JUDGMENT : Hon'ble Bala Krishna Narayana, J. Hon'ble Arvind Kumar Mishra-I, J. The arguments of both the appeals concluded on 11.11.2016. Following orders were passed in Criminal Appeal No.3764 of 2008 and Criminal Appeal No.3765 of 2008 by us on that date, respectively, the same is herein under: "Heard Sri Rajiv Lochan Shukla assisted by Sri Vijay Bahadur Singh and Sri Sandeep Singh, learned counsel for the appellants, Sri J.K Upadhyaya, Sri A.N. Mulla, Kumari Meena learned AGA for the State and Smt. Manju Thakur, brief holder for the state. After having heard learned counsel for the parties and perused the entire lower Court record, we do not find any reason to interfere with the conviction of the appellant recorded under Sections 304B, 498A IPC and 3/4 Dowry Prohibition Act, Police Station Jahangirabad, District Bulandshahar. However, the sentence of imprisonment for life awarded to him by the Trial Court is palliated to the period of imprisonment already undergone by him. The appellant is in jail for last more than 10 years. He shall be released forthwith unless he is wanted in any other case. There shall be however no order as to costs." "Heard Sri Rajiv Lochan Shukla assisted by Sri Vijay Bahadur Singh and Sri Sandeep Singh, learned counsel for the appellants, Sri J.K Upadhyaya, Sri A.N. Mulla, Kumari Meena learned AGA for the State and Smt. Manju Thakur, brief holder for the state. We will give reasons later. But we pronounce the operative portion here and now. This criminal appeal is allowed. The impugned judgment and order dated 21.5.2008 passed by Sri Anil Sharma Additional Sessions Judge, Court No. 1 Bulandshahar is hereby set aside. The appellants are acquitted of all the charges framed against them. They are on bail. Their bail bonds are hereby cancelled and their sureties discharged. There shall be however no order as to costs." Here are the reasons:- Instant criminal appeals have been preferred on behalf of the three appellants in all- Rajiv Kumar @ Bobby s/o Hoti Lal Sharma, Hoti Lal Sharma s/o Ram Charan Sharma and Asharfi Devi @ Inderwati Sharma w/o Hoti Lal Sharma against judgment and order of conviction dated 21.5.2008 passed in Sessions Trial No.1163/2006, State Vs. Rajiv Kumar @ Bobby s/o Hoti Lal Sharma and others, arising out of Case Crime No. 209/2006, Police Station- Jahangirabad, District- Bulandshahr, under Sections 304, 498-A IPC and under Section 4 Dowry Prohibition Act, whereby the trial court has sentenced them to various imprisonments/fine. Appellant- Rajiv Kumar has been sentenced to imprisonment for life while Hoti Lal Sharma and Smt. Asharfi Devi @ Indrawati Sharma each has been sentenced to seven years' rigorous imprisonment, under Section 304-B IPC. Each of the aforesaid accused has been sentenced to two years' rigorous imprisonment under Section 498-A IPC coupled with fine Rs.5000/- and one year rigorous imprisonment, under Section 4 Dowry Prohibition Act coupled with fine Rs.2000/- with default stipulation that the defaulting accused would have to suffer additional six months' and three months' imprisonment, respectively on both counts. Aforesaid sentences have been directed to run concurrently. Appellants were acquitted of charge under Section 3 of The Dowry Prohibition Act, 1961 by the trial court. Prosecution story as unfolded by record reflects that first informant- Sri Ram Niwas Sharma s/o Sri Sita Ram Sharma r/o village- Kheria Jhallu, Police Station- Khair, District- Aligarh lodged report at Police Station-Jahangirabad on 27.6.2006 around 19:15 hours regarding dowry death of his daughter- Neelam Sharma with allegations that informant wedded his daughter- Neelam Sharma to Rajiv Kumar @ Bobby s/o Sri Hoti Lal Sharma on 27.4.2004 and gave dowry, as per his capacity in the marriage but her in-laws were not satisfied with the dowry, therefore, they demanded Rs.1 lakh, as additional dowry. The informant side tried to console the in-laws but they were adamant and maltreated his daughter apart from perpetrating cruelty on her for demand of dowry. Informant's brother- Ajay Kumar- telephonically informed him that in the night intervening 26/27.6.2006, the in-laws of informant's daughter poisoned her (Neelam Sharma) to death. On information so received, he came to the spot at Jahangirabad