JUDGMENT : Per: Hon’ble Sudhanshu Dhulia, J. 1. This appeal is against the judgment and order dated 23.03.2013, passed in Sessions Trial No. 14 of 2009 (State Vs. Vinod Kumar), in which the present appellant has been convicted under Section 302 of I.P.C. as well as under Section 498A of I.P.C. and 3/4 of Dowry Prohibition Act, and he has been sentenced for the offence under Section 302 of I.P.C. for life imprisonment with a fine of Rs. 10,000/-, in case of default in payment of fine he is to undergo six months additional simple imprisonment, for the offence under Section 498A of I.P.C. he has been sentenced to undergo two years rigorous imprisonment with a fine of Rs. 5,000/-, in case of default in payment of fine he is to undergo three months additional simple imprisonment and he has been further sentenced two years of simple imprisonment with a fine of Rs. 10,000/-, in case of default of payment of fine he is to undergo six months additional simple imprisonment for the offence under Section 3/4 of Dowry Prohibition Act. All the sentences are to run concurrently. The appellant is in jail. 2. A First Information Report was lodged by the father of the deceased, namely, Bihari Lal S/o Bansi Lal on 28.10.2007 at 5.00 P.M. stating that his daughter Laxmi Devi was married to the accused Vinod Kumar about six years back on 16.04.2001. He further states that the accused is a habitual drunkard. He used to harass his daughter and there was a demand of dowry as well on his part, for which he repeatedly tortured the deceased. He further states that his daughter was staying with her husband in village Dhasi Patti. On 16.10.2007 his son-in–law i.e. accused informed him that his wife (the daughter of the complainant) is missing from the house since 14.10.2007. Efforts have been made to trace her but so far they have been in vain. After receiving that information, the complainant reached the village of his son-in-law and search was made again to trace his daughter in Village Dhasi, Pauri Garhwal. An F.I.R. dated 25.10.2007 was ultimately lodged by the complainant that his daughter is missing and he suspects that his son-in-law has killed his daughter for dowry. After receiving that information, the complainant reached the village of his son-in-law and search was made again to trace his daughter in Village Dhasi, Pauri Garhwal. An F.I.R. dated 25.10.2007 was ultimately lodged by the complainant that his daughter is missing and he suspects that his son-in-law has killed his daughter for dowry. We must though add that prior to this on 21.10.2007, the present appellant, had lodged a report before the concerned Patwari regarding missing of his wife, since the search so far had been futile. The case, however, was later registered against the appellant, interalia, under Section 304B of I.P.C. The body of the deceased was discovered on 26.10.2007 at 12.30 P.M. from a river. The Postmortem was conducted on the body of the deceased on 27.10.2007 at 12.30 P.M. Postmortem report says that there were two ante mortem injuries on the body of the deceased. The cause of death is stated as per Postmortem is due to shock and hemorrhage, as a result of Anti Mortem injuries. 3. Thereafter, the matter was committed to the Court of Session and the charges were framed under Sections 498A/304B of I.P.C. read with Section 3/4 of Dowry Prohibition Act and alternative charges were also framed under Section 302 of I.P.C. The charges were read over to the accused, who pleaded not guilty and claimed to be tried. Thereafter, the trial proceeded against the accused. 4. The prosecution examined as many as six witnesses. Out of these witnesses, PW1 and PW2 are father and mother of the deceased, respectively. PW3 is Dr. S.P.S. Negi, who at the relevant time was posted as Medical Officer at Government Combined Hospital, Kotdwar who conducted the autopsy of the deceased on 27.10.2007. According to him, the age of the deceased was about 26 years. She was of average built. Her body was swollen and was getting rotten. Face was also swollen. Colour of the face and neck had become green. Hair of the body, as well as finger nails had by now worn off from the fingers, due to the depletion of the body. Both the eyes of the deceased were closed, mouth was open and her tongue was hanging out. Following ante mortem injuries are detected by him in the postmortem report:- (1) Contusion on post occipital region of skull, 4 X 6 C.M. colored black with underlying fracture of occipital bone. Both the eyes of the deceased were closed, mouth was open and her tongue was hanging out. Following ante mortem injuries are detected by him in the postmortem report:- (1) Contusion on post occipital region of skull, 4 X 6 C.M. colored black with underlying fracture of occipital bone. Brain is having underlying fracture. (2) Contusion on two buttocks, size 3 C.M. X 3 C.M., colour is black. 5. According to the medical opinion of the doctor the cause of death was possible due to ante mortem injuries sustained by the deceased prior to her death. Further the time of death was determined as two weeks prior to the postmortem. Postmortem was conducted on 27.10.2007, therefore, reasonably death could be on or near about 14th or 15th of October, 2007, as per the postmortem report and the deposition of the doctor (PW3). 