JUDGMENT Hon’ble Zaki Ullah Khan, J.—The instant appeal has been preferred by appellant- Rakesh Srivastava against the judgment and order dated 4.11.1997 passed by VIth Additional District Judge, Lucknow in Sessions Trial No. 417 of 1995 (State v. Rakesh Srivastava) convicting him under Sections 498-A, 304-B and 302 I.P.C. and sentencing him to undergo three years’ rigorous imprisonment under Section 498-A IPC and imprisonment for life under each Sections 304-B and 302 I.P.C. respectively. 2. The facts giving rise to the appeal, in brief, are that complainant Niranjan Kumar Sinha lodged a written report at Police Station Gomti Nagar, Lucknow, alleging that his daughter Smt. Poornima Srivastava was married to appellant-Rakesh Srivastava on 13.12.1984 ; that Rakesh Srivastava- appellant was employed as Peon in the Jal Nigam Headquarter ; that immediately after marriage, the appellant started harassing the deceased ; that he used to beat her and often demanded money; he was reprimanded couples of times but he did not pay any heed ; that on 4.10.1990 his daughter came to his house and she demanded Rs. 5000/- from his wife on persuasion of appellant, but due to paucity of funds, she could not fulfill the demand of the appellant ; that his daughter apprised the appellant regarding the poor financial condition of the complainant ; that agitated by non-fulfillment of his desire, he satisfied his anger by badly beating her ; that on 5.10.1990 again the appellant beat her and thereafter sprinkled kerosene oil on her and infant daughter Sweta alias Neha and son Subham and torched fire ; that elder son Nippoo, however, somehow escaped and raised alarm and informed the neighbours regarding the incident ; that the appellant meanwhile carried his infant son Nitin alias Subham aged about two and half years in half burnt position and admitted him in Balrampur Hospital and left the other two in the state of burning; that Subham succumbed to burn injuries at 5.45 p.m. in Balrampur Hospital ; that the appellant on previous occasion, also caused injuries by giving her electric shocks ; that the complainant prayed for immediate action by submitting written report Ext.Ka.1 to the Station Officer on 7.10.1990 at 9.45 hrs. and on his written report a chick F.I.R. Ext.Ka.2 was registered on 7.10.1990 and the G.D. was prepared on the basis of Chick F.I.R. which is Ext. and on his written report a chick F.I.R. Ext.Ka.2 was registered on 7.10.1990 and the G.D. was prepared on the basis of Chick F.I.R. which is Ext. Ka.3; that the postmortem of the deceased Smt.Poornima was conducted in Balrampur Hospital on 6.10.1990, postmortem of Km. Sweta and Shubham was conducted the same day in Balrampur Hospital i.e. on 6.10.1990 ; that during investigation the Investigating Officer prepared the site plan of the place of occurrence Ext.Ka.7 ; that before registration of the F.I.R. of the complainant, one report was also lodged by one Sri A.P. Singh resident of House No. 2/292, Vishal Khand, Gomti Nagar, Lucknow on 5.10.1990 at about 14.15 hrs. in which he stated that on 5.10.1990 at about 1.30 p.m. one woman and a child had been burnt and he could gather the information when a small boy came running to him ; that Sri A.P.Singh and other neighbours found that one lady and one child burnt to death ; that Sri A.P. Singh had also mentioned in his written report that father of burnt children also came there after sometime and he informed that there was another child who had been burnt but he tried to rescue him by admitting him in hospital. 3. The information given by Sri A.P. Singh had been recorded in the G.D., which is Ext.Ka.9 ; that the Investigating Officer prepared inquest report at the spot, of the deceased Poornima and sealed her body, inquest report is Ext.Ka.11. The Investigating Officer also prepared Police Form No. 13, which is Ext.Ka.12 as well as Khaka lash Ext.Ka 13 and sealed the dead body of Smt.Poornima the memo of which is Ext.Ka.14 and requested the Superintendent, King Georges Medical College, Lucknow to conduct the autopsy, vide memo Ext.Ka.15 ; Investigating Officer also prepared the inquest report of Km. Sweta, Ext.Ka 16 and also prepared Challani report, Ext. Ka.17. Memo regarding dead body is Ext.Ka.18 and specimen seal is Ext.Ka.19. Investigating Officer also wrote letter to the Medical Superintendent, King George Medical College, Lucknow for conducting autopsy Ext.Ka.29 and same procedure was also adopted for child Subham. This inquest report is Ext.Ka.23. Investigating Officer prepared Challan lash Ext.Ka.22 and the report to the hospital authorities for postmortem is Ext.Ka.25. Khaka lash of Subham is Ext.Ka.24. Investigating Officer also wrote letter to the Medical Superintendent, King George Medical College, Lucknow for conducting autopsy Ext.Ka.29 and same procedure was also adopted for child Subham. This inquest report is Ext.Ka.23. Investigating Officer prepared Challan lash Ext.Ka.22 and the report to the hospital authorities for postmortem is Ext.Ka.25. Khaka lash of Subham is Ext.Ka.24. Report of death regarding Subham had been given by the Medical Officer, Balrampur Hospital, which is Ext.Ka.26 ; Investigating Officer took the statements of the witnesses and after completing investigation submitted charge-sheet against the appellant, which is Ext.Ka. 8. 4. Charges had been framed under Section 498-A and 304-B I.P.C. Subsequently the charges were amended and Section 302 I.P.C. was also added because as per allegations Rakesh Srivastava, appellant had also committed offence under Section 302 I.P.C. causing death of Sweta and Subham. The appellant pleaded not guilty of charges and claimed to be innocent and preferred to be tried. After recording the statement of the appellant under Section 313 Cr.P.C. on 21.4.1997 the Court reached to conclusion that the charges as framed are defective and are to be amended and in the alternate charge under Section 302 I.P.C. was added. Subsequently after amendment of charges due procedure was adopted by the Court as admissible under law. The prosecution did not adduce any additional evidence and simultaneously the defence too did not express any desire to cross-examine any of the prosecution witnesses after the amendment of the charges. 