JUDGMENT CHANDRA BHUSHAN BAJPAI, J. 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 05-1-1999 passed by the Additional Sessions Judge, Surajpur, the then District Surguja, M.P. (now C.G.) in Sessions Trial No. 310 of 1997 whereby and whereunder the learned Additional Sessions Judge after holding the appellants guilty for subjecting Anjulata, wife of appellant Surendra (A-1) and daughter-in-law of appellant Shantibai (A-2), to cruelty, convicted them under Section 498A of the Indian Penal Code (in short the IPC) and sentenced each of the appellants to undergo rigorous imprisonment for 3 years and to pay fine of Rs. 500/- in default of payment of fine, to further undergo rigorous imprisonment for 6 months. The learned trial Judge acquitted the appellants from the charges under Section 304B of the IPC and also acquitted co-accused Yadu-nandan, father of appellant Surendra (A-1), from the charges under Sections 304B and 498A of the IPC. Against such acquittal no criminal appeal is reported to be filed by the State. 2. Conviction is impugned on the ground that without there being any iota of evidence, court below has convicted and sentenced the appellants as aforesaid mentioned and thereby committed illegality. 3. As per case of the prosecution, on 01-5-1997, Ramprasad Jaiswal reached to Outpost Karji, Police Station Jaynagar, District Surguja and lodged the merg intimation regarding death of daughter-in-law of his brother Yadunandan and stated therein that on account of pain in the abdomen Anjulata was having problem, she was being treated at Ambikapur, but had not become well. On the same day, deceased Anjulata alias Anju, her father-in-law Yadunandan and his wife and other children were in their home; at about 9.30 morning, Anjulata hanged herself in a room near to her room with a rope connected with a wooden girder of the roof. The hanging rope was cut by her father-in-law Yadunandan with a hope that she may regain life but deceased Anjulata not regained life. On account of death of Anjulata, the merg was written at the outpost, same was numbered at Police Station Jaynagar as Ex.-P/6. Police reached to the spot and after giving inquest notice (Ex.-P/7) to the witnesses, inquest (Ex.-P/1) was prepared vide Ex.-P/1 and the dead body of deceased Anjulata was sent for post-mortem. On account of death of Anjulata, the merg was written at the outpost, same was numbered at Police Station Jaynagar as Ex.-P/6. Police reached to the spot and after giving inquest notice (Ex.-P/7) to the witnesses, inquest (Ex.-P/1) was prepared vide Ex.-P/1 and the dead body of deceased Anjulata was sent for post-mortem. Doctor Kamlesh Kumar Tamrakar (PW-7) conducted the autopsy and noticed following injuries/symptoms:- (i) Ligature mark present on neck above the thyroid cartilage passing obliquely upwards toward right upto right angle of mandible and towards it goes obliquely upwards toward left mastoid and upto right side of occipital region then interrupted from right side of occipital to right angle of mandible. Mark is hard brownish in colour, length 14½" breadth 1" on dissection subcutaneous tissue under mark is pale, soft tissue of neck above and below the ligature mark is congested. As per the opinion cause of death was due to hanging. It was also opined that death was occurred within 2 days since the post-mortem. He gave his report vide EX.-P/4. During the investigation, police seized remaining rope, breaking bangles and other articles vide Ex.-P/2; also seized from appellant Shantibai (A-2) one piece of bangle for comparison. The spot map was prepared vide EX.-P/8. Two cheques were seized from Harihar Prasad Jaiswal vide Ex.-P/12 issued on the name of appellant Surendra Jaiswal (A-1). On 15-5-1997, the First Information Report (FIR) was lodged against the both appellants and acquitted co-accused Yadu-nandan Jaiswal under Section 306/34 of the IPC by registering the FIR as Crime No. 85 by Inspector P.K.S. Goutam (PW-8) vide Ex.-P/9. The statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short the Code). 4. After completion of the investigation, charge-sheet was filed before the Judicial Magistrate First Class, Surajpur, against the appellants and acquitted co-accused Yadunandan under Section 306/34 of the IPC and also under Section 304B of the IPC on 12-8-1997, who, in turn, committed the case to the Court of Session, Surguja, from where the learned Additional Sessions Judge received the case on transfer and framed the charges against the appellants and the acquitted co-accused under Sections 498A and 304B of the IPC. All the accused denied the charges and prayed for the trial. 5. In order to prove the guilt of the appellants and the other co-accused, prosecution examined as many as 10 witnesses. All the accused denied the charges and prayed for the trial. 5. In order to prove the guilt of the appellants and the other co-accused, prosecution examined as many as 10 witnesses. The accused were examined under Section 313 of the Code wherein they denied the circumstances appearing against them and pleaded innocence and false implication in crime in question. 6. After providing opportunity of hearing to the parties, the learned Additional Sessions Judge acquitted co-accused Yadunandan from the charges levelled against him. The trial Judge also acquitted the appellants from the charges under Section 304B of the IPC and convicted the appellants under Section 498Aof the IPC and sentenced them as aforementioned. Acquitted co-accused examined himself as a defence witness and deposed that there was no demand of dowry, no cruelty to the deceased; deceased Anjulata was having some medical problem in her abdomen; she was also having leucoderma at her face; they all were keeping the deceased well but she committed suicide on account of pain in her abdomen and leucoderma over face. He also filed some documents, letters and prescription and other certificate and stated that they have not abetted the deceased for suicide. 