where he found his daughter dead. Request was made for lodging report and taking appropriate action. Written report is Exhibit Ka-1. On the basis of contents of written report, entries were made in the concerned check FIR at Case Crime No.209/2006 under Section 304-B IPC at the Police Station on 27.6.2006 itself at 7:15 PM. and accordingly, case was registered against the aforesaid accused persons at aforesaid case crime number under Section 304-B IPC and relevant entry in the concerned G.D. was made. and accordingly, case was registered against the aforesaid accused persons at aforesaid case crime number under Section 304-B IPC and relevant entry in the concerned G.D. was made. The Check FIR is Exhibit Ka-12 and the G.D. entry is Exhibit Ka-13. Investigation of the case was done by Deputy Superintendent of Police, Pawan Kumar Yadav PW-8. He proceeded to the spot, after recording statement of the concerned police personnel where he found Naib Tehsildar already present on the spot, therefore, inquest report was prepared and at the instance of the informant, site plan of place of occurrence, was prepared, which is Exhibit Ka-3. He has also proved one marriage-card handed over to him by informant- Sri Niwas Sharma, which has been marked as material Exhibit-1. The inquest report has been proved by Udaipal Singh P.W.9, who was Naib Tehsildar of Tehsil- Anupshahr District- Bulandshahar on 27.6.2006. He has proved preparation of inquest report, Exhibit Ka-7. He has also proved relevant papers for sending the dead body of Smt. Neelam Sharma for postmortem examination. These papers are- photonash, challan dead body- police form 13- letter to R.I. and letter to C.M.O. He has proved these papers as Exhibit Ka-8 to Exhibit Ka-11. Postmortem examination on the cadaver of deceased Neelam Sharma was conducted by Dr. P.N. Gupta PW-7. He conducted postmortem examination on 28.6.2006. Duration was stated to be 1-1/4 days. Upon examination, the doctor found the following ante-mortem injuries : (1) A contusion 3 cm x 2 cm present over right side of neck 5 cm below right ear. (2) A contusion 2 cm x 2 cm present over dorsum surface of left hand 2 cm below from wrist joint. (3) A contusion 1.5 cm x 1 cm present over dorsum surface of root of right thumb. (4) A contusion 2.5 x 2 cm present over anterior aspect of left thigh in middle part. In the opinion of the doctor, cause of death could not be ascertained, hence, viscera was preserved for forensic examination. Dr. P.N. Gupta P.W.7 has proved postmortem examination report as Exhibit Ka-2. Record reflects that the Investigating Officer- Pawan Kumar Yadav also sent viscera to the Forensic Laboratory, Agra. The viscera report was also obtained. The viscera report dated 12th October 2006 is Exhibit Ka-14 and after recording statement of various persons he also filed charge-sheet against each accused. Charge-sheet against Rajiv Kumar is Exhibit Ka-4. Record reflects that the Investigating Officer- Pawan Kumar Yadav also sent viscera to the Forensic Laboratory, Agra. The viscera report was also obtained. The viscera report dated 12th October 2006 is Exhibit Ka-14 and after recording statement of various persons he also filed charge-sheet against each accused. Charge-sheet against Rajiv Kumar is Exhibit Ka-4. Charge-sheet against Hoti Lal is Exhibit Ka-5 and accused Asharfi Devi @ Inderwati Sharma is Exhibit Ka-6. As a sequel to it, the case was committed to the court of sessions, and ultimately it was transferred to the aforesaid trial court, who after hearing the accused persons was satisfied with the prima facie case against accused persons, consequently, framed charges against them under Sections 304B, 498A IPC and under Section 3/4 of the Dowry Prohibition Act. Charge was read over and explained to the accused, who abjured charge and opted for trial. The prosecution in order to prove guilt of the accused examined as many as ten prosecution witnesses. Brief reference of the same is ut infra:- Sri Niwas Sharma P.W.1 is the informant and father of victim Neelam Sharma. He has proved written report, Exhibit Ka-1. Smt. Baby Sharma P.W.2 is the mother of victim Neelam Sharma. She has not supported the case of the prosecution that the victim was ever harassed or treated with cruelty by her-in-laