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2013 DIGILAW 364 (ALL)

Babu and Another v. State of U. P.

2013-01-31

SURENDRA VIKRAM SINGH RATHORE

body2013
Surendra Vikram Singh Rathore, J.— 1. These appeals were earlier heard and allowed by this Court vide judgment and order dated 13.3.2003. Against which, the State went in appeal and the Hon'ble Apex Court on 15.2.2011, in Criminal Appeal Nos. 552-553 of 2005, passed the following orders:- "... we set aside the impugned order of the High Court and remit the matter to the High Court for fresh disposal. Since the subject matter relates to appeals of the year 1991, we request the High Court to rehear the appeals after affording opportunity to both parties and pass a considered order within a period of six months from the date of the receipt of the copy of this order." 2. Heard learned counsel for the parties and perused the record. 3. By means of instant Criminal Appeal, the judgment and order dated 18.1.1991 passed by the V-Additional Sessions Judge, Hardoi, in S.T. No. 100/90, State Vs. Nanhey and another, has been challenged, whereby the appellants Nanhey and Babu were convicted and sentenced to undergo rigorous imprisonment for a period of two years and also with fine of Rs. 1000/- each with default stipulation, for the offence under Section 498-A IPC they were convicted and sentenced to undergo 7 years rigorous imprisonment with fine of Rs. 5000/- each with default stipulation for the offence under Section 304-B IPC. Both the sentences were directed to run concurrently. 4. In brief, prosecution case was that the marriage of the deceased Smt. Madhuri, aged about 19 years, took place with the appellant Nanhey about four years ago from the date of her death. Co-accused Babu, is the elder brother of the husband of Smt. Madhuri. Smt. Madhuri gave birth to a female child who at the time of incident was aged about 9 months. Both the appellants were living in the same house. After marriage of the appellant Nanhey with the deceased, it is alleged that she was treated with cruelty in connection with the demand of dowry. There was demand of one Cycle and one Transistor from her parents at the time of marriage and in this connection, appellants Babu and Nanhey had also talked with the complainant and his father. 5. After marriage of the appellant Nanhey with the deceased, it is alleged that she was treated with cruelty in connection with the demand of dowry. There was demand of one Cycle and one Transistor from her parents at the time of marriage and in this connection, appellants Babu and Nanhey had also talked with the complainant and his father. 5. Since the financial condition of the parents of the deceased was not good enough at the time of marriage, therefore, they had assured the appellants that their demand shall be fulfilled at proper time and because of this reason the appellants subjected Smt. Madhuri with cruelty and harassment. On 3.4.1989 the deceased had come to participate in the last ceremony of her 'Bhabhi' along with appellant Nanhey. After attending the last ceremony they came back to their house, where she was beaten by the appellants and after beating she was hanged by the appellants because of which she died. When the complainant and his father got information regarding the occurrence, the complainant his father and other persons came to the village Udaipur and found Madhuri dead. 6. It was alleged that Smt. Madhuri was hanged by the appellants after beating and subjecting her to cruelty and harassment in connection with the demand of dowry. On 4.4.1989. When the complainant made an effort to lodge an FIR of the occurrence, accused persons made 'Garabandi' on the way, hence he could not lodge the FIR due to fear of the accused and thereafter he moved a typed complaint to the Superintendent of Police, Hardoi on 12.4.1989 i.e. about 8 days after the occurrence. 7. On the basis of the said complaint, the case was registered and the jurisdictional police investigated the case and after completing investigation the charge sheet was submitted. 8. The inquest proceedings of the dead-body of Smt. Madhuri took place on 5.4.1989 and her father Bhaiya Lal was a Panch in the said inquest report. After postmortem the dead body was handed over to the appellant Nanhey, who performed the last rituals. In the postmortem report the following injuries were found on the person of the deceased. (i)Ligature mark 26 cm x 2 c.m. present around neck between larynx and chin above the thyroid cartilage obliquely placed on the left side of the neck, just below and behind the neck left ear. In the postmortem report the following injuries were found on the person of the deceased. (i)Ligature mark 26 cm x 2 c.m. present around neck between larynx and chin above the thyroid cartilage obliquely placed on the left side of the neck, just below and behind the neck left ear. On dissection S/C tissues were found very hard and ligature margins were congested. Cause of death was asphyxia as a result of hanging. No other injury was found on the person of deceased. 9. Prosecution in order to prove its case has examined P.W.-1 Ram Krishna, complainant, brother of the deceased, P.W. 2-Bhaiya Lal, father of the deceased, P.W.3- Head Constable Kailash Singh, who has scribed the chick report. P.W.4- Sub-Inspector Sngram Singh Rathore, who has completed the inquest proceedings. P.W.5 Doctor Vinod Kumar Singh, who conducted the postmortem and has proved the same. P.W. 6 Constable Mahngoo Yadav, who has taken the dead body in sealed condition for postmortem. P.W.7 Dy. S.P.