7. I have heard learned counsel for the parties and perused the judgment impugned and record of the trial Court. 8. Learned counsel for the appellants vehemently argued that as per evidence of Harihar (PW-1) at para 6, he reported the matter to S.P. and police station; no report is lodged by this witness. As per letter Ex.-D/1 written by her in-law Suman that the deceased was happy. As per para 12, his granddaughter Khushabu i.e. daughter of deceased Anjulata was residing with her grand-mother, when the appellants were in jail even then he had not brought her grand-child Khushabu in his house, it goes to show that no harassment is committed by the appellants; no relation is finished after the death of the daughter, both the parties used to help each other. Shantibai (PW-3), neighbour, stated that there was white spot at cheek but it was denied by the father. Rajkumari (PW-4) also deposed regarding white spot at the face of the deceased. This witness is a neighbour and not said anything regarding the dispute and quarrel. The father of the deceased never said that there was harassment, he gave TV as per his daughters request. There was no demand of dowry. Rajkumari (PW-4) also deposed regarding white spot at the face of the deceased. This witness is a neighbour and not said anything regarding the dispute and quarrel. The father of the deceased never said that there was harassment, he gave TV as per his daughters request. There was no demand of dowry. The co-accused has been acquitted with the same set of evidence, hence, the appellants too may be given benefit and they too may be acquitted. Rampratap (PW-6), the brother of the deceased, deposed that the marriage was fixed for 21 thousands rupees and one Rajdoot motorcycle, whereas, Harihar (PW-1) stated that marriage was fixed for 50 thousands rupees. As per Rampratap (PW-6), Rs. 21000/- was given at the time of Tilak and for the motorcycle it was decided that when the father of the deceased will retire and get money then only Rajdoot motorcycle will be given. There was no mention for motorcycle in the statement of Harihar (PW-1, father of the deceased). As per Rampratap (PW-6), the appellants used to beat and give him trouble on account of money outstanding with the maternal side of the deceased. In para 2, this witness stated that appellant Surendra (A-1) was telling that he wants to marry her uncle- s daughter-in-law so that he may be employed in the colliery, he told the deceased for her consent, he also told that he will keep both women with him and when the deceased did not agree for consent for this point, appellant Surendra (A-1) had beaten the deceased. This facts were not present in his police statement Ex.-D/6. As per this witness, he had not informed in the police station because nobody wanted to give trouble to her sister. This witness admitted that after the death, they never bring the daughter of the deceased, Khushabu in his house, goes to show that they had not taken care for the daughter of the deceased. This witness also deposed that she was beaten by the appellants thrice. This witness is telling contradictory facts, hence, it has got no value. Sushila Bai (PW-5, mother of the deceased) admitted that after completion of the year, there was complaint for the money. This witness admitted that her daughter completed her B.A. degree after the marriage, also admitted that they were trying for her employment. This witness is telling contradictory facts, hence, it has got no value. Sushila Bai (PW-5, mother of the deceased) admitted that after completion of the year, there was complaint for the money. This witness admitted that her daughter completed her B.A. degree after the marriage, also admitted that they were trying for her employment. Hence, there was no torture, the TV was given to the daughter (deceased) only because she was not feeling well at village, hence, it was not a demand. Appellant Surendra (A-1) never demanded for the dowry. This witness not stated anything regarding the white spot. There is omission for the part that as per appellant Shantibais (A-2) submission, if money was not given they will burn their daughter-in-law. The statement of important witnesses were recorded very late. Offence under Section 498A of the IPC is not proved. There are contradictions in the statement of mother, son and father. As per the witnesses, the rest amount was demanded by father-in-law and he is acquitted. The mother (A-2) and the son (A-1) not demanded the dowry. There was no allegation for marpeet in their 161 statements. Shantibai (PW-3) and Rajkumari (PW-4) are neighbours and independent witnesses, they admitted the presence of white spot upon face of the deceased. Ramprasad (PW-10), uncle of appellant Surendra (A-l)) who lodged the merg intimation, deposed that there was white spot in the face of Anjulata and she was facing pain in the abdomen. Inspector P.K.S. Goutam (PW-8) deposed that the complainant party not reported the matter, the application came through the S.P. There was no element of cruelty in the police statements recorded. Head Constable Brijnath Singh (PW-9) recorded the police statement of Sushilabai (PW-5, mother of the deceased), he admitted the omission in her police statement (Ex.