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2014 DIGILAW 382 (CHH)

Ramchandra Goyal v. State of M. P.

2014-11-11

SANJAY K.AGRAWAL

body2014
JUDGMENT Sanjay K. Agrawal, J. 1. This appeal by five appellants/accused namely Ramchandra Goyal (A1), Ajay Kumar (A2), Dinesh Kumar (A3), Mukesh Kumar (A4) and Smt. Vimla Devi (A5) is directed against the judgment of conviction recorded by the First Additional Sessions Judge, Ambikapur, in S.T. No. 99/96 whereby the Sessions Judge has convicted the appellants for commission of offence punishable under Sections 304-B and 306 of Indian Penal Code (for short, IPC) and sentenced each of the appellants to undergo R.I. for 10 years U/s. 304-B and R. 1. for 7 years U/s. 306 IPC and further directed that both the sentences shall run concurrently. Facts of the case, giving rise to this appeal are as under:-- 1.1. That, Sulochana (deceased) was married with appellant No. 2/Ajay Kumar on 20.02.1994. Shortly after the marriage, Sulochana complained to her parents namely Phpolchand (PW-1-father), Parwati (PW-6-mother), Rajkumar (PW-4-brother) and Madan Lal (PW-5) that the appellants were demanding dowry and subjecting her to cruelty in connection with said demand. The complaint was made on few occasions whenever Sulochana visited her parental home and ultimately committed suicide by hanging herself approximately at 8 a.m. on 12.10.1995 inside her matrimonial house (house of appellants). 1.2. Information regarding suicide committed by Sulochana was immediately given by one Baburam to her parents. Merg intimation (Ex. P/13) was lodged and investigation was taken up by P.N. UPadhyay (PW-7) Station House Officer, P.S. Ambikapur, and later on by I.L. Uikey (PW-9) SDOP. Postmortem was conducted by Dr. N.K. Jain (PW-3) and postmortem report is Ex. P/7. 1.3. It is further case of the prosecution that on evening of 12.10.1995 Phoolchand (PW-1) submitted a written report (Ex. P/2) on the basis of which F.I.R. (Ex. P/3) came to be recorded on 13.10.1995 at 12 noon, and thereafter, the appellants were charge-sheeted for commission of offences punishable under Sections 304-B and 306 IPC. 1.4. In order to bring home the offences, the prosecution examined the following witnesses-- • (PW-1) Phoolchand Goyal, father of deceased Sulochana. • (PW-2) S.P. Shukla, Police witness. • (PW-3) Dr. M.K. Jain, Doctor, who conducted postmortem. • (PW-4) Rajkumar, brother of deceased Sulochana. • (PW-5) Madanlal, brother of deceased Sulochana. • (PW-6) Parwati, mother of deceased Sulochana. • (PW-7) N.P. Upadhyay, SHO, Police Station Ambikapur. • (PW-8) Lori Bai, neighbour of deceased. • (PW-2) S.P. Shukla, Police witness. • (PW-3) Dr. M.K. Jain, Doctor, who conducted postmortem. • (PW-4) Rajkumar, brother of deceased Sulochana. • (PW-5) Madanlal, brother of deceased Sulochana. • (PW-6) Parwati, mother of deceased Sulochana. • (PW-7) N.P. Upadhyay, SHO, Police Station Ambikapur. • (PW-8) Lori Bai, neighbour of deceased. • (PW-9) I.L. Uikey, A.S.P. Posted as SDOP at Ambikapur on the date of alleged incident. • (PW-10) Kavilas neighbour and milk vendor of appellants, and • (PW-11) Krishnadhar, neighbour of appellants. 1.5. In order to bring home the offences, the prosecution brought eleven documents (Exhibit P/1 to Exhibit P/11) including Exhibit P/2 i.e. written report of Phoolchand (PW-1), Exhibit P/3 F.I.R. and Exhibit P/7 postmortem report. 1.6. The defence of appellants are that they neither made any demand of dowry nor they treated deceased Sulochana cruelty. It is specific case of the defence that Sulochana was suffering from severe abdominal pain, and for which she was treated at Ambikapur, Bilaspur and Mumbai and immediately after giving birth to a male child, due to acute abdominal pain she committed suicide and a false case has been set up against them as they refused to handover male child born to the deceased in December, 1994, as well as their refusal to return gifts that her parents and relative gave to the deceased at the time of marriage which is apparent from the fact that date of alleged incident is 12.10.1995, whereas F.I.R. was made on 13.10.1995 at 12 noon after consultation and deliberation. 1.7. In a statement recorded under Section 313 Cr.P.C. the appellants made statements that they never harassed the deceased Sulochana by demanding dowry at any point of time and the deceased was suffering from acute abdominal pain for which she was treated at Ambikapur, Bilaspur and Mumbai and after giving birth of male child she committed suicide by hanging herself as her abdominal pain became unbearable. 1.8. The trial court placing implicit reliance upon the statements made by Phoolchand (PW-1), Rajkumar (PW-4), Madanlal (PW-5) and Parwati (PW-6) discarded the plea of defence put forth by the accused/appellants and proceeded to convict and sentenced the appellants on the above mentioned charges. 2. Appearing for the appellants Shri Surendra Singh would submit that there is no demand of dowry by the appellants herein and learned Sessions Judge did not appreciate the evidence in its correct perspective. 