5. The trial Court after hearing both the parties and going through the evidence on record adjudged the appellant guilty and sentenced him to imprisonment of life under each Sections 304-B and 302 I.P.C. and also sentenced him for three years’ rigorous imprisonment under Section 498-A I.P.C. All the sentences were directed to be run concurrently. Aggrieved by the aforesaid order, the instant appeal has been preferred. 6. Sri A.P. Misra, Advocate, who has been appointed as Amicus curiae by the Court argued at length. Learned Amicus curiae argued that prosecution has examined as many as 11 witnesses to prove its case. 7. Learned Amicus curiae further specified that amongst 11 witnesses, the only eye-witness is P.W.3 elder son of the appellant, namely, Shivam alias Nippoo, who was present at the time of occurrence. Learned Amicus curiae argued that prosecution has examined as many as 11 witnesses to prove its case. 7. Learned Amicus curiae further specified that amongst 11 witnesses, the only eye-witness is P.W.3 elder son of the appellant, namely, Shivam alias Nippoo, who was present at the time of occurrence. He was only 4 to 5 years old then and at the time of recording the evidence, he was 8 years old.The Court recorded the statement after due satisfaction that he is capable of understanding as provided under Evidence Act. Learned Amicus curiae argued that the evidence of this eye-witness cannot be relied upon because he is a child witness and as per testimony of Sri A.P. Singh, who had informed the police at the first occasion regarding the incident narrating that one child who came running to him, informed that his mother had committed suicide by pouring kerosene oil but subsequent during examination in Court, he has narrated facts to the contrary. The reason is very obvious because he had been brain washed by his grand parents as he was residing alongwith them because his father had been detained in jail.Therefore, his testimony is not worth reliance as he was terrified. Learned counsel further argued that P.W.1 is the witness who had lodged the written report Ext.Ka.1 at the police station in which he has only stated that the relations of the appellant with the deceased were not cordial. The appellant did not inform regarding the incident, they were informed by someone else regarding the death of infant Subham son of the appellant. His conduct is such that his testimony is not trustworthy. He has admitted in his cross-examination that on 6.1.1990 there was an agreement between the deceased and the appellant and vide that agreement, they agreed to live separately. Agreement has been exhibited as Kha-1.However, the witness could not specify during cross-examination, that despite the agreement how both of them were found living together although the admitted case is that the agreement was in existence. The question is that when they were living separately how can allegation of demand of dowry be levelled against the appellant? The allegations against the appellant may be for cruel treatment but specific assertion for demand of dowry cannot be made in view of agreement Exhibit Kha-I. 8. The question is that when they were living separately how can allegation of demand of dowry be levelled against the appellant? The allegations against the appellant may be for cruel treatment but specific assertion for demand of dowry cannot be made in view of agreement Exhibit Kha-I. 8. Learned Amicus curiae also pointed out that P.W.2-Smt. Shanti Sinha is wife of the complainant, who is a witness of cruelty and demand of dowry. She had alleged that after couple of months of marriage, the deceased informed her that the appellant used to beat her badly and his behaviour was not cordial. She has also alleged that soon before the death she came for collecting Rs. 5,000/- on persuasion of the appellant but she could fetch only Rs. 400/- by mortgaging her payal and requested her to seek time for payment of remaining sum. She also accompanied her daughter to her husband’s house, however, the appellant was not there. P.W.-2 tried to encircle the appellant by stating the condition of the deceased just before the day of occurrence by describing that she had been noticed as deserted. She tried to emphasize that the deceased looked exhausted and there were no signs like a married lady i.e. she was without sindoor, bangles and was devoid of any other sign of house wife. P.W.-2 tried to explain that she could gather the information from the neighbour regarding the burning of Shubham in the hospital but even that was one day before the lodging of the F.I.R. To explain further, she described that she and her husband could reconcile themselves after hearing awful tale of Shivam, when he recovered from shock, of having witnessed the killing of his mother by unruly and inhuman father, appellant. She tried to patch up the delay in lodging the F.I.R. and then they set the prosecution machinery in motion. She is not an eye-witness and she narrated what she has been informed by her grand son P.W.3-Shivam. All is hearsay and she tried to paint the facts so that she may net a trap around the appellant. Her sole aim that the appellant should be punished in any manner but she never tried to bring correct facts to the notice of the Court. 9. P.W.4 is formal witness Head Constable Radhey Shyam who has prepared G.D. on the basis of Chick F.I.R., Ext.Ka.2 and prepared G.D. Ext.Ka.3. 10. Her sole aim that the appellant should be punished in any manner but she never tried to bring correct facts to the notice of the Court. 9. P.W.4 is formal witness Head Constable Radhey Shyam who has prepared G.D. on the basis of Chick F.I.R., Ext.Ka.2 and prepared G.D. Ext.Ka.3. 10. P.W. 5 is Doctor, who conducted the autopsy, on 6.10.2010. He proved the report prepared during autopsy. He alongwith Dr.Srivastava jointly conducted the autopsy of the deceased Poornima and prepared reports Ext.Ka.4. He has also proved the autopsy report of Sweta and Subham, these are Ext.Ka.5 and Ka.6. The only important point in his testimony is that he has categorically denied that there was smell of kerosene oil on dead bodies. 