-D/5). Hence, guilt of the appellants under Section 498Aof the IPC is not proved and the appellants may be given benefit of doubt. No neighbours deposed anything regarding the cruelty. On account of different statement of father, brother and mother, it would not be safe to rely thereon. One more reason that the deceased was vegetarian and the appellants are non-vegetarian. No village meeting was convened regarding the cruelty. As per mothers statement, father of appellant Surendra (A-1) offered for the marriage with his son Surendra (A-1). There was no demand of dowry. One more reason that the deceased was vegetarian and the appellants are non-vegetarian. No village meeting was convened regarding the cruelty. As per mothers statement, father of appellant Surendra (A-1) offered for the marriage with his son Surendra (A-1). There was no demand of dowry. The witnesses deposed regarding the presence of white spot on the face, why will they tell lie? It is submitted that the prosecution failed to prove the ingredients of Section 498A of the IPC against the appellants, they may be acquitted. In alternate, it is submitted that appellant Shantibai (A-2) was in the age of 58 years at the time of incident; the incident is about 17 years old, thereby appellant Shantibai (A-2) is presently more than 75 years of age, she is old lady, she remained in jail and served the part of sentence from 15-5-1997 upto 13-11-1997 for about 6 months; also appellant Surendra (A-1) served the part of sentence, he was in jail from 15-5-1997 till 23-01-1999 until when this Court ordered suspension of sentence during pendency of the appeal and release of appellant on bail, i.e., appellant Surendra (A-1) served the sentence for 1 year 8 months 8 days; the incident is about 17 years old, the appellants were not having any criminal past, they suffered for about 17 years by contesting and facing the trial and the appeal; they may be sentenced under Section 498A of the IPC for the period already undergone by them, that may be sufficient and adequate for the offence committed by them, if the Court holds that the offence is proved against the appellants. Learned counsel for the appellants placed reliance on the following case law :- (i) Umakant & Another vs. State of Chattisgarh, 2014 (3) CGLJ 432 : AIR 2014 SC 2943 ) (SC) (ii) Venkatesan vs. Rani & Another, 2014 (2) CGLJ 142 (SC) : AIR 2013 SC 3320 (iii) Madan Sahu vs. State of Chattisgarh, 2013 (1) CGLJ 9 9. On the other hand, learned counsel for the State/respondent supported the judgment impugned and opposed the argument advanced on behalf of the appellants and submitted that the appellants committed cruelty for demanding remaining 25000/- rupees as dowry. Appellant Surendra (A-1) was allegedly having illicit relation with his cousin sister-in-law. They committed cruelty with the deceased. On the other hand, learned counsel for the State/respondent supported the judgment impugned and opposed the argument advanced on behalf of the appellants and submitted that the appellants committed cruelty for demanding remaining 25000/- rupees as dowry. Appellant Surendra (A-1) was allegedly having illicit relation with his cousin sister-in-law. They committed cruelty with the deceased. The element of cruelty is sufficiently proved, though it was not proved that immediately before the hanging there was torture or cruelty thereby abetment of suicide happened, but, element of cruelty and torture was sufficiently proved against the appellants; though there was no initial demand, but when the marriage was fixed for a certain amount, the demand for the remaining comes under the ambit of dowry; hence, the trial Court rightly convicted the appellants under Section 498A of the IPC and for which the appellants are adequately sentenced. Thus, there is no force in the appeal and the same may be dismissed. As per discussion of the evidence in para 9 of the judgment, it is proved beyond doubt regarding the factum of cruelty Also as per EX.-D/4, the document produced by the defence itself mentioned that white spot was cured and the colour was like the colour of the face and the deceased sent thanks letter for the doctor that white spot which appeared in the year 1994 cured till December 1994. The neighbours are not independent witnesses, they are influenced by the deceased, generally they not deposed truth as they have to remain in the company of the appellants forever. Ex.-D/4 itself falsifies the statement of Rajkumari (PW-4) and other witnesses. Normally relatives of a girl not reported the matter to police or at other forum because they do not want to spoil faith of the girl. The learned trail Court rightly convicted and sentenced the appellants. Hence, the appeal may be dismissed. 10. In order to appreciate the arguments advanced on behalf of both the parties, I have perused the evidence adduced on behalf of the parties. 