It was further submitted that there is no evidence on record indicating that immediately before the death of the deceased any demand for dowry was made and when the same was not fulfilled cruelty was committed upon the deceased. It was also submitted that from the evidence available on record it is clear that the deceased accidentally fell into the well and by drowning her death was caused. 4. In support of his submissions learned counsel for the appellant relied upon the cases of Chana Ram & Ors. v. State of Rajasthan, 2002 RLW(1) Raj. 70 , Mahesh Kumar v. State of Rajasthan, 1997 WLC (Raj.) UC 200 , Bhanwari Devi & Ors. v. State of Rajasthan, 2003(2) WLC (Raj.) 212 , Narayan Singh v. State of Rajasthan, 2002(2) Cr.LR. (Raj.) 1518 and Ram Saran Mahto & Anr. v. State of Bihar, AIR 1999 SC 3435 . 5. On the other hand learned, Public Prosecutor by supporting the judgment passed by the trial Court submitted that there is ample evidence available on record indicating involvement of the appellant in the aforesaid offences and no illegality and perversity has been committed by the Court below in convicting and sentencing him. 6. I have considered the submissions made on behalf of the parties and the record made available for my perusal as well as the relevant legal provisions and case law. 7. 6. I have considered the submissions made on behalf of the parties and the record made available for my perusal as well as the relevant legal provisions and case law. 7. Section 304B IPC provides that 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. 8. In the present case, it has not been disputed by the appellant that he is husband of the deceased and her death occurred within a period of seven years from the date of their marriage and also that she suffered her death otherwise than under normal circumstances as her body was found in nearby well and cause of death has been shown to be by drowning. From the evidence available on record it is to be seen whether other ingredients to constitute the offence of dowry death i.e. soon before her death the deceased was subjected to cruelty or harassment by the appellant for or in correction with any demand for dowry are made out or not and whether the findings given by the trial Court in this regard are legally sustainable. Similarly, Section 498A IPC provides that whoever, being the husband or the relative of the husband of a women subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to tine. The word "cruelty" has been defined in the explanation appended to the aforesaid section. 9. The prosecution case is that the deceased was found missing from her matrimonial home early in the morning on 27.10.2006 and her death body was subsequently found on 29.11.2006 from a well situated nearby to her matrimonial home. The word "cruelty" has been defined in the explanation appended to the aforesaid section. 9. The prosecution case is that the deceased was found missing from her matrimonial home early in the morning on 27.10.2006 and her death body was subsequently found on 29.11.2006 from a well situated nearby to her matrimonial home. Rapport Rojnamcha Aam No.1708 (Ex.P.23) shows that on 28.11.2006 at 7.45 A.M. it was reported by the grand-father-in-law of the deceased Shri Suraj Mal Verma to the Police Station Shahpura that the deceased is missing from the house from the morning at 6.30 on 27.11.2006 and despite intensive search being made she could not be found. It was further averred in the report that the father of his grand-daughter-in-law Shri Mahavir Prasad has already come to their house yesterday and he is also searching for her daughter. It was prayed that search may be made for her. It is to be noted that on the basis of aforesaid report a case regarding missing person was registered and investigation was handed over to a Police Officer. Subsequently, on the same day i e. on 29.11.2006 father of the deceased Shri Mahavir Prasad (PW6) lodged another written report (Ex.P 1) in the same Police Station at 1.00 P.M. and on that basis Rapport No.1724 was registered in the Rojnamcha Aam. In this report it was alleged by Shri Mahavir Prasad that since from the date of marriage the in-laws of her daughter were harassing her by the reason that the dowry given at the time of the marriage was not upto their satisfaction and whenever she came to her parental home she complained about it to him and her mother but they persuaded her to tolerate the same. It was also averred in the report that on 24.11.2006 he intended to have a talk with her daughter on phone but her father-in-law and mother-in-law did not allow her to have a talk with him. It was further averred in the report that on the information received from the appellant on 27.11.2006 at 8.00 A.M. by telephone, he alongwith some respectable persons of his village went to the matrimonial home of his daughter but he found the conduct of her in-laws unnatural. He suspects that the in-laws of her daughter either concealed her at some secret place or after causing her death concealed her dead-body. He suspects that the in-laws of her daughter either concealed her at some secret place or after causing her death concealed her dead-body. It was prayed that his daughter may be searched and necessary action may be taken against culprits. It is pertinent to note that in the written report (Ex.PI) nowhere it was averred by Shri Mahavir Prasad that demand of a Maruti Car was made before or at the time of or after the marriage. No such averment was also made in the report that on 27.11.2006 or 28.11.2006 search for the deceased was made in the well situated nearby to her matrimonial home but nothing was found in it. According