11. P.W.6 is Ram Asrey, who is neighbour was declared hostile. He denied that he ever gave any statement to the Investigating Officer. 12. P.W.7 is Sri Raj Kumar Vishwakarma, S.S.P. Faizabad who was then Additional Superintendent of Police, Lucknow in the year 1991 and he succeeded the investigation from then C.O. Mahanager Madan Gopal and then he further investigated. He submitted charge-sheet, Ext.Ka.8 under Sections 498-A and 304-B I.P.C. and arrested the appellant. 13. P.W.8 is Constable Suresh Singh who prepared G.D.No. 30 dated 5.10.1990 and proved as Ext.Ka.9. 14. P.W.9 is Sub-Inspector Arun Kumar Yadav who deposed that he had received the information through R.T. Set that one woman and children died due to burning in Vishal Khand 2/285 Gomti Nagar, Lucknow. He prepared inquest report of the deceased, Ext.Ka.11 and completed other formalities also. He had also prepared inquest report of Sweta daughter of the appellant the same day. He also collected burn items i.e. pillow, Bed sheets, bottle of kerosene oil and prepared memo. 15. P.W. 10 is Sub-Inspector B.D.Joshi who prepared inquest report of Subham in Balrampur Hospital and proved the formal document prepared at the time of inquest. 16. P.W. 11 is first Investigating Officer Sri Madan Gopal who was then C.O. Mahanagar, Lucknow. He could not complete the investigation, therefore, investigation was handed over to P.W.7-Rak Kumar Vishwakarama, who submitted the charge-sheet. 17. Learned Amicus curiae vehemently argued that barring the evidence of P.W.3 the child witness Shivam Srivastava there is no direct evidence against the appellant. Evidence of P.W. 1 and 2 relates to the cruelty part. He could not complete the investigation, therefore, investigation was handed over to P.W.7-Rak Kumar Vishwakarama, who submitted the charge-sheet. 17. Learned Amicus curiae vehemently argued that barring the evidence of P.W.3 the child witness Shivam Srivastava there is no direct evidence against the appellant. Evidence of P.W. 1 and 2 relates to the cruelty part. Learned counsel argued that prosecution evidence is based on two folds theory first part is upto investigation that means the deceased has committed suicide and the second part of the prosecution is the demand of dowry on the basis of evidence of P.Ws.1 and 2. Alternate theory is that the appellant committed murder of his infants son and daughter and this has been elaborated by the evidence of P.W.-3 an eye-witness. P.W.-3 is son of the appellant and now under the custody of P.Ws. 1 and 2 and all the information which P.Ws.1 and 2 gathered was through P.W.-3 on the pretext that child when came out of dilemma narrated the awful tale and then the prosecution story started moving. The prosecution has also initiated the move that the appellant is also guilty of causing murder of his daughter and infant son by killing them intentionally. Therefore, the prosecution took as many folds as they could have taken. The prosecution changed its colours off and on as it suited to them, therefore, the prosecution is based on a pool of contradictions. They have never been certain as to what has happened, sometime they said that it was suicide and in the next breath they propounded the theory of dowry death and lastly they allege intentional murder of infants. Learned counsel pointed out that story of Section 304-B I.P.C. is ruled out easily because there was no question of demand of dowry. At the most, they can allege that the appellant treated his wife with cruelty because they quarreled off and on and then separated by agreement Ext.Kha-1 but it was not the question of demand of dowry. Had there been demand of dowry then the facts should have been otherwise. It is apparent from the agreement Ext. Kha.1. that there is nothing like demand of dowry, therefore, question of dowry death is easily ruled out. 18. Had there been demand of dowry then the facts should have been otherwise. It is apparent from the agreement Ext. Kha.1. that there is nothing like demand of dowry, therefore, question of dowry death is easily ruled out. 18. Section 304-B. Dowry death is reproduced as below : “(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.” Explanation.—For the purpose of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which shall not less than seven years but which may extend to imprisonment for life.” 19. It is necessary to go through the provisions of Section 2 of the Dowry Prohibition Act, 1961, which is reproduced as under : 2. Definition of ‘dowry’.—In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly — (a) by one party to a marriage to the other party to the marriage; or (b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies. 20. Therefore, ‘dowry’ as explained by Section 2 above should be in consonance with Section 113-B of the Evidence Act because there are certain presumptions which are very relevant but this presumption shall be raised only on proof of the following essentials : (1) The question before the Court must be whether the accused has committed the dowry death of a woman. (2) The woman was subjected to cruelty or harassment by her husband or his relatives. (2) The woman was subjected to cruelty or harassment by her husband or his relatives. (3) Such cruelty or harassment was for, or in connection with, any demand for dowry. (4) Such cruelty or harassment was soon before her death. 21. Ingredient No. 3 clearly indicates harassment and cruelty should be regarding dowry. Here the admitted part, the agreement Ext.Kha.1 between the parties, itself suggests that they consented to live separately because of their differences and not because of demand of dowry. 22. Learned Amicus curiae has placed reliance on the decision of Hon’ble Apex Court in the case of Sampath Kumar v. Inspector of Police Krishnagiri, (2012) 2 SCC (Cri) 42. In para 21 of the said judgement the Hon’ble Supreme Court held as under : “In Narayan Chetanram Chaudhary v. State of Maharashtra, (2000) 8 SCC 457 , this Court held that while discrepancies in the testimony of a witness which may be caused by memory lapses were acceptable; contradictions in the testimony were not. This Court observed : (SCC p.483 para 42) “42. Only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the testimony of witness unreliable. When the version given by the witness in the Court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution becomes doubtful and not otherwise. Minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and the sense of observations differ from person to person.” 