2. Appearing for the appellants Shri Surendra Singh would submit that there is no demand of dowry by the appellants herein and learned Sessions Judge did not appreciate the evidence in its correct perspective. There had been material contradiction in deposition of the prosecution witness and there is no proof that soon after her death deceased Sulochana was subjected to any demand of dowry or cruelty, therefore, presumption under Section 113(b) of the Evidence Act cannot be raised against the appellants. He would lastly submit that the deceased was suffering from acute abdominal pain which is duly established upon the evidence of prosecution witness namely Lori Bai (PW 8), Kavilas (PW-10) and Krishnadhar (PW-11) and this fact has been brought on record by the Public Prosecutor in his examination-in-chief and they have not been subjected to re-examination as required under the law, and therefore, their evidence is binding upon the prosecution and accused persons are entitled to clear and clean acquittal from the charges levelled against them. 3. Appearing for the State Shri P.K. Bhaduri would submit that the prosecution has brought legal and clinching evidence on record to bring home the offence under Section 304-B and 306 IPC, but no medical history was placed before the trial court by the defence as the deceased Sulochana was alleged to be treated at district level as well as at Bilaspur and Mumbai and merely on the basis of statements of Lori Bai (PW 8), Kavilas (PW-10) and Krishnadhar (PW-11) it cannot be said that defence side has, succeeded in infusing successfully firm doubt in the prosecution story. He would also submit that prosecution has brought the evidence of Dr. N.K. Jain (PW-3) (who conducted the postmortem), who has clearly said that all internal areas of stomach were normal and they were in good condition and in the light of Section 113(b) and (c) of the Evidence Act the burden will lie upon the defence to rebut the presumption available to them by leading cogent and reliable evidence. 4. I have heard the counsel appearing for the parties, considered rival submissions made therein and also perused the records carefully. 5. 4. I have heard the counsel appearing for the parties, considered rival submissions made therein and also perused the records carefully. 5. Before considering the prosecution case as well as the defence pleaded, it is desirable to extract the relevant provisions of Section 304-B which relates to dowry death: "304-B. Dowry death.--(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 purposes 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 may extend to imprisonment for life." The above provision was inserted by Act 43 of 1986 and came into force w.e.f. 19.11.1986. 6. In order to convict an accused for the offence punishable under Section 304-B IPC, the following essentials must be satisfied-- • The death of a women should be caused by bum or bodily injury or otherwise than under normal circumstances. • Such death should have occurred within seven years of the marriage. • Soon before the death of deceased, she must have been subjected to cruelty or harassment by her Husband or any relative of her Husband. • Such cruelty or harassment should be for or in connection with demand for dowry. Thus, if the aforesaid ingredients are established by the prosecution by leading appropriate reliable evidence, such death shall be called dowry death and the court shall presume and it shall record such fact as proved unless and until it is disproved by the accused. 7. • Such cruelty or harassment should be for or in connection with demand for dowry. Thus, if the aforesaid ingredients are established by the prosecution by leading appropriate reliable evidence, such death shall be called dowry death and the court shall presume and it shall record such fact as proved unless and until it is disproved by the accused. 7. Section 113B of the Indian Evidence Act, 1872 speaks about presumption as to dowry death which reads as under:-- "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 section 304B of the Indian Penal Code (45 of 1860)." The aforesaid provision shows that if the women has been subjected to cruelty as defined in Section 498-A IPC, the court may presume that such person has caused dowry death. Section 2 of the Dowry Prohibition Act, 1961 provides 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 parents of either party to a marriage or by a other person, to either party to the marriage or to any other person; at or before or after the marriage us consideration for 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." 8. To attract the provisions of Section 304B, one of the main ingredients of the offence which is required to be established is that "soon before her death" she was subjected to cruelty or harassment "for, or in connection with the demand for dowry". The expression "soon before her death" used in Section 304B IPC and Section 113B of the Evidence Act is present with the idea of proximity test. 9. The expression "soon before her death" used in Section 304B IPC and Section 113B of the Evidence Act is present with the idea of proximity test. 9. As regards the principles concerning the above-referred provisions this Court wishes to refer to the decisions reported in K. Prema S. Rao Vs. Yadla Srinivasa Rao (2003) 1 SCC 217 , Kaliyaperumal Vs. State of T.N. (2004) 9 SCC 157 , Devi Lal Vs. State of Rajasthan (2007) 14 SCC 176 and Ashok Kumar Vs. State of Haryana (2010) 12 SCC 350 . 10. In K. Prema S. Rao (supra) it has been held as under: "16. ... To attract the provisions of Section 304-B IPC, one of the main ingredients of the offence which is required to be established is that 'soon before her death' she was subjected to cruelty and harassment 'in connection with the demand for dowry'." 