- C.O. City, Hardoi, who has conducted the investigation and has given details of the investigation in his evidence. 10. The defence of the accused-appellants was that there was no demand of dowry. Deceased with her husband was living peacefully. There was absolutely no complaint regarding the demand of dowry or any resultant treatment with cruelty. At the time of inquest all the members of the family of the deceased were present but at that time no complaint was made to any police personnel, who were present there and it was mentioned in the inquest report that the deceased was suffering from stomach pain due to which she has committed suicide. The complainant works with an advocate, namely, Mr. Ramkrishna Gupta and on his instigation and with due consultation this false case was cooked up against them only to extract money from the appellants. The appellants had examined D.W.1. Baburam son of Bhoodhar in their defence. Finding of the trial court. 11. After considering the entire evidence on record, the trial court held that delay in FIR is well explained and the prosecution has proved its case that deceased was subjected to cruelty in connection with the demand of dowry. Her death is unnatural . She died within seven years of marriage. Finding of the trial court. 11. After considering the entire evidence on record, the trial court held that delay in FIR is well explained and the prosecution has proved its case that deceased was subjected to cruelty in connection with the demand of dowry. Her death is unnatural . She died within seven years of marriage. Both the appellants were living in the same house and therefore both the charges were held to be proved against the appellants and they were convicted accordingly. 12. In the instant appeal, it is submitted by the learned counsel for the appellant that learned trial court has not considered the evidence on record in correct perspective. There was absolutely no evidence on the point that soon before her death the deceased was subjected to cruelty. The FIR came into existence in utter suspicious circumstances and the explanation of delay is unbelievable. Trial Court committed error in holding otherwise. There was absolutely no mark of any other injury on the body of the deceased which falsifies the prosecution story. Trial Court committed error in relying on the injuries mentioned in inquest report. 13. It is further submitted that only two witnesses of facts were examined. The evidence regarding demand of dowry is full of contradictions and is unbelievable. It is further submitted that it has come in evidence that after marriage the deceased and her husband used to frequently visit the house of the complainant, it shows that no restriction was imposed by the appellants, regarding her visits to the house of her parents, which shows that relation between the two family were very cordial and this by itself negatives the allegation of demand of dowry. 14. It is submitted that virtually it was the case of no evidence. The essential ingredients of Section 304-B IPC were not established. There was no reliable evidence regarding the demand of dowry but the trial court only on the basis of presumption has convicted the appellants while the conditions which are necessary to raise the presumption were not fulfilled. 15. It is submitted on behalf of the State that in this case the deceased had died unnatural death in the house of the appellants, therefore, under Section 106 of the Indian Evidence Act, the burden lies on them to show as to under what circumstance she died. 15. It is submitted on behalf of the State that in this case the deceased had died unnatural death in the house of the appellants, therefore, under Section 106 of the Indian Evidence Act, the burden lies on them to show as to under what circumstance she died. It is further submitted that in the inquest report some other injuries were also found and noted in the inquest memo which shows that she was subjected to cruelty before her death. 16. Before examining rival contentions, a perusal section 304B IPC (dowry death) is necessary. For successfully constituting the said charge on an accused, prosecution has to prove convincingly, free from all reasonable doubts, following ingredients to constitute the offence of dowry death. Firstly, that seven years had not lapsed from the date of solemnization of the marriage and death of wife, secondly, that soon before her death deceased was tortured in connection with demand of dowry by her husband or his relatives, thirdly, that her death was due to burn or bodily injury or otherwise than under normal circumstances, fourthly that the deceased was tortured soon before her death for dowry demand. If these ingredients are proved convincingly, husband and/or his relatives cannot be absolved of the offence of causing dowry death. Explaining and elaborating ingredients of said offence apex court has held in Hira Lal versus State (Govt. of NCT) Delhi : AIR 2003 SC 2865 as under:- "The provision has application when 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 relatives of her husband for, or in connection with any demand for dowry. In order to attract application of S. 304-B, I.P.C. the essential ingredients are as follows:- (i)The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance. (ii) Such a death should have occurred within seven years of her marriage. (iii)She must have been subjected to cruelty or harassment by her husband or any relative of her husband. (iv)Such cruelty or harassment should be for or in connection with demand of dowry. (ii) Such a death should have occurred within seven years of her marriage. (iii)She must have been subjected to cruelty or harassment by her husband or any relative of her husband. (iv)Such cruelty or harassment should be for or in connection with demand of dowry. (v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death." 