23. It has also been held in Gurdial Singh’ Case, (1974) 4 SCC 494 . In para 21 Supreme Court held as under : “21. The present is a case wherein the prosecution witnesses have come out with two inconsistent versions, of the occurrence. On version of the occurrence is contained in the evidence of the witnesses in Court, while the other version is contained in their statements made before the police. ... In view of these contradictory versions, the High Court, in our opinion, rightly came to the conclusion that the conviction of the accused could not be sustained.” 24. On version of the occurrence is contained in the evidence of the witnesses in Court, while the other version is contained in their statements made before the police. ... In view of these contradictory versions, the High Court, in our opinion, rightly came to the conclusion that the conviction of the accused could not be sustained.” 24. Learned Amicus curiae argued that he is trying to indicate that it was not a dowry death, the contradictions of the witnesses itself suggest that the matter was somewhat different, and it was projected in such a manner only to implicate the appellant. 25. Learned counsel has also cited the case of Orsu Venkat Rao v. State of A.P., 2005 SCC (Cri) 166, regarding evidenciary value of testimony of child witness. In para 5 of the judgment the Hon’ble Supreme Court has held as under : “The question is whether it is safe to act on the evidence on these two child witnesses who were aged 6 and 10 at the time of incident. There are certain glaring facts which cast a serious doubt on the veracity of the prosecution version based on the evidence of Pws.2 and 16. Till the inquest concluded on the evening of 5.3.1993, according to the prosecution, the boys who are alleged to have seen the actual incident were not examined nor did they reveal anything to anyone including maternal grandparents. Even PW 1, the maternal uncle of the boys does not say a word as to whether any enquiries were made from the boys and what their response was. To cover up these improbabilities. PW.2 came forward with a version that at about 7.00 or 9.00 p.m., his maternal grandparents came and enquired in the absence of their father and then they told them as to how their mother died. This statement in the chief examination gives an impression that PW 2 was tutored to give such evidence to find an explanation for their alleged belated revelation and to buttress the prosecution version that they gave the details of the version for the first time to PW20 only in the night of 5.3.1993 after he and his brother went back to Garla. But this prosecution version has been shattered by the categorical statement of PW2 that on the date of complaint itself he gave his statement to the police at Wyra. But this prosecution version has been shattered by the categorical statement of PW2 that on the date of complaint itself he gave his statement to the police at Wyra. In fact, PW 16 stated that after the police came and saw the dead body of his mother, his maternal grandparents and uncles asked him as to how his mother died. It shows that the version of Pws 2 and 16 was very much within the knowledge of their maternal grandparents and PW 1 and there is no reason why they withheld the information from the police.” 26. Learned Amicus curiae thus argued that testimony of child witness P.W.3 is not worthy of reliance because the F.I.R. was lodged on 7.10.1990 whereas the occurrence took place 5.10.1990 and the prosecution has not explained why the F.I.R. was not lodged for two days but only explanation was given “as soon as they were apprised of the happening they lodged the report” and there is strong contradiction when the unknown person who informed the police on 5.10.1990 has narrated otherwise and did not disclose that this child who has subsequently narrated different version has disclosed that no one except that his mother poured kerosene oil and set herself on fire killing herself and two children. The fact was that immediately after the incident the appellant appeared and took half burnt child to Balrampur Hospital for treatment. What was the reason for taking child to the hospital when he himself set them on fire ? This indicates that the prosecution’s version has been given a colour, truth was somewhat different. Regarding demand of dowry, learned Amicus curiae also cited the decision of Hon’ble Apex Court in the case of Modinsab Kasimsab Kanchagar v. State of Karnataka and another, (2013) 2 SCC (Cri) 511. In paras 9 and 11 of the said judgment the Hon’ble Supreme Court has described ingredients, which is reproduced as under: “9. What appears to have been lost sight of by the High Court is that the demand of Rs. 10,000 was not towards dowry but for payment of a society loan. In paras 9 and 11 of the said judgment the Hon’ble Supreme Court has described ingredients, which is reproduced as under: “9. What appears to have been lost sight of by the High Court is that the demand of Rs. 10,000 was not towards dowry but for payment of a society loan. The evidence of PW 2 on which the High Court has heavily relied upon in the impugned judgment for convicting the appellant is clear that when the deceased came to her house on the occasion of Holi festival and she demand money, she told her to ask from her uncle. Thus, the uncle of the deceased was the person who knew exactly what were the demands upon the deceased in connection with her marriage.” “11.Thus the demand of Rs. 10,000/- was not a dowry demand but was in connection with a society loan of Rs. 10,000 of the appellant. This Court in Appasaheb case, (2007) 9 SCC (Cri) 468 has referred to the provisions of Section 304-B I.P.C. And in particular the Explanation appended to sub-section (1) thereof which says that the word “dowry” under Section 304-B will have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 and has held that the word “dowry” in Section 304B of the IPC would, therefore, mean ‘any property or valuable security given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the parties’. In this case, the amount of Rs. 10,000/- was demanded by the appellant through the deceased was for repayment of a society loan of the appellant and it had no connection with the marriage of the appellant and the deceased. Hence, even if, there was demand of Rs. 10,000/- by the appellant, it was not a demand in connection with the dowry and the offence under Section 304-B was not attracted.” 