11. In Kaliyaperumal (supra) relevant portion reads as under: "5. A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The 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 Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. The 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 in by the prosecution. 'Soon before' is a relative term and it would depend upon the circumstances of each case and no straight 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 Section 113-B of the Evidence Act. The expression 'soon before her death' used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. The expression 'soon before her death' used in the substantive Section 304-B IPC and Section 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. A reference to the expression 'soon before' used in Section 114 Illustration (a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods soon after the theft, is either the thief who has received the goods knowing them to be stolen, unless he can account for his possession. 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 cruelty or harassment concerned 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 death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the women concerned, it would be of no consequence." 12. In Devi Lal (supra) the ingredients of the provisions of Section 304-B as laid down in Harjit Singh Vs. State of Punjab (2006) 1 SCC 463 and Ram Badan Sharma Vs. State of Bihar (2006) 10 SCC 115 have been reiterated as under: "20. The question, as to what are the ingredients of the provisions of Section 304-B of the Penal Code is no longer res integra. They are: (1) that the death of woman was caused by any burns or bodily injury or in some circumstances which were not normal; (2) such death occurs within 7 years from the date of her marriage; (3) that the victim was subjected to cruelty or harassment by her husband or any relative of her husband; (4) such cruelty or harassment should be for or in connection with the demand of dowry; and (5) it is established that such cruelty and harassment was made soon before death." 13. In Ashok Kumar Vs. State of Haryana (2010) 12 SCC 350 (supra) it has been held by the Apex Court as under: "19. In Ashok Kumar Vs. State of Haryana (2010) 12 SCC 350 (supra) it has been held by the Apex Court as under: "19. We have already referred to the provisions of Section 304B of the Code and the most significant expression used in the section is 'soon before her death'. In our view, the expression 'soon before her death' cannot be given a restricted or a narrower meaning. They must be understood in their plain language and with reference to their meaning in common parlance. These are the provisions relating to human behavior and, therefore, cannot be given such a narrower meaning, which would defeat the very purpose of the provisions of the Act. Of course, these are penal provisions and must receive strict construction. But, even the rule of strict construction requires that the provisions have to be read in conjunction with other relevant provisions and scheme of the Act. Further the interpretation given should be one which would avoid absurd results on the one hand and would further the object and cause of the law so enacted on the other." 14. Similar view was expressed by the Apex Court in Yashoda Vs. State of M.P. (2004) 3 SCC 98 , where it is 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, whereafter, 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. 15. In the matter of Appasaheb and another Vs. 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. 15. In the matter of Appasaheb and another Vs. State of Maharashtra (2007) 9 SCC 721 it has been held by the Apex Court as under: "9. Two essential ingredients of Section 304-B IPC, apart from others, are (I) death of woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances, and (ii) woman is subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for "dowry". The explanation appended to sub-section (1) of Section 304-B IPC says that "dowry" shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961. 10. Section 2 of the Dowry Prohibition Act reads 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 parents 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. 11. 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 and 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. 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 and Chemical and Fibres of India Ltd. v. Union of India). A demand for money on account of some financial stringency or for making some urgent domestic expenses or 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-BIPC viz demand for dowry is not established, the conviction of the appellants cannot be sustained." 