11. Learned counsel for the appellants placed reliance on the matter of Umakant & Another vs. State of Chattisgarh (supra), wherein Hon'ble the Supreme Court held the dying declaration suspicious, thereafter, by allowing the criminal appeal, the appellants were acquitted from the charges under Section 302/34 of the IPC. 11. Learned counsel for the appellants placed reliance on the matter of Umakant & Another vs. State of Chattisgarh (supra), wherein Hon'ble the Supreme Court held the dying declaration suspicious, thereafter, by allowing the criminal appeal, the appellants were acquitted from the charges under Section 302/34 of the IPC. In this case law, Hon'ble the Supreme Court reinstated the principles for the manner and the facts as required to prove dying declaration. Facts of the present case since different from the facts of cited case law of Umakant & Another vs. State of Chattisgarh (supra), hence it is not supporting the appellants of the present case. On behalf of the appellants reliance is further placed on the case of Venkatesan vs. Rani & Another, (supra), wherein Hon'ble the Supreme Court restored the judgment of the lower Court for the reasons that ill-treatment and harassment was not proved, witnesses were not eye-witnesses, medical evidence not corroborated the other evidence, there was difference regarding place of incident, and on the basis of other variations and contradictions. In this cited case law Hon'ble the Supreme Court restored the judgment of acquittal of the appellant passed by the lower Court. Facts of the present case is different, so the cited case law is not helpful for the appellants for acquittal. Learned counsel for the appellant also placed reliance on the matter of Madan Sahu vs. State of Chattisgarh (supra), wherein Single Bench of this Court acquitted the appellant from the charges framed against him under Sections 498A and 306 of the IPC as there was no conclusive evidence for the cruelty or harassment to the deceased or abetment or instigation to deceased for committing suicide. In the present case, the prosecution sufficiently proved the essential ingredients of Section 498A of the IPC against the appellants, hence, the cited case law is not helpful for the appellants. 12. Upon minute examination of the evidence, it goes to show that though there are some small variations but they are not fatal for the prosecutions case. Witnesses are villagers from average economic condition and other status. The statements were recorded in the Court after a long time. Small variations and contradictions are bound to come. The statements of the father, mother and son indicate and prove in totality that there was cruelty subjected to the deceased regarding demand of balance amount. Witnesses are villagers from average economic condition and other status. The statements were recorded in the Court after a long time. Small variations and contradictions are bound to come. The statements of the father, mother and son indicate and prove in totality that there was cruelty subjected to the deceased regarding demand of balance amount. The fact of alleged marriage for the purpose of getting service and obtaining consent with pressure, which was not legal and admissible by any married girl, is also came in the evidence. The small variations and contradictions appeared are not so important that they destroy the whole case of the prosecution. Witnesses Harihar (PW-1, father of the deceased), Sushila Bai (PW-5, mother of the deceased) and Rampratap (PW-6, brother of the deceased) remained very firm for the factum of cruelty subjected to the deceased; even after very lengthy cross-examination, nothing could be elicited as to discredit these witnesses for the act of cruelty committed by the appellants. The appellants case are not identical with the case of acquitted co-accused Yadunandan. The cruelty, torture and harassment are evident for these appellants, it cannot be held that co-accused Yadunandan was acquitted for the same set of evidence, there is no case of parity with the acquitted co-accused Yadunandans case. Even after elimination of small variations, improvements and contradictions, what remains is sufficient to hold that appellants are guilty for subjecting cruelty to the deceased. I am of the considered view that the trial Court very rightly held the appellants guilty under Section 498A of the IPC. I find no scope for interference regarding the conviction of the appellants under Section 498A of the IPC. Hence, the conviction recorded by the trial Court against the appellants under 498A of the IPC is liable to and is hereby affirmed as the same is just and proper. 13. So far as the quantum of sentence is concerned, both the appellants have been awarded sentence of rigorous imprisonment for 3 years and to pay fine of Rs. 500/-. The fine sentence awarded to them needs no interference. 13. So far as the quantum of sentence is concerned, both the appellants have been awarded sentence of rigorous imprisonment for 3 years and to pay fine of Rs. 500/-. The fine sentence awarded to them needs no interference. So far as the substantive jail sentence awarded to them is concerned, the incident is about 17 years old; for last 17 years both the appellants travelled a lot for trial before the lower Court and in the hearing of this criminal appeal; after a long passage of time having considered that appellant Shantibai (A-2) is more than 75 years of age presently, she remained about 6 months in jail towards the part of the sentence and appellant Surendra (A-1) served the part of sentence for 1 year 8 months and 8 days, it would be just and proper to sentence the appellants for the period already undergone by them. 14. Consequently, the appeal filed by the appellants is partly allowed. The judgment of conviction under Section 498A of the IPC against both the appellants is hereby affirmed. The sentence of fine awarded to the appellants by the trial Court is also hereby maintained. However, the jail sentence awarded to the appellants is hereby modified and instead of rigorous imprisonment of 3 years, they are sentenced for the period already undergone by them. It is stated that the appellants are on bail. Their bail bonds shall continue for a further period of 6 months as per requirement of Section 437-A of the Code. Appeal partly allowed.