27. Learned Amicus curiae further argued that there are reasons that prosecution failed to establish the case beyond reasonable doubt. Learned Amicus curiae has also placed reliance on the decision of Hon’ble Apex Court in the case of Appasaheb and another v. State of Maharashtra, (2007) 3 SCC (Cri) 468. Learned Amicus curiae further argued that there are reasons that prosecution failed to establish the case beyond reasonable doubt. Learned Amicus curiae has also placed reliance on the decision of Hon’ble Apex Court in the case of Appasaheb and another v. State of Maharashtra, (2007) 3 SCC (Cri) 468. In para 11 of the said judgment the Hon’ble Supreme Court held as under : “In view of the aforesaid definition of the word “dowry” any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. Therefore, the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well known social custom or practice in India. It is well-settled principle of interpretation of Statute that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning. (See Union of India v. Garware Nylons Ltd., AIR (1996) SC 3509 and Chemicals and Fibres of India v. Union of India, AIR 1997 SC 558 . A demand for money on account of some financial stringency or for meeting some urgent domestic expenses of for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. The evidence adduced by the prosecution does not, therefore, show that any demand for “dowry” as defined in Section 2 of the Dowry Prohibition Act was made by the appellants as what was allegedly asked for was some money for meeting domestic expenses and for purchasing manure. Since an essential ingredient of Section 304-B IPC viz. demand for dowry is not established, the conviction of the appellants cannot be sustained.” 28. Learned Amicus curiae categorically stated that ingredients of Sections 304-B I.P.C. are not attracted. Since an essential ingredient of Section 304-B IPC viz. demand for dowry is not established, the conviction of the appellants cannot be sustained.” 28. Learned Amicus curiae categorically stated that ingredients of Sections 304-B I.P.C. are not attracted. Learned counsel further pointed out that Ext.Kha.1, which is an agreement dated 6.1.1990 and has been admitted by P.W.2, clearly mentioned that the deceased and the appellant are separated and they will not be liable for any act towards each other and both were interested in dissolution of marriage. The deceased opted for custody of the children, therefore, when there was separation, there was no question of demand of dowry. The dowry demand arise only when the marriage is subsisting. The marriage of the appellant and deceased automatically came to halt after the execution of agreement. Then the question arises why the appellant will ask for dowry money from the deceased when they were averse to prolong the marriage tie ? This indicates that all the assertions made by P.Ws.1 and 2 are far from reality. Similarly the testimony of P.W. 3 cannot be relied upon because G.D. Entry of 5.10.1990 is very clear in this regard and it was the first information given by one Sri A.P.Singh to the police and till then there was nothing like causing death or murder. It was subsequent thought and the statement recorded four years after the incident is sufficient to put question mark. P.W.3 was living with P.Ws. 1 and 2 and was brain washed by them. Therefore, the prosecution has utterly failed to prove its case and the appellant is liable to be acquitted. At the most, he can be questioned regarding cruelty i.e. punishable under Section 498-A but even that will be highly prejudicial as Ext.Kha.1 clearly exonerate him from any liability of cruelty as his liability, if any, came to an end as soon as the document was executed with the consent of the parties. Therefore, the appellant is liable to be acquitted. 29. Replying to the arguments, Smt. Smiti Sahay, learned A.G.A. pointed out that Court may notice postmortem report, Ext.Ka.4 of Smt. Poornima. At the time of death she was not wearing even a single piece of jewelery, even Mangal Sutra. Her hand, neck and feet were all bare and without a piece of jewelery. 29. Replying to the arguments, Smt. Smiti Sahay, learned A.G.A. pointed out that Court may notice postmortem report, Ext.Ka.4 of Smt. Poornima. At the time of death she was not wearing even a single piece of jewelery, even Mangal Sutra. Her hand, neck and feet were all bare and without a piece of jewelery. This indicates that she was badly insulted, humiliated before the death, she had not even a single thread to wear to look like Suhagin. Her condition was pitiable. This alone point out that she was mal-treated and humiliated and the assertion of P.Ws. 1 and 2 stand verified that her ornaments were sold by the appellant to adjust the demand of dowry. He was in lust of money and off and on he demanded the money and his lust was satisfied by selling her jewelery. This fact is very apparent from the inquest report Ext. Ka-11 that there was nothing except the burnt clothes stick to her body and she was not found wearing even bangles or a piece of jewelery. Column No. 6 of the Ext.Ka-11 is very clear in this regard. P.W.9 has conducted the inquest proceedings and he has collected kathri, pillows, kerosene bottle, together with match box and prepared memo regarding that. P.W. 9 has stated these facts before the Court at the time of recording the evidence on 3.12.1996. The persons who conducted the Panchnama were of the opinion that there was constant quarrel between the husband and wife and they used to beat each other. They used to live together on persuasion of few respectable persons of the society and that is why they often changed house and the death was the result of matrimonial differences. Thus, the prosecution stand can be summarized as follows : “1. Death occurred within seven years of the marriage of the deceased. The marriage took place on 13.12.1984 and death was caused barely two months less than seven years. ; 2. Death was unnatural and there is no dispute about it. ; 3. Treatment of the appellant with the deceased remained cruel. 