17. Subsequently also it has been held in Baldev Singh versus State of Punjab:AIR 2009 SC 213 as under:- "6. In order to attract Section 304B IPC, the following ingredients are to be satisfied. i)The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances. ii) Such death must have occurred within 7 years of the marriage. iii) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or any relative of her husband; and iv) Such cruelty or harassment must be in connection with the demand of dowry." 18. It will be worthwhile to note here that legislature in it's wisdom has enacted section 113 B in the Evidence Act providing further teeth to the prosecution in establishing charge of dowry death by providing a presumption in respect of that offence. This aspect has been considered by the apex court in Hira Lal (Supra) wherein it has been held as under:- "Section 113-B of the Evidence Act is also relevant for the case at hand. Both S. 304-B, I.P.C. and S. 113-B of the Evidence Act were inserted as noted earlier by the Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113-B reads as follows :- "113-B. Presumption as to dowry death.- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation- For the purposes of this section 'dowry death' shall have the same meaning as in S. 304-B of the Indian Penal Code (45 of 1860)." The necessity for insertion of the two provisions has been amply analyzed by the Law Commission of India in its 21st Report dated 10th August, 1988 on 'Dowry Deaths and Law Reform.' Keeping in view the impediment in the pre-existing law in securing evidence to prove dowry related deaths, legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background presumptive S.113-B in the Evidence Act has been inserted. As per the definition of 'dowry death' in S. 304-B, I.P.C. and the wording in the presumptive S. 113-B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the concerned woman must have been "soon before her death" subjected to cruelty or harassment "for or in connection with the demand of dowry." Presumption under S. 113-B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the Court to raise a presumption that the accused caused the dowry death. The 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. (This means that the presumption can be raised only if the accused is being tried for the offence under S. 304-B, I.P.C.). (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. 19. A conjoint reading of S. 113-B of the Evidence Act and S. 304-B, I.P.C. shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the 'death occurring otherwise than in normal circumstances. The expression 'soon before' is very relevant where S. 113-B of the Evidence Act and S. 304-B, I.P.C. are pressed into service. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the 'death occurring otherwise than in normal circumstances. The expression 'soon before' is very relevant where S. 113-B of the Evidence Act and S. 304-B, I.P.C. are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. 'Soon before' is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period of "soon before the occurrence". It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under S. 113-B of the Evidence Act. The expression 'soon before her death' used in the section 304-B, I.P.C. and S.113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression 'soon before' is not defined. The determination of the period which can come within the term 'soon before' is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression 'soon before' would normally imply that the interval should not be much between the alleged act of cruelty or harassment and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence. 20. This Court is of the considered view that the concept of reasonable time is the best criteria to be applied for appreciation and examination of such cases. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence. 20. This Court is of the considered view that the concept of reasonable time is the best criteria to be applied for appreciation and examination of such cases. Hon'ble Apex Court in the case of Tarsem Singh v. State of Punjab [ AIR 2009 SC 1454 ]: held that the legislative object in providing such a radius of time by employing the words 'soon before her death' is to emphasize the idea that her death should, in all probabilities, has been the aftermath of such cruelty or harassment. In other words, there should be a reasonable, if not direct, nexus between her death and the dowry related cruelty or harassment inflicted on her. 21. Similar view was expressed by Hon'ble Apex Court in the case of Yashoda v. State of Madhya Pradesh (2004)3 SCC 98 ; where Hon'ble Apex Court stated that determination of the period would depend on the facts and