16. The word "soon before her death", no definite period has been prescribed and the expression "soon before her death" has not been defined either in IPC or Evidence Act. 17. The Supreme Court in case of Mustafa Shahadal Shaikh Vs. State of Maharashtra 2012 (11) SCC 397 while considering the word "soon before her death", it has been held that term of the period which can come within the term "soon before her death" is to be determined by the courts, depending upon the facts and circumstances of each case and it would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question and there must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the concerned death. It has been further held that if the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence. 18. Keeping these principles in mind, let us consider the evidence led in by the prosecution in the present case. It has been further held that if the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence. 18. Keeping these principles in mind, let us consider the evidence led in by the prosecution in the present case. 19. In written report (Ex. P/2) that was submitted by Phoolchand (PW-1) which was typed by Rajkumar (PW-4), it is specifically mentioned that deceased was not permitted to go to her parents home 6 to 7 months prior to her demise and none of prosecution witnesses who are near relative of deceased sulochana were allowed to met the deceased. They have also clearly admitted that they have not met deceased after Holi festival in 1994 and there is no proof that soon before her death deceased was subjected to cruelty. 20. Father of deceased i.e. Phoolchand (PW-1) has submitted written report dated 12.10.1995 (Ex. P/2) addressed to Station House Officer and also endorsed to SDO (P), Ambikapur, to inquire the matter and take legal action. According to P.N. Upadhyay (PW-7) who was then posted as Station House Officer, he received the said report (Ex. P/2) on 13.10.1995 by I.L. Uikey (PW-9) SDO (P) posted at that time pursuant to which F.I.R. was registered vide Ex. P/3 on 13.10.1995 at 12 noon. He has also clearly said that no report was made to him on 12.10.1995 as he remained in duty on that round the clock, and thus, on 13.10.1995 F.I.R. was registered and thereafter further action was taken. 21. Now coming to question as to whether there is demand of dowry. Phoolchand (PW-1) has deposed that her daughter had complained against ill treatment given to her by her husband and his parents and also brothers as less dowry was given in the marriage and accused Ramchandra (A1) and Ajay Kumar (A2) used to demand Rs. 50,000/-, his brothers used to demand Moped & Colour Television, whereas her mother-in-law used to demand Gold Kangan and other gold related articles. Rajkumar (PW-4) also got his statement recorded that his sister was subjected to cruelty by demanding dowry by the appellants in shape of money, gold articles, colour television and Moped. 50,000/-, his brothers used to demand Moped & Colour Television, whereas her mother-in-law used to demand Gold Kangan and other gold related articles. Rajkumar (PW-4) also got his statement recorded that his sister was subjected to cruelty by demanding dowry by the appellants in shape of money, gold articles, colour television and Moped. Parwati (PW-6) has also deposed that deceased Sulochana had informed her that her mother-in-law used to demand costly Sari and gold articles, her Husband and father-in-law used to demand Rs. 50,000/- and brother-in-laws used to demand colour television and Moped. Phoolchand (PW-1), Rajkumar (PW-4) and Madanlal (PW-5) and Parwati (PW-6) were confronted with their statements made under Section 161 Cr.P.C. in respect of demand of Rs. 50,000/-, colour television, Moped and gold articles as no fact has been mentioned in their statements recorded under Section 161 Cr.P.C. 22. P.N. Upadhyay (PW-7) investigation officer has also stated that he has recorded the statements of Phoolchand (PW-1), Rajkumar (PW-4), Madanlal (PW-5) and Parwati (PW-6) as it is and they have not stated anything about the demand of dowry from the deceased Sulochana by the present appellants and as such no implicit relations can be placed on the statements of these witnesses regarding allegation that the demand of cash, gold articles, color television and Moped thereof as a dowry by the present appellants, and it appears that these statements with regard to dowry seems to be subsequent development based on consultation and deliberations, and therefore, evidences of Phoolchand (PW-1), Rajkumar (PW-4), Madanlal (PW-5) and Parwati (PW-6) cannot be absolutely relied upon without further cogent evidence on this allegations to base conviction of the appellants. 23. So far as statements of appellants under Section 313 Cr.P.C. is concerned, the appellant No. 1 and 2 have categorically replied and denied the allegations against them and in reply to question No. 43, appellant No. 1-Ramchandra has clearly stated that ideal marriage of his son was performed and he neither demanded any dowry prior to, or at the time, or after marriage and his son was living separately in the house and was doing his business separately as his daughter-in-law Sulochana was suffering from acute abdominal pain which she was treated at Ambikapur, Bilaspur and Mumbai and document to that effect has been filed. Likewise, Ajay Kumar (Husband) has also stated that no such dowry was demanded. Likewise, Ajay Kumar (Husband) has also stated that no such dowry was demanded. In fact, deceased Sulochana was suffering from acute stomach ache and after birth of a male child her stomach ache become worsened and on that count she was treated all the times at Ambikapur, Bilaspur and Mumbai. He has also stated that after cremation on 12.10.1995, Parwati Bai (PW-6) and Rajkumar (PW-4) came to his house