4. Soon before the death she was subjected to dowry.” 30. The prosecution examined P.W.1 and P.W.2 to prove this fact. Regarding previous three ingredients there is no need to furnish any evidence because there is no dispute that the marriage took place on 13.12.1994 i.e. within seven years of the death. 4. Soon before the death she was subjected to dowry.” 30. The prosecution examined P.W.1 and P.W.2 to prove this fact. Regarding previous three ingredients there is no need to furnish any evidence because there is no dispute that the marriage took place on 13.12.1994 i.e. within seven years of the death. There is no dispute that the treatment of the appellant was cruel vide Ext.Kha.1, which has been relied by the appellant, itself suggest that there was extreme cruelty and death was unnatural and to prove last ingredients prosecution examined P.Ws.1 and 2. Both these witnesses verified their statements that how immediately before the death i.e. on the intervening day she came and beg for money for satisfying dowry demand. P.W.2 arranged meager sum of Rs. 400/- against the demand of Rs. 5000/- by pledging her ornament. P.W.2 also in her statement on oath specified that the deceased immediately before the death when came to beg for money was neither wearing bangles nor had put on sindoor on her forehead. She was not wearing Bichchia etc. These facts are to be noticed and these are unchallenged facts. Therefore, the case against the appellant is proved beyond reasonable doubts under Sections 304-B and 498-A I.P.C. The facts have been supplemented by P.W.2 also and the evidence of P.W.3 was recorded when the Court was of the opinion that he is competent to depose i.e. he is capable of understanding. He narrated how his mother was treated and how kerosene oil was poured on the infant son and daughter and his father ignited fire by using match box. He tried to put on fire but to no avail. His mother and sister succumbed to burn injuries. He could save himself but his father poured kerosene oil upon him also. Therefore, the case under Section 302 I.P.C. is proved beyond all reasonable doubt. This evidence has been supported by link evidence of independent witness i.e. Doctor, therefore, case against the appellant has been established beyond all reasonable doubt and this appeal is liable to be dismissed. He is guilty of committing shameful, hateful, ruthless and ignoble act. He be sentenced to death for this deliberate act. 31. Heard Sri A.P. Misra, learned Amicus curiae, Smt. Smiti Sahay, learned A.G.A. and perused the evidence on record as well as citations submitted by the respective parties. 32. He is guilty of committing shameful, hateful, ruthless and ignoble act. He be sentenced to death for this deliberate act. 31. Heard Sri A.P. Misra, learned Amicus curiae, Smt. Smiti Sahay, learned A.G.A. and perused the evidence on record as well as citations submitted by the respective parties. 32. The allegations against the appellant are that he caused dowry death by burning his wife Smt.Poornima Srivastava and also murdered his two children Master Subham and Sweta, therefore, allegations are basically of causing death for want of dowry under Section 304-B I.P.C. and causing intentionally death of the children under Section 302 I.P.C. and also treating his wife with cruelty and demand of dowry. Learned lower Court vide its judgment and order found the accused guilty of under Sections 304-B, 498-A and also 302 I.P.C. for killing two infants. The appellant has challenged this order and in this Court has to scrutinize all the assertions and form an opinion. 33. Learned trial Court based on its findings on evidence of 11 witnesses recorded during trial, the details of which have already been elaborated in the discussions made above. The point which was not elaborated during discussions is Ext.Ka-9. Ext. Ka-9 is an information by one Sri A.P. Singh which was given to police station Gomati Nagar, Lucknow at 11:30 p.m. regarding the incident that took place in his neighbourhood mentioned that a lady and a child was burnt to death and another infant came running from the house and in the meantime the father of the burnt child also appeared and narrated to them that another child also sustained burn injuries and he had taken him to hospital for treatment. The man introduced himself as Rakesh Srivastava, an employee of Jal Nigam.The information was recorded in G.D. No. 30 at 14:15 hours. The important thing is that written complaint Ext.Ka-1 was filed subsequently by P.W.1 alleging foul play. There was no suspicion till the F.I.R. was not lodged by P.W.1. Initially, the allegations were not levelled against the appellant, it was subsequent thought that P.W.1 and P.W.2 set the machinery in motion and then the theory was developed that soon before the death i.e. on previous day of the death, the appellant demanded Rs. 5000/- from the deceased and when she denied then she was beaten up badly and what happened in between has been stated in Ext. Ka-1. 