circumstances of a given case. However, the expression would normally imply that there has to be reasonable time gap between the cruelty inflicted and the death in question. If this is so, the legislature in its wisdom would have specified any period which would attract the provisions of this Section. However, there must be existence of proximate link between the acts of cruelty along with the demand of dowry and the death of the victim. For want of any specific period, the concept of reasonable period would be applicable. Thus, the cruelty, harassment and demand of dowry should not be so ancient where after, the couple and the family members have lived happily and that it would result in abuse of the said protection. Such demand or harassment may not strictly and squarely fall within the scope of these provisions unless definite evidence was led to show to the contrary. These matters, of course, will have to be examined on the facts and circumstances of a given case. 22. In Tarsem Singh v. State of Punjab: AIR 2009 SC 1454 it has been held by the apex court as under:- "Presumption in terms of Section 113B is one of law. These matters, of course, will have to be examined on the facts and circumstances of a given case. 22. In Tarsem Singh v. State of Punjab: AIR 2009 SC 1454 it has been held by the apex court as under:- "Presumption in terms of Section 113B is one of law. On proof of the essentials mentioned therein, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. The 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. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304B, IPC.) (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." 23. Hon'ble Apex Court in the case of Durga Prasad and another Vs. State of Madhya Pradesh [(2010) 9 Supreme Court Cases 73; has held in para 17 as under:- "As has been mentioned herein before, in order to hold an accused guilty of an offence under Section 304-B IPC, it has to be shown that apart from the fact that the woman died on account of burn or bodily injury, otherwise than under normal circumstances, within 7 years of her marriage, it has also to be 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. Only then would such death be called " dowry death" and such husband or relative shall be deemed to have caused the death of the woman concerned." 24. The Hon'ble Apex Court again in the case of Amar Singh Vs. State of Rajasthan [ (2010) 9 SCC 64 ' has held in para 30 as under:- "30. In Kans Raj v. State of Punjab this Court cautioned that in cases where accusations of dowry deaths are made, the overt acts attributed to persons other than the husband are required to be proved beyond reasonable doubt and by mere conjectures and implications such relations cannot be held guilty for the offence relating to dowry deaths. In Kans Raj v. State of Punjab this Court cautioned that in cases where accusations of dowry deaths are made, the overt acts attributed to persons other than the husband are required to be proved beyond reasonable doubt and by mere conjectures and implications such relations cannot be held guilty for the offence relating to dowry deaths. In the aforesaid case, this Court further observed that a tendency has developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits." 25.In the case of Kans Raj Vs. State of Punjab [(2000) SCC (Cri) 935; the Hon'ble Apex Court has held that where question of dowry death are made, overt acts attributed to persons other than the husband are required to be proved beyond reasonable doubt and by mere conjectures and implications such relations cannot be held guilty for the offence relating to dowry deaths. Hon'ble Apex Court has further observed that tendency has developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. 26. Very lengthy arguments have been advanced regarding delay in FIR. FIR in every criminal trial is very important document. It is though not a substantive evidence but it is a vital document, on which the entire prosecution case rests. Purpose of the FIR is to bring the criminal law into motion and also to give the Investigating Officer a brief note of the allegations made against the accused persons. 27. Hon'ble Apex Court in the case of Jitendra Kumar Vs. State of Haryana 2012 (6) SCC page 204 has held that " Court has also to consider the fact that the main purpose of the FIR is to satisfy the police officer as to the commission of a cognizable offence for him to conduct the further investigation in accordance with law. The primary object is to state the criminal law into motion and it may not be possible to give every minor detail unmistakably in the FIR. The FIR is not a proof of crime. It is a piece of evidence which can be used for corroborating the case of the prosecution." 28. The primary object is to state the criminal law into motion and it may not be possible to give every minor detail unmistakably in the FIR. The FIR is not a proof of crime. It is a piece of evidence which can be used for corroborating the case of the prosecution." 