to report (Ex.P2) dated 29.11.2006 prepared under Section 174 Cr.P.C. an information was received at Police Station, Shahpura at 7.45 P.M. through telephone to the effect that a dead body has been found in a well in village Antela and upon such information the SHO alongwith police party reached the place where the dead body was said to be found. According to this report in the presence of S.D.O. Virat Nagar, CO. Shahpura, the complainant-Shri Mahavir Prasad (PW6) and many other persons the dead body of the deceased was taken out from the well and the same was sent to the hospital with the consent of the family members of the deceased. According to Site Plan (Ex.P3) prepared on 29.11.2006 in the evening at 5.30 P.M. the well in which the dead body of the deceased was recovered is 130 ft. deep and this document was also prepared in the presence of the complainant. According to Recovery Memo (Ex.P4) dated 29.11.2006, pieces of broken glass bangles and one 'Pajyeb" were recovered at 5.30 P.M. by the investigating officer and at the time of recovery complainant was also present. Similarly, Ex.P5 was also prepared in the presence of the complainant. From the evidence available on record it is also clear that dead body of the deceased was handed over to her in-laws for performing last rites and in this regard no objection was raised by the complainant 10. PW6-Shri Mahavir Prasad, who is the complainant and father of the deceased. From the evidence available on record it is also clear that dead body of the deceased was handed over to her in-laws for performing last rites and in this regard no objection was raised by the complainant 10. PW6-Shri Mahavir Prasad, who is the complainant and father of the deceased. in his examination-in-chief has stated that at the time of marriage of the deceased the goods and articles mentioned in his statement were given as dowry and when she came to her paternal home second time it was complained by her that her father-in-law Shri Deen Dayal, husband, the appellant, and sister-in-law-Madhu are harassing her by the reason that the dowry is not to their satisfaction and Maruti Car was not given. It was further stated by him that although immediately before marriage demand for a vehicle was made but they took it as demand for motorcycle and the same was given after purchasing it from Narnol. It was further stated by him that whenever the appellant came to their house they tried to persuade him not to harass the deceased but he expressed his inability in this matter by saying that his father and mother are very much after a Maruti Car and unless the same is given, they will continue to harass the deceased. According to the witness her daughter gave birth to a female child on 26.09.2006 and on the demand being made by in-laws of her daughter some gifts were unwillingly given but they were not satisfied with them. It is also the statement of the witness that on the occasion of marriage of sons of younger brother of father-in-law of the deceased again demand demand was also fulfilled. According to witness on that occasion also father-in-law expressed his annoyance and dissatisfaction. It was further been stated by the witness that on 27.11.2006 information was received by him regarding disappearance of the deceased and thereupon he alongwith some respectable persons of the village reached at the matrimonial home. It was further been stated by the witness that on inquiry being made it was told by the members of her matrimonial home that the deceased went to the back side of the house and did not return thereafter. It was further been stated by the witness that on inquiry being made it was told by the members of her matrimonial home that the deceased went to the back side of the house and did not return thereafter. According to the witness on the same day in the evening at about 5.00 P.M. with the help of "Bilai" (an iron instrument) they searched in the nearby well but nothing was found in it and they came to a conclusion that the deceased either alive or dead is not in the well. In his examination-in-chief the witness has also supported the investigation conducted by the police on 29.11.2006. In his cross examination the witness has admitted that before and at the time of marriage no demand of any dowry was made by the in-laws of the deceased. He could not specifically state the date on which the deceased for the first time complained about demand of dowry made by her in-laws. He was further admitted that on the complaint being made by her daughter in this regard he did not come to her in-laws alongwith Shri Satya Narayan who was middle man in regard to marriage of her daughter with the appellant. He has also admitted that the appellant was having a Maruti Car with him which was purchased after six months from the date of marriage. He has also admitted that wife of Shri Tarachand who is brother of appellant ever complained to him that her in-laws are demanding dowry and on demand not being fulfilled they are harassing her also. He has admitted in his cross examination that in various photographs shown to him during cross examination his daughter is also visible. The witness also admits that he was very much annoyed by the reason that at the time of marriage of sons of younger brother of Shri Deen Dayal, father-in-law of the deceased, gifts were demanded from him despite the fact that at the time of marriage of her daughter he already had given sufficient dowry at his own. 11. The witness also admits that he was very much annoyed by the reason that at the time of marriage of sons of younger brother of Shri Deen Dayal, father-in-law of the deceased, gifts were demanded from him despite the fact that at the time of marriage of her daughter he already had given sufficient dowry at his own. 11. A careful perusal of whole of the statement of his important witness shows that after few days of marriage dissatisfaction was expressed by the in-laws of the deceased mainly by the reason that Maruti Car was not given at the time of marriage although a demand for the same was made but this version of the witness is highly doubtful because no such averment was made either in the report (Ex.P I) lodged on 28.11.2006 or in report (Ex.P15) which was lodged on 29.11.2006 after recovery of dead-body of the deceased. No explanation has been come from the witness why this important fact was not narrated in the aforesaid reports. It is also pertinent to note that it is an admitted fact that a second-hand Maruti Car was purchased by the in-laws few months after the marriage. It appears that the fact of demand of Maruti Car by the in-laws of the deceased is an after-thought and it has been levelled only to give seriousness to the allegation made against the appellant and his family members. Perusal of statement of the witness further reveals that he was annoyed with the father and mother of the appellant due to all reasons that he initially refused to give gifts at the occasion of birth of a female child to the deceased on the premises that such gifts are ordinarily given by the parents only on the occasion of birth of a male child but he was forced to give such gifts but even then father-in-law of the deceased was not satisfied. Further cause of annoyance appears to be that the witness initially refused to give gifts at the time of marriage of sons of younger brother of Shri Deen Dayal despite the fact that subsequently some gifts were given by the witness on that occasion also but that could not satisfy Shri Deen Dayal. Similarly, the in-laws were dissatisfied by the reason that the witness refused to give gifts at the occasion of death of mother-in-law of Shri Deen Dayal. 12. Similarly, the in-laws were dissatisfied by the reason that the witness refused to give gifts at the occasion of death of mother-in-law of Shri Deen Dayal. 12. Hon'ble Supreme Court in the case of Satvir Singh & Ors. v. State of Punjab & Anr., AIR 2001 SC 2828 has held that: "Prosecution in case of offence under Section 304B IPC cannot escape from the burden of proof that the harassment or cruelty was related to the demand for dowry and also that such cruelty or harassment was caused soon before her death. The word 'dowry' in Section 304-B has to be understood as it is defined in Section 2 of the Dowry Prohibition Act, 1961. Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage, and the third occasion may appear to be an unending period. But the crucial words are in connection with the marriage of the said parties. This means that giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties. There may be many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of 'dowry'. Hence the dowry mentioned in Section 304-B should be any property or valuable security given or agreed to be given in connection with the marriage." 13. Hon'ble Supreme Court in the above case has also observed that: "It is not enough that harassment or cruelty was caused to the woman with a demand for dowry at some time, if Section 304-B is to be invoked. But it should have happened soon before her death. The said phrase, no doubt, is an elastic expression and can refer to a period, either immediately before her death or within a few days or even a few weeks before it. But the proximity to her death is the pivot indicated by that expression. Her death should in all probabilities have been the aftermath of such cruelty or harassment. In other words, there should be a perceptible nexus between her death and the dowry related harassment or cruelty inflicted on her. But the proximity to her death is the pivot indicated by that expression. Her death should in all probabilities have been the aftermath of such cruelty or harassment. In other words, there should be a perceptible nexus between her death and the dowry related harassment or cruelty inflicted on her. If the interval elapsed between the infliction of such harassment or cruelty and her death is wide the Court would be in position to gauge that in all probabilities the death would not have been the immediate cause of her death. It is hence for the Court to decide, on the facts and circumstances of each case, whether the said interval in that particular case was sufficient to snuff its cord from the concept soon before her death." 14. Hon'ble Apex Court in the above case has clearly held that customary payments in connection with birth of a child or other ceremonies prevalent in different societies do not come within the purview of dowry and if on such an occasion demand of some money, gifts is made it cannot be a demand for dowry and if cruelty or harassment is inflicted on the woman by the reason that the demand remained unfulfilled, it cannot be said that cruelty or harassment is related to dowry within the meaning of Section 304- B IPC. 15. In the present case, from the evidence available on record at the most it can be held that on some different occasions as already referred, some demand was made and in-laws of the deceased were not satisfied with the gifts brought by the relatives of the deceased. In this facts situation, it cannot be said that any demand for dowry in connection with marriage was made. Thus, the prosecution has failed to prove one of the most important ingredients of Section 304-B. Apart from this, on the basis of evidence available on record it cannot be held that any