JUDGMENT 1. - In this case, Section 113B of the Indian Evidence Act 1872 is much relevant before discussing the facts of the case. It will be better if we reproduce this section here. "113B. 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 had 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)." 2. Then comes Sections 498A and 304B of Indian Penal Code which may also be reproduced here for ready reference:- "498A. Husband or relative of husband of a woman subjecting her to cruelty. Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation For the purpose of this section, "cruelty" means (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health(whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand." "304B. 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 purpose of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life." 3. Thenafter Section 114 of the Indian Evidence Act, 1872 may also be quoted here along with illustration given under this Section:- "114. Court may presume existence of certain facts.- The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustration The Court may presume-- (a) ... ... (b) ... ... (c) ... ... (d) ... ... (e) ... ... (f) ... ... (g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it; (h) that if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him; (i) ... ...." 4. In the case in hand, the accused-appellant was charged under Section 498A and Section 302 of Indian Penal Code for causing cruelty on his wife and thereafter committing murder of his wife. It is not disputed that in such type of cases, if a case under Section 302 of Indian Penal Code is not made out then the conviction can be made if the evidence permits, under Section 304B of Indian Penal Code, though no charge of Section 304B of Indian Penal Code was framed against the accused at the beginning of the trial. 5. Hon'ble the Supreme Court in Rajveer @ Raju and anr. v. State of Haryana, 2011 AIR SC 568 has mandated as follows:- "We further direct all the trial courts in India to ordinarily add Section 302 to the charge of Section 304B, so that death sentences can be imposed in such heinous and barbaric crimes against women. Copy of this order be sent to Registrar Generals/Registrars of all High Courts, which will circulate it to all trial courts." 6. Copy of this order be sent to Registrar Generals/Registrars of all High Courts, which will circulate it to all trial courts." 6. In Sessions Case No. 94/2004, the Additional Sessions Judge (Fast Track) No.1, Banswara by his judgment dated 8.2.2005 has acquitted the accused-appellant Gattu @Gatia from the charge of Section 498A of Indian Penal Code but he has convicted the said accused-appellant under section 302 of Indian Penal Code by life imprisonment along with a fine of rupees two thousand five hundred and in default of payment of fine, he has been ordered to suffer an additional sentence of one month's rigorous imprisonment. 7. It has been argued on behalf of the accused-appellant that charge of Section 302 of Indian Penal Code is not proved against the accused-appellant and in the alternative, it has also been prayed that the accused is in custody in this case continuously since 12.10.2004, so even if a case under Section 304B of Indian Penal Code is proved against him, then too, he should be released on undergone sentence. 8. In the aforesaid background, we have perused the record of the case. Smt. Surta w/o Gatuu @Gatia was found dead in her husband's house in suspicious circumstances within seven years of her marriage with Gattu @Gatia . In FIR (Ex.P.1), Gautam, the father of the deceased has also narrated that her daughter was being ill-treated by her husband because of the reason that he could not arrange rupees five thousand for her son-in-law, who wanted to go to Kuwait with the help of this money. 9. PW-8 Dr. Narendra Kohali has stated that he had conducted the post-mortem of the lady on 9.10.2004 and there was abrasion on the left side of the neck of lady and there was a contusion of 3 cm. x 2 cm. in the left side of her stomach. Both the injuries were anti-mortem. Her spleen was found enlarged and ruptured. There was fracture in her vertebra in C-4 and C-5. He further states that cause of death was asphyxia and loss of blood causing hemorrhagic shock. In his cross-examination, he states that injury no.2 on the stomach of Mst. Surta was caused by blunt weapon and that injury could have caused the death of the lady. Thus the statement of doctor proves the homicide in the case. He further states that cause of death was asphyxia and loss of blood causing hemorrhagic shock. In his cross-examination, he states that injury no.2 on the stomach of Mst. Surta was caused by blunt weapon and that injury could have caused the death of the lady. Thus the statement of doctor proves the homicide in the case. It is admitted fact that the lady died in her husband's house within seven years of her marriage. Now it is for the husband to explain the circumstances in which her wife met with death. For this purpose, an opportunity was there with the accused-appellant while answering the questions under Sections 313 of Code of Criminal Procedure but he has not fully availed the opportunity and he has simpliciter narrated that her wife had expired because of fever and vomiting only. It is pertinent to mention here that no question had been asked to Dr. Narendra Kohali about the death of the lady by fever or vomiting and thus, the defence taken by the accused-appellant is not plausible. 