5000/- from the deceased and when she denied then she was beaten up badly and what happened in between has been stated in Ext. Ka-1. P.W.1 and P.W.2 has alleged that causing of death by the appellant was immediate result of non-fulfillment of demand. The appellant admitted his half burnt son in the hospital leaving behind his wife and daughter in burning condition. Allegation have been levelled against the appellant that cruel treatment meted to the deceased was a routine feature. The case has been registered against the appellant under Sections 498-A, 304 in Case Crime No. 94 of 1990 as it is apparent from G.D. Ext.Ka-3 on the complaint by P.W.1 on 7.10.1990 at 9.45 hours. The cause of delay has also been explained by P.W.1 during his examination. P.W.2 wife of the complainant corroborated his testimony and narrated that a day before the occurrence the deceased came to them and begged for payment of money as the appellant had demanded from her. P.W.2 clarified the stand that she could collect the meager amount i.e. Rs. 400/- by pledging her Payal due to compulsive begging by her daughter to fulfill the demand. The statement of P.W.2 regarding condition of the deceased attract the facts of the case when she alleged that the deceased was not wearing even a single thread of jewelery, not even the Mangalsutra to exhibit the subsistence of the marriage, there was no mark of Sindoor on her forehead. She was seen in her poor attire and not a single bangle or any sign of being married was visible. P.W.-2 escorted her upto her house of the appellant and waited for the return of appellant but when he did not turn up then she returned. These two witnesses of the prosecution has established following things in their testimony : 1. Demand of dowry. 2. Cruel treatment with the deceased. 3. Soon before the death she was subjected to demand of dowry. 4. Death was unnatural. 5. Death took within seven years of the marriage i.e. on 5.10.1990 and then marriage took place in December 1984 i.e. within seven years of the marriage. 34. During the reply Amicus curiae rebutted these charges pointed out that the Court may analyze these facts in the light of Ext.Kha-1 which was executed on 6.9.1990 between the parties and witnessed by both the P.Ws. 34. During the reply Amicus curiae rebutted these charges pointed out that the Court may analyze these facts in the light of Ext.Kha-1 which was executed on 6.9.1990 between the parties and witnessed by both the P.Ws. The facts are very important in the light of Ext. Ka-9, the First Information Report was given to the police by the stranger and neighbour A.P. Singh. 35. The Apex Court in the case of Appasaheb and another v. State of Maharashtra (Supra) in which in para 11, it has been held that giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. Hon’ble Apex Court has clearly laid down 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”. The Apex Court in Modinsab Kasimsab Kanchagar v. State of Karnataka and another (Supra), has also laid down in paras - 2, 3, 4 and 6 “ that the demand of Rs. 10,000/- was made after the marriage, Rs. 2000/- was paid but the balance of Rs. 8000/- could not be paid because of which the deceased was harassed and she committed suicide. The demand of Rs. 10,000/- was, therefore, not towards dowry but was for repayment of a society loan. Hon’ble Apex Court has upheld this ratio in Appasaheb and another v. State of Maharashtra (Supra). Therefore, the definition of demand of dowry is entirely different. This Court has to reach on the conclusion after going through the Apex Court ratio quoted above. 36. To analyze these facts critically, and to reach a certain conclusion, it is necessary to go through the evidence of P.W.3 the star witness. This witness is the son of the appellant who escaped unburnt from fire which was allegedly ignited by the appellant. A bare perusal of the statement of witness shows that his mother, younger brother and sister and he himself were sleeping outside the kitchen. His father came with can of kerosene oil and poured on every one. They got awaken due to smell of kerosene oil. A bare perusal of the statement of witness shows that his mother, younger brother and sister and he himself were sleeping outside the kitchen. His father came with can of kerosene oil and poured on every one. They got awaken due to smell of kerosene oil. They were frightened by the father who threatened that in case they raise alarm they will be killed and he torched fire by lighting the stick of match box on them. The child immediately ran away and raised alarm. At that moment his father again threatened that his mother, sister and brother will be killed. He tried to pour the water to subside the fire. Father immediately slipped away. The witness stated that his brother and sister were burnt to death. He tried to pull out younger brother who was weeping and in the meanwhile his father came and took the brother who subsequently died in hospital and thereafter the witness saw the dead body of his brother in the hospital. During the argument learned counsel for the appellant tried to point out that his testimony is unworthy of reliance, firstly, because he is a child witness, secondly, on the ground that it is against testimony of Investigating Officer who subsequently visited the place of occurrence but did not find any drum of water and source of water or Mug which was used by witness for putting off the fire. 37. I have gone through the testimony of P.W.3 carefully. P.W. 3 is basically a child and at the time of recording evidence he was 8 years old and his evidence was recorded in the month of February 1994 while the incident took place on 5.10.1990, that means about three and half year back. Thus at the time, i.e. at the time of incident, he was only four and half years old and whatever has been deposed by him was on the basis of his memory of three and half years back. Although no body can forget this type of incident during whole life but so far as the child is concerned his psychology and memory cannot be equated with the grown up person. The other important thing is that during this period he has been under the control of grand parents who are at daggers drawn with the appellant and they are the persons who lodged the report against him. The other important thing is that during this period he has been under the control of grand parents who are at daggers drawn with the appellant and they are the persons who lodged the report against him. In the case of Orsu Venkat Rao v. State of A.P. (Supra) Hon’ble the Apex Court has given the ratio regarding the evidenciary value of the child’s testimony. In that case (Supra) two other children were not examined although they were 6 years and 10 years of age respectively. The other persons have been examined who gathered the information from the child. In that case (Supra) Hon’ble the Apex Court has held that the boy did not reveal to any one including the grand parents regarding the actual incident but subsequently one child came forward who was later examined as P.W.