28. In the instant case the occurrence is alleged to have taken place on 4.4.1989 while the FIR of this case was lodged on 13.4.1989. The application to the SSP was moved by the complainant on 12.4.1989, therefore, the FIR was lodged after a delay of 9 days, while admittedly the occurrence had come to the notice of the complainant and other family members of the deceased on the date of occurrence and they had visited the place of occurrence, participated in the inquest proceedings and also went up to the Hospital and thereafter handed over the dead body to the appellants. In this case there is a considerable delay in lodging the FIR. Hon'ble Apex Court in the case of Jitendra Kumar Vs. State of Haryana 2012 (6) SCC page 204 has considered the effect of delay in FIR on the prosecution case and has held that "it is a settled principle of criminal jurisprudence that mere delay in lodging the FIR may not prove fatal in all cases but in the giving circumstance of the case, delay in lodging the FIR can be one of the factors which carried the credibility of the prosecution version. The delay in lodging the FIR cannot be a ground by itself for throwing away the entire prosecution case. The Court has to seek an explanation over the delay and check the truthfulness of the version to be forwarded. If the Court is satisfied with the explanation then the case of the prosecution cannot fail on this ground alone." 29. It is true that if it is so found that the FIR has been lodged after a considerable delay and no satisfactory explanation is coming forward then an inference would rightly follow that the prosecution story may involve some facts after consultation, on the contrary if it is found that there is no delay in recording the FIR the prosecution story stands immeasurably strengthened. 30. 30. In the facts of the instant case P.W.1 and P.W. 2 who were witnesses of the fact, have supported the prosecution story and have made an effort to explain the delay which has been caused in lodging the FIR. On this point P.W. 1 in his examination-in-chief has stated that the police had not taken any action in the beginning, then he came to Hardoi and got the complaint typed and thereafter gave it to the SSP, Hardoi. There was also fear of the accused persons. He has proved this typed letter which is dated 12.4.1989 but by this statement the delay of 8 days can not be said to have been explained. Prior to this application, the complainant had not made any complaint to the police regarding any demand of dowry nor raised any suspicion on the appellants at the time of inquest proceeding. It is an admitted fact that several persons of the complainant side were present at the time of inquest. On the contrary it was mentioned in the inquest memo, in which the deceased's father was a Panch and it was conducted in the presence of several other family members of the deceased that she was disturbed by her stomach pain, due to which she has committed suicide, therefore, there was no occasion for the police to take any action. Hence the explanation that since the police had not taken any action, therefore, he moved application does not inspire confidence. His cross examination on the point of delay in FIR shows that he was working under Shri Ramkrishna Gupta Advocate. He has stated that in the night he has asked him to get the application typed as directed by him but subsequently this statement was changed and the witness has stated that advocate Gupta had said that you give application mentioning the true facts. He has admitted that he had given application to the SSP, Hardoi along with Shri Gupta Ji. He has also stated that he had written application after about 2-3 days after meeting Shri Gupta Ji advocate. This statement shows that the complainant got the legal advice to lodge the FIR and he also got legal assistance for the same but inspite of that no application was moved for 2-3 days and there is no explanation by the complainant regarding this delay. This statement shows that the complainant got the legal advice to lodge the FIR and he also got legal assistance for the same but inspite of that no application was moved for 2-3 days and there is no explanation by the complainant regarding this delay. However an effort has been made to explain this delay that the advocate Shri Gupta became ill, therefore, he moved the application when he recovered from his illness. He has admitted that Mr. Gupta had accompanied him to the office of the SSP, Hardoi. 31.The complainant has admitted in his cross examination that the inquest proceedings had taken place in his presence. The name of his father is Bhaiyalal but in the inquest proceedings it has wrongly mentioned as Bhaiya Swaroop. He has also admitted that dead body was sealed in their presence and all had given opinion that she had a stomach pain because of which she has committed suicide. It has also come in the evidence that information of this incident was sent by the appellant through his cousin who also happens to be related to the complainant's family. It has also come in evidence that the appellants and also other family members were present in the house and no effort was made by them to run away from the scene of occurrence. It has come in evidence that they were waiting for the complainant side to come. So in this case FIR has been lodged with considerable delay and explanation for delay is not reliable. 32.Law is settled on the point that mere delay in the FIR, "even if a satisfactory explanation is not coming forward" is not sufficient to discard entire prosecution story on this ground alone but definitely it casts a duty on the court to scrutinize the prosecution evidence with utmost care and caution. 