harassment or cruelty was caused to the deceased "soon before her death". In the present case, the last incident of the alleged harassment or cruelty is of the occasion of death of mother-in-law of Shri Deen Dayal which occurred at Phagi in which also according to witness himself Rs. In the present case, the last incident of the alleged harassment or cruelty is of the occasion of death of mother-in-law of Shri Deen Dayal which occurred at Phagi in which also according to witness himself Rs. 51/- were offered by him and no gifts were required to be given whereas the deceased was found missing from her matrimonial home in the morning of 27.11.2006 and her dead-body was found on 29.11.2006. There is no reliable evidence available on record indicating that the deceased was harassed by the appellant or other family members when gifts were not given on the occasion of death of mother-in-law of Shri Deen Dayal. Only by the reason that the death occurred otherwise than under normal circumstances it cannot be presumed that the deceased was subjected to cruelty for or in connection with any demand of dowry. The presumption under Section 113-B of the Indian Evidence Act can arise only when prosecution is able to show that soon before death there was cruelty or harassment, only in that case presumption under Section 113-B can operate. It is also for the prosecution to rule out the possibility of accidental death so as to bring it within the purview of death occurred otherwise than in normal circumstances. So far as cause of death is concerned, it is the case of the prosecution itself that the deceased suffered death by drowning. PW 12-Dr.Dinesh Mittal and PW 13 Harish Kumar Verma, who were members of the Medical Board which conducted the post-mortem of the deceased have clearly opined that the deceased suffered death due to drowning. They have further opined that the time of death was 36 to 48 hours before examination. In cross examination they have further opined that no sign of beating or injuries were found on the body. They specifically stated that the body of the deceased was thrown in the water after causing her death. In the light of the medical evidence available on record this statement of PW 6-Shri Mahavir Prasad is of no avail that the body of her daughter was thrown in the nearby well after causing her death. This statement of the witness is also not credible that search for the body was made on 27.11.2006 and on 28.11.2006 but the same was not found in the well in which the same was lateron found on 29.11.2006. This statement of the witness is also not credible that search for the body was made on 27.11.2006 and on 28.11.2006 but the same was not found in the well in which the same was lateron found on 29.11.2006. This important fact about search of the dead-body in the well also does not find place in both of aforesaid reports lodged by him. 16. So far as offence under Section 498A IPC is concerned. I am of the firm view that on consideration of the evidence available on record it cannot be held that offence punishable under this section is made out. Section 498A IPC is as follows: "498A. Husband or relative of husband of a woman subjecting her to cruelty-Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty, shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation - For the purpose of this section, "cruelty" means (a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property to valuable security or is on account of failure by her or any person related to her to meet such demand." 17. For an offence under Section 498-A to be made out, it is essential that "cruelty" as defined in the explanation is inflicted on a woman. According to this definition "cruelty" means any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman or harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. 18. 18. As already discussed, no demand of any kind except on the some few occasion as already referred is made out from the evidence available on record. Although, the evidence available on record shows that the father-in-law and mother-in-law of the deceased were not satisfied with the gifts brought by the father of the deceased on different occasions as already referred but there is no evidence available on record to show that the deceased or any of her relative was coerced to fulfil the demand made. There is also no evidence on record to show that by the reason that the gifts demanded by the in-laws were not given by the parents of the deceased, she in any manner was harassed. The demand made by the in-laws on the aforesaid occasions cannot be said to be of such a nature as is likely to drive the deceased to commit suicide. 19. The learned trial Court without considering the requirements of Section 304- B and 498-A IPC in a proper perspective came to a conclusion that appellant is guilty of these offences. It is pertinent to note that on the same set of evidence the trial Court has acquired (sic. acquitted) the father-in-law and mother-in-law of the deceased. As already stated, the star witness of the prosecution i.e. PW6-Shri Mahavir Prasad, the father of the deceased has made comparatively more serious allegation against them in comparison to the appellant. 20. Consequently, the appeal filed by the appellant is allowed and the judgment of conviction and order of sentence dated 19.10.2010 in Sessions Case No.12/2007 passed by the Additional Sessions Judge, Shahpura (District Jaipur) is set aside and the appellant-Jitendra @ Shri Deen Dayal is acquitted of the charges levelled against him. The appellant is in custody, he shall be immediately set-free, if no required in any other criminal case. *******