10. PW-4 Mst. Dhuli states that she is mother of Mst. Surta and she states that Mst. Surta was not having any disease. PW-1 Gautam is father of Mst. Surta and he has also denied the suggestion of defence that Mst. Surta was suffering from T.B. or any other disease at the time of her death. The charges of cruelty as defined in Section 498A of Indian Penal Code are also proved by the statements of the witnesses in this case. PW-1 Gautam states that from a poor person like him, his son-in-law accused-appellant Gattu was asking for rupees five thousand for going to Kuwait. PW-3 Shanker is uncle of Mst. Surta. He also states that whenever Mst. Surta used to come from her in-laws' house, then she used to tell that her husband ill-treats her and often beats her. 11. PW-7 Tejpal is brother of grand-father of deceased and he also states that the accused-appellant used to quarrel with Smt. Surta and he used to ask her to put her hands in boiling hot water and he used to have doubts on her character also. He states that Smt. Surta used to tell details of the cruel treatment given by her husband. He states that Smt. Surta used to tell details of the cruel treatment given by her husband. Thus, the charge of cruel treatment with deceased by her husband is well proved by the circumstances and the statements of the witnesses. Cruelty for the purpose of Section 498A of Indian Penal Code includes the harassment of the woman with a view to force her or any person relating to her to meet unlawful demand for any property etc. In the circumstances of the case, presumption of Section 113B of the Indian Evidence Act, 1872 will be applicable against the accused-appellant because soon before the death of Mst. Surta, she was found to have been subjected to cruelty and harassment in connection with unlawful demand of rupees five thousand, presumably dowry and so the husband in such case will be presumed to be guilty of dowry death. 12. If we further analyze the evidence in the case, then it can be said that PW-1 Gautam, father of deceased Mst. Surta has fully supported the FIR and he appears to be an innocent and truthful victim in the incident. PW-3 Shanker has also supported the fact of cruelty towards Mst. Surta by her husband. PW-4 Mst. Dhuli, mother of Mst. Surta has also supported the story of death of her daughter in connection with demand of rupees five thousand by her husband. 13. PW-5 Kamji is uncle of deceased Smt. Surta and he also states that at least three times before the death of Mst. Surta, there had been meeting of their community for compromise between Mst. Surta and Gattu. He also states that there was injury in the neck of Mst. Surta and as per him, she was killed by her husband. 14. PW-6 Babla states that he had told Gatia@Gattu not to ask for dowry from Gautam because Gautam was a poor person who was not able to pay rupees five thousand to his son-in-law for the happiness of his daughter. He further states that Mst. Surta did not die because of any disease. PW-7 Tejpal has supported the story of cruelty and harassment of Mst. Surta meted out to her by her husband. 15. PW-9 Chiranji Lal Meena is the Investigating Officer in the case and nothing important has come in his cross-examination in favour of the accused-appellant. PW-10 Moti Lal is a formal witness of Panchnama of dead body. PW-7 Tejpal has supported the story of cruelty and harassment of Mst. Surta meted out to her by her husband. 15. PW-9 Chiranji Lal Meena is the Investigating Officer in the case and nothing important has come in his cross-examination in favour of the accused-appellant. PW-10 Moti Lal is a formal witness of Panchnama of dead body. He states that Mst. Surta was suffering from fever at the time of her death and he further states that there was no injury on the neck of Mst. Surta. Apparently this witness is a false witness. 16. PW-11 Bheru Lal, the then S.D.M., Ghatol had conducted the inquest proceedings in relation to un-natural death of Mst. Surta and he states that on the basis of post-mortem report and statement of the father of the deceased, he was of the view that a case under Section 302 of Indian Penal Code should have been registered and investigated by the police. 17. PW-12 Devi Lal is apparently a false witness and much importance cannot be given to his statement. PW-13 Gopal Lal, the then S.H.O. of Police Station Khamera, is a witness of FIR Ex.P.2. The accused-appellant has given no explanation against the incriminating evidence which has come in the statements of the witnesses. 18. DW-1 Vagji, DW-2 Shanker ,DW-3 Maliya and DW-4 Mahipal are the witnesses who have been examined by the accusedappellant in his defence to prove that his wife Mst. Surta had died because of fever and they also state that Mst. Surta was never ill-treated by her husband but in the circumstances of the case, all these four witnesses appear to be interested and false witnesses and much importance cannot be given on their statements. 19. In the result, it can be said that since there is no appeal by the State against the acquittal of accused-appellant under Sections 498A of Indian Penal Code, so on the basis of the evidence, it will be better if we acquit the accused from the charge of Section 302 of Indian Penal Code and instead convict him for the charge of Section 304B of Indian Penal Code for causing dowry death of his wife. 20. 20. Accordingly, the appeal of the accused-appellant is partly accepted and his conviction under Section 302 of Indian Penal Code is converted into conviction under Section 304B of Indian Penal Code because he appears to be guilty of dowry death of his wife. His wife had expired because of external injuries in suspicious circumstances in his house within seven years of her marriage with him and it is also proved that soon before her death, she was subjected to cruelty or harassment by her husband. The accused-appellant is hereby convicted accordingly under section 304B of Indian Penal Code. So far as sentence is concerned, the accused-appellant is in jail since 12.10.2004 continuously and so the period undergone by him is sufficient punishment for him in the circumstances of the case and hence, if not wanted in any other case, he should be released forthwith. A copy of this judgment should be sent to the accused-appellant through the concerned Jail Superintendent. One copy be sent to the concerned Jail Superintendent also. Record of the lower court along with a copy of this judgment should be sent back within three days.Appeal partly allowed. *******