demanding his minor son and return of gold articles which they refused to hand over, and therefore, they made a false report on 13.10.1995 at 12 noon. 24. From the aforesaid analysis, it is evident that evidences of Phoolchand (PW-1), Rajkumar (PW-4), Madanlal (PW-5) and Parwati (PW-6) suffers from improvement as held by the Supreme Court in case of Rohtash Vs. State of Haryana 2012 (6) SCC 589 by stating as under: "In view of above, we are of the considered opinion that in the instant case there had been major improvements/embellishments in the prosecution case and demand of Rs. 10,000/- by the appellant does not find mention in the statements under Section 161 Cr.P.C. More so, even if such demand was there, it may not necessarily be a demand of dowry. Further, the chemical analysis report falsifies the theory of suicide by deceased taking any pills. In such a fact-situation, the defence taken by the appellant in his statement under Section 313 Cr.P.C. could be plausible." 25. Not only this, the prosecution has examined neighbour of deceased Sulochana namely Lori Bai (PW-8), Kavilas (PW-10) and Krishnadhar (PW-11). These three independent witnesses did not state anything regarding demand of dowry by the appellants or they treated deceased with cruelty. Lori Bai (PW-8) is the neighbour of deceased and she was known to the deceased Sulochana, at the instant of prosecution, she had clearly deposed that deceased Sulochana was suffering from stomach ache for which she was treated at various hospitals. Kavilas (PW-10) milk vendor who also used to supply milk to the house of deceased, has clearly stated that she was suffering from stomach pain. Krishnadhar (PW-11) has also made the similar statement. These three independent witnesses have neither been declared hostile nor their evidence was challenged by way of re-examination as required under Section 138 of the Evidence Act, in absence of which, their statements become binding on prosecution. In a decision passed in Mukhtiar Ahmed Ansari Vs. Krishnadhar (PW-11) has also made the similar statement. These three independent witnesses have neither been declared hostile nor their evidence was challenged by way of re-examination as required under Section 138 of the Evidence Act, in absence of which, their statements become binding on prosecution. In a decision passed in Mukhtiar Ahmed Ansari Vs. State (Union Territory of Delhi) 2005 (5) SCC 258 their Lordships of Supreme Court held as under: "A similar question came up for consideration before this Court in Raja Ram v. State of Rajasthan, JT (2000) 7 SC 549. In that case, the evidence of the Doctor who was examined as a prosecution witness showed that the deceased was being told by one K that she should implicate the accused or else she might have to face prosecution. The Doctor was not declared "hostile". The High Court, however, convicted the accused. This Court held that it was open to the defence to rely on the evidence of the Doctor and it was binding on the prosecution." 26. Initially the burden of proof of the fact that deceased-was subjected to cruelty of demand of dowry is on the prosecution and when such burden is discharged by the prosecution, presumption under Section 113(b) of the Evidence Act shall be drawn regarding dowry death and if the prosecution fails to prove cruelty for demand of dowry beyond reasonable doubt under Section 113(b) of Evidence Act, presumption would not be attracted. 27. Thus, upon examination of the entire oral and documentary evidence on record, the following un-controverted facts flows:-- • That, the death of deceased Sulochana occurred within two years of her marriage and thus, condition laid down in Section 304B IPC normally within seven years of marriage has been fulfilled. • That, death of deceased was not normal as she committed suicide by hanging herself. • Barring these two ingredients of Section 304-B IPC, the other ingredients are absolutely lacking in the present case in hand. There is absolutely no evidence to show that at any point of time the appellants herein have made any demand of dowry and harassed or subjected her to cruelty soon before her death in connection with demand of dowry. 28. There is absolutely no evidence to show that at any point of time the appellants herein have made any demand of dowry and harassed or subjected her to cruelty soon before her death in connection with demand of dowry. 28. Thus, for the reasons set out in the above paragraphs, it cannot be concluded that prosecution has succeeded in bringing home the ingredients of offences punishable under Sections 304-B and 306 IPC and the learned Sessions Judge has committed serious illegality in convicting and sentencing the appellants for commission of offence under Sections 304-B and 306 IPC. As a fallout and consequence of above-stated analysis, the appeal filed by the appellants deserves to be and are hereby allowed. The impugned judgment convicting the appellants for commission of offence under Section 304-B and 306 of IPC is set aside. The appellants namely Ramchandra Goyal (A1), Ajay Kumar (A2), Dinesh Kumar (A3), Mukesh Kumar (A4) and Smt. Vimla Devi (A5) are hereby acquitted from the above-stated charges. It is reported that appellants are on bail, their bail bonds shall remain in operation for a period of six months from today in view of provisions contained in Section 437-A Cr.P.C.