33.In the facts of this case, the victim died within a period of seven years from her marriage. She died unnatural death and findings of the trial court on this point cannot be said to be wrong in any manner nor the same have been challenged in this appeal. 33.In the facts of this case, the victim died within a period of seven years from her marriage. She died unnatural death and findings of the trial court on this point cannot be said to be wrong in any manner nor the same have been challenged in this appeal. Now two points have to be concerned; first is whether soon before her death she was subjected to cruelty in connection with the demand of dowry; and second point is, as argued by the learned A.G.A. that in view of the Section 106 of the Indian Evidence Act the burden to prove the circumstances under which she died was on the husband of the deceased. Therefore, these points are being considered separately as under:- "Hon'ble Apex Court in the case of Kunhiabdulla and another v. State of Kerala 2004 S.C.Cr. R. 1283 has defined the word soon before and has held- Suffice, however, to indicate that the expression 'soon before' would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence." 34. It is true that P.W. 1 and P.W. 2 both in their examination-in-chief have stated that both the accused persons used to treat the deceased with cruelty in connection with the demand of cycle and transistor and the accused persons had talked with her father in this regard. 35. P.W.1 Ram Kishan on this point has stated in his evidence that he came to know the factum of cruelty three years before the date of occurrence. It is an admitted fact that after marriage the deceased used to visit her parental house and just one day before the death of the deceased the appellant along with the deceased had gone to the house of this witness in connection with the death of Bhabhi (brother's wife) of the deceased. There is not even an iota of evidence during this visit that the deceased had made any complaint regarding the demand of dowry or ill treatment by the accused persons. There is not even an iota of evidence during this visit that the deceased had made any complaint regarding the demand of dowry or ill treatment by the accused persons. It has come in the evidence that the demand of dowry of cycle and transistor started from the marriage itself and the accused persons were assured that the said demand shall be considered at an appropriate time. On this point P.W. 2 who happens to be the father of the deceased has stated that this demand started after marriage. He has also stated that at the time of inquest he has not given any statement to the Investigating Officer nor he has made any complaint to him. He has stated that this demand started after 4-6 months of the marriage. Therefore, there is contradiction in the evidence of the two witnesses regarding the time on which the demand of cycle and transistor started. As per the evidence of P.W. 1 it started during the marriage ceremony while according to other witness it started after about six months of the marriage. There is nothing on record to indicate that the accused persons created any hindrance regarding the visit of the deceased or they threatened the complainant's side with dire consequences if the demand is not fulfilled. Visit of the husband just one day prior to the incident and even prior to that shows that relation between two families were cordial. It also falsifies the allegations of demand of dowry and the resultant cruelty. 36. A perusal of the evidence of P.W. 1 shows that he has stated in his evidence that the demand of cycle and transistor was made for the first time during marriage. P.W. 2, who is father of the deceased has clearly stated that the demand of cycle and transistor was made by the appellants Babu and Nanhey after marriage. In cross examination he has stated that such demand was made after about six months of the marriage. Therefore, contradiction on this point whether the demand was made at the time of marriage or subsequent thereto assumes great importance, keeping in view the inordinate delay in the FIR. 37. Learned A.G.A. has placed reliance on the fact that certain injuries have been mentioned in the inquest report, which supports the fact of cruelty. Therefore, contradiction on this point whether the demand was made at the time of marriage or subsequent thereto assumes great importance, keeping in view the inordinate delay in the FIR. 37. Learned A.G.A. has placed reliance on the fact that certain injuries have been mentioned in the inquest report, which supports the fact of cruelty. The inquest report is not substantive piece of evidence Inquest proceedings are not conducted by any medical expert, therefore, much reliance on the injuries mentioned in the inquest report ought not to be given. Purpose of inquest proceedings is very limited. However, in the postmortem report no other injury on the person of the deceased has been mentioned. It falsifies the injuries mentioned in the inquest. Apart from it no suggestion has been given to the doctor that he had not deliberately mentioned other injuries in the postmortem nor his attention was drawn towards the injuries mentioned in the inquest for expert opinion. Apart from it in the postmortem report doctor noted the general condition of the body as under:- "A lady of average body built, Eyes, mouth half open. Rigor mortis passed away from the upper body. Abdomen distended. P.M. staining present in the different parts of the body. Skin peeling off at places. Nails cynosed. Tongue caught in between the teeth. Dried saliva sticken on the right angle of mouth." 38. The perusal of the injuries as noted in the inquest report shows that the post mortem symptoms which appear on the body of the deceased due to lapse of time were noted as injures in the inquest report. Therefore, the trial court committed error in raising an adverse inference on the basis of injuries so noted in the inquest report. 39. Therefore, the point of any other injury on the body of the deceased could not have been made a ground to raise any adverse inference against the accused. There is no reliable or convincing evidence that at any point of time she was treated with cruelty and she made any complaint to any body regarding cruel treatment by the appellants. Evidence on this point is vague and is not capable of inspiring confidence. 40. The evidence of the two witnesses as discussed above, is vague and contradictory on this point. Evidence on this point is vague and is not capable of inspiring confidence. 40. The evidence of the two witnesses as discussed above, is vague and contradictory on this point. Therefore, it cannot be said that there was a demand of dowry and in connection with the demand of dowry she was treated with cruelty. Therefore, this essential ingredient to constitute an offence under Section 304B IPC was missing but the trial court has not considered this aspect in correct perspective. 41. The second point is regarding the provision of Section 106 of the Indian Evidence Act, which reads as under:- "106. Burden of proving fact especially within knowledge.- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him." 42. The applicability of the above provision has been explained by Hon'ble Apex Court in the case of State of Rajasthan v. Kashi Ram, [JT 2006 (12) SCC 254 ), which held as under:- "23. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory if he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act in a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd. Re. AIR 1960 Mad 218 ." 43. The aforementioned view in the case of Kashi Ram (supra) was again followed by Hon'ble Apex Court in a recent case of Sathya Narayanan v. State Rep. by Inspector of Police [JT 2012(11) SC 57]. 44. It is true that the deceased died in the house of the appellants but it has come in evidence that information of this incident was sent by the accused persons through their cousin and the appellants made no effort to run away from the place of occurrence. They remained present on the place of occurrence waiting for the family members of the deceased to come. Information was also given to police by them and they had also disclosed the cause of death that she committed suicide due to her stomach disorder. P.W.1 has admitted these facts in his evidence. Apart from it the father of the deceased was made a Panch in the inquest proceedings, in which there was opinion of the Panch that she has committed suicide because of her stomach ailment and after the postmortem the dead body was handed over to the appellants, this all shows that by that time there was no misunderstanding and no complaint against the appellants and not even any suspicion was raised against the appellants but it was only after gap of several days that complainant side that too after consulting the Advocate Ramkrishna Gupta the proceedings were initiated and false allegation of demand of dowry was made. 45. The submission of learned counsel for the appellants is that on the advice of the Advocate Gupta the FIR was lodged with the intention to extract financial gain from the appellants. Therefore, in the facts of this case, the accused persons have discharged the burden as was on them under Section 106 of the Evidence Act. The burden on the accused persons is not as serious as that on the prosecution. Therefore, in the facts of this case, the accused persons have discharged the burden as was on them under Section 106 of the Evidence Act. The burden on the accused persons is not as serious as that on the prosecution. Above discussion shows that the appellants had come with clean hand, they gave information to all concerned and made no effort to flee away. They kept on waiting for the complainant side. No effort was made to dispose of the dead body. Reason of death was also disclosed and the same was believed by the complainant side and also by panchs and police, due to which no complaint was made at that time or even after lapse of many days. Even after postmortem dead body was handed over to the appellants. 46. In view of the discussion made above, in the considered opinion of this Court, the learned trial court has not appreciated the evidence in correct perspective. Since the FIR was very much delayed and explanation furnished was not the least satisfactory, therefore, the trial court was duty bound to appreciate the prosecution evidence with great care and caution but such approach has not been adopted by the trial court which rendered the judgment unsustainable under law. 47. In view of the aforesaid discussion, these appeals deserve to be allowed and are hereby allowed. Appellants are hereby acquitted of the charges levelled against them. They be set at liberty. They are on bail. Their bail bonds are cancelled and sureties discharged. Registry is hereby directed to send back the lower court's record forthwith. ______________