-2. Grand parents came and inquired in the absence of their father and then they told them as to how their mother died. Hon’ble the Apex Court has clearly mentioned in the aforesaid ruling “But this prosecution version has been shattered by the categorical statement of PW2 that on the date of complaint itself he gave his statement to the police at Wyra. In fact, PW 16 stated that after the police came and saw the dead body of his mother, his maternal grandparents and uncles asked him as to how his mother died. It shows that the version of Pws 2 and 16 was very much within the knowledge of their maternal grandparents and PW 1 and there is no reason why they withheld the information from the police.” In the instant case too P.W.-1 and P.W.2 both were informed through P.W.3 regarding the death but they waited for lodging the F.I.R. only on 7.10.1990 whereas the incident took place on 5.10.1990. Since the death is notorious event and whereabouts of P.W.3 have not been shown as per testimony of P.Ws.1 and 2 then the question is where he stayed during this period because as per the prosecution story when he witnessed the incident, he must have been shocked and frightened. Therefore, the question is as to why the F.I.R. has not been lodged immediately ? 38. Therefore, testimony of this witness is not fully reliable. Therefore, the question is as to why the F.I.R. has not been lodged immediately ? 38. Therefore, testimony of this witness is not fully reliable. In the instant case, there is one more important fact that the matter was first time reported to the police by one A.P. Singh on 5.10.1990 at about 14.15 hrs. His information has been recorded in the G.D. on 5.10.1990 at Police Station Gomti Nagar, Lucknow. This man has not been examined in the evidence but G.D. has been exhibited as Ext. Ka.9. This G.D. says that this man has informed at about 1.30 p.m. that in his neighbourhood one woman and a child was burnt to death and another child was running and after sometime father of the burnt child, Rakesh Srivastava, informed him that his another son has also sustained burn injuries and has been admitted in the hospital by him. This G.D. has been recorded on the basis of the statement of an independent neighbour who has nothing to do with the act and this is relevant under Section 6 of the Evidence Act, as circumstances of same transaction. P.W.3 is elder son of the appellant who escaped unhurt but he has been escorted by grand parents and the way he described the incident is not in consonance with the documentary evidence. He has described that he has tried to put off the fire by pouring water which he took from the Drum. The Investigating Officer did not corroborate this fact. Therefore, the evidence of P.W.3 is not worthy of reliance. 39. Learned trial Court believed the evidence of P.W.3 and sentenced the appellant under Section 302 I.P.C. also. But the entire documentary evidence as well as the oral evidence does not show as to how other two infants were killed. Therefore, it would not be appropriate to sustain the lower Court order convicting the appellant under Section 302 I.P.C. for causing the death of his son and daughter because the other fact is also very important that this man has escorted his half burnt child to Balrampur Hospital, Lucknow for treatment. Had he killed them why he would have escorted his half burnt son for treatment to Hospital ? Had he killed them why he would have escorted his half burnt son for treatment to Hospital ? Therefore, this much part of the judgment is not liable to be sustained and getting the benefit of doubt, the appellant is entitled to be acquitted of the charge under Section 302 I.P.C. only. 40. As far as charge under Section 304-B I.P.C. is concerned this is very material that death took place on 5.10.1990 and marriage was solemnized in the December 1984 i.e. (1) death took place within seven years of marriage (2) the death was unnatural caused by burn injuries. (3) soon before the death, i.e. one day before she was subjected to demand of dowry and P.Ws. 1 and 2 have given clear evidence regarding this incident, and (4) the appellant used to treat the deceased with cruelty. It is admitted case of the appellant that Ext. Kha.1 was executed between the two and this was a document which was executed under extreme circumstances that means there was no possibility of either one to reconcile. Since the marriage was not dissolved, both of them had no option but to remain calm. But since there was mutual hatred and often temper ran high, the incident took place. The presumption is that under these circumstances the appellant has caused the dowry death. The piercing evidence is that the deceased was humiliated and tortured to such extent that she had nothing to wear even the single thread of jewelery because Hindu customary traditions are that even the woman of lowest rank used to put on certain golden/silver ornaments like Bichchia, Mangal Sutra and Bangles to exhibit the sign of being married. The inquest report reveals that there was nothing except the burnt clothes on her body. Therefore, every piece of evidence points out that she was shabbily treated and tortured to death. So the case against the appellant under Sections 304-B I.P.C. and 498-A I.P.C. stands proved. 41. The appeal is, therefore, allowed in part. The appellant is acquitted of the charge under Section 302 I.P.C. but his conviction is maintained under Sections 304-B I.P.C. and 498-A I.P.C. with slight modification of sentence. He is sentenced to three years’ rigorous imprisonment under Section 498-A I.P.C. and 20 years’ rigorous imprisonment under Section 304-B I.P.C. All the sentences shall run concurrently. The appellant is in jail since 21.9.1991. He is sentenced to three years’ rigorous imprisonment under Section 498-A I.P.C. and 20 years’ rigorous imprisonment under Section 304-B I.P.C. All the sentences shall run concurrently. The appellant is in jail since 21.9.1991. He be released after serving out the aforesaid sentence, if not wanted in any other case.