6. The doctor further states in his cross-examination that it is possible that the deceased died on 14.10.2007 itself and that in the lungs of the deceased neither sand nor water could be detected. In other words, the suggestion is that the deceased died and was thereafter either thrown in the river or she fell into the river. However, the death is not due to drowning! 7. PW1 who is the father of the deceased repeated the story as narrated by him in the F.I.R. and states that the deceased was married to the accused on 16.04.2001. The accused continuously used to harass his daughter and make demand of dowry. In his cross-examination, however, he states that his daughter was married to the accused in the month of April, “which was prior to the creation of Uttarakhand”. A lot of mileage has been drawn on this statement of PW1 by the defence, inasmuch as, the case of the defence would be that since Uttarakhand (the new State of Uttarakhand) was created (by an Act of Parliament), on 09.11.2000, it would mean that the deceased was married on 16.04.2000 and not in the year 2001, which would in turn mean that the death was caused after seven years of marriage and, therefore, Section 304B of I.P.C. in any case is not attracted! 8. We will come back to this aspect later. PW2 meanwhile is the mother of the deceased, who has reiterated what has already been stated by her husband PW1. 8. We will come back to this aspect later. PW2 meanwhile is the mother of the deceased, who has reiterated what has already been stated by her husband PW1. She has also corroborated the statement of her husband that on one occasion his son-in-law had also raised his hand on his father-in-law i.e. PW1. A statement which has also come in the examination-in-chief of PW1 and in his cross examination, in which he states that accused is a habitual drunkard and used to harass his daughter and make demands of dowry, etc. 9. PW4 is one Pradeep Kumar, who is a young man of about 19 years of age. He states that he and Vinod Kumar reside in the same village. He knows the accused as well as his wife. On 13.10.2007 while he was in his house the accused came to his house at about 8:30 P.M. in the evening. He was carrying ‘mutton’ with him and, after sitting for some time, he told this witness that he should drop him to his house. When both reached the house (of the appellant), his wife Laxmi and his aunt Sateshwari Devi (who is the sister of the father of accused Vinod) and who normally resides at Lucknow but for the last 3-4 months was residing with the accused, were standing outside the home. Vinod asked his wife to cook the mutton which he had bought. Laxmi Devi, however, refused to cook that mutton. At that time, “photographs” of certain women fell from the bag of Vinod. On seeing these photographs Laxmi Devi became suspicious and started interrogating Vinod as to who are these women and why should her husband keep photographs of women in his bag? The two started arguing on this issue. Thereafter, he and Vinod went to sleep in one room and Sateshwari Devi (appellant’s aunt) and Laxmi Devi slept in another room. Nobody ate food that night. When they got up in the morning Laxmi Devi was not to be found in the house and he (PW4), presumed that she must have gone to the fields for some agricultural work. Thereafter, in his cross-examination he denied knowing anything further. He also categorically states in his cross examination that the accused Vinod Kumar at that time was not under the influence of liquor. At this stage, he was declared hostile by the prosecution. Thereafter, in his cross-examination he denied knowing anything further. He also categorically states in his cross examination that the accused Vinod Kumar at that time was not under the influence of liquor. At this stage, he was declared hostile by the prosecution. It appears that in his statement under Section 161 Cr.P.C. to the police he (PW4) had said that Vinod was under the influence of liquor, a statement which was read out to him and which he denied having stated. 10. PW 5 is the Patwari Prabal Singh Rawat who states that on 21.10.2007 the accused Vinod lodged report of missing of his wife before him stating that his wife is missing since 14.10.2007. This report was duly lodged by him. At this stage, it would be mentioned that as per the procedure in the hills of Uttarakhand a procedure which is continuing since the colonial period police powers of registration of crime, investigation and thereafter filing the charge sheet or the final report (as the case might be) is given to revenue officials such as “Patwari”. This practice still continues in the hill areas in the State of Uttarakhand. It is for this reason that the matter was reported by the accused to the Patwari who is actually a revenue officer. As we have already referred above FIR was later lodged by the father of the deceased on 25.10.2007. Thereafter, on 26.10.2007 he was informed by the accused Vinod on telephone that the body of his wife has been discovered from the river “Ganga” and consequently they reached the spot and the inquest was prepared there. 11. PW 6 is one Sri Sashi Prasad Dimari, who at that time was Naib Tehsildar, who had further conducted the investigation and had filed charge sheet. He had recorded the statement of PW2 as well as Smt. Sateshwari Devi (who was never examined by the prosecution) and thereafter arrested the accused, etc. 12. It is, however, clear that the cause of death of the deceased was not due to drowning, as no water or sand particles were discovered in the windpipe of the deceased. There was no trace of sand also inside the body of the deceased. Logically, therefore, the deceased had already died before she was thrown into the water, or before she fell into the water! 13. There was no trace of sand also inside the body of the deceased. Logically, therefore, the deceased had already died before she was thrown into the water, or before she fell into the water! 13. The evidence, nevertheless placed by the prosecution, do not prove beyond a reasonable doubt that it is a case either of murder or of a “dowry death”, under Section 302 and under Section 304B I.P.C., respectively. The reasons are as follows:- As far as charge under Section 302 of I.P.C., on which the appellant has been convicted is concerned, it must be stated that there are no eyewitnesses to the alleged murder. The case is entirely in the realm of circumstantial evidence, which again is not of the nature which can convict the appellant under Section 302 of I.P.C. None of the prosecution witnesses have seen the present appellant committing the alleged crime. PW1 and PW2 are only the witnesses to cruelty and demand of dowry, who are the father and mother of the deceased, respectively. Even if their evidence is treated to be credible evidence, it cannot establish the case of the prosecution beyond Section 498A of I.P.C., and if any other offence can be said to have been committed on the basis of the evidence of PW1 and PW2 it is definitely not the one under Section 302 I.P.C. We also are of a considered view that on the available evidence though cruelty under Section 498A is made out but there is no reliable evidence either under Section 3 or of Section 4 of Dowry Prohibition Act, for convicting the appellant. We say this fully appreciating the tragic nature of the incident. A young woman has lost her life. Yet to hold the appellant guilty of murder, on mere suspicious circumstances with scant legal proof and devoid of supportable evidence, would be unfair to the accused. It is hence not a case of murder under Section 302 I.P.C. 14. The evidence of PW3 who is doctor, who conducted the autopsy of the deceased i.e. Dr. S.P.S. Negi, has indeed an important bearing in the case. It is hence not a case of murder under Section 302 I.P.C. 14. The evidence of PW3 who is doctor, who conducted the autopsy of the deceased i.e. Dr. S.P.S. Negi, has indeed an important bearing in the case. As per the postmortem report corroborated by the prosecution in the examination in chief as well as cross-examination of PW3, establishes that though the body of the deceased was found after 13 or 14 days after the alleged incident in the river, yet the death was not due to drowning but the death actually occurred prior to the drowning. The fact that it is a murder has not been established beyond a reasonable doubt by the prosecution, yet the fact remains that before the body of deceased Smt. Laxmi Devi fell, or was thrown into the river, the deceased was already dead. The only reasonable conclusion therefore is that the place of incident being a rugged hilly area, she might have either jumped or had fallen from the cliff and sustained injuries on her head as given in the postmortem report and thereafter fell into the river. Her husband i.e. the appellant before this Court inflicted cruelty on his wife, the deceased, which in turn abetted suicide is the only possible conclusion which can be drawn from the available facts and evidence of the prosecution. We say this as the evidence of cruelty has been established against the appellant, beyond a reasonable doubt. 15. We, therefore, convert the finding of conviction from Section 302 of I.P.C. to Section 306 of I.P.C. i.e. abetment of suicide. 16. This Court has also heard the State counsel on whether we can convert the finding of 302 of I.P.C. to that of Section 304B of I.P.C. but considering the fact that in the cross-examination of PW1, it has specifically come that his daughter was married in April, 2000 i.e prior to the creation of the State of Uttarakhand it makes the incident beyond a period of seven years and hence atleast a benefit is liable to be given to the appellant on this aspect, and we believe that the trial court has rightly refrained from convicting the appellant under Section 304B of I.P.C. We also acquit the appellant under Section 3/4 of the Dowry Prohibition Act for lack of evidence. As far as the sentence under Section 306 of I.P.C. is concerned, we believe that the sentence of three years of Rigorous Imprisonment and a fine of Rs. 20,000/- shall meet the ends of justice. As far as the findings under Section 498A I.P.C. are concerned we uphold the same as well as the sentence of two years Simple Imprisonment and a fine of Rs. 5,000/-. In case of default of fine of Rs. 5,000/- under Section 498A I.P.C., the appellant shall undergo one month simple imprisonment and in case of default of fine under Section 306 I.P.C., the appellant shall undergo three months simple imprisonment. It is, however, made clear that the entire fine of Rs.25,000/- given by the appellant shall be given to the victim’s family. Both the sentences shall run concurrently. 17. In view of the above the present appeal stands partly allowed. 18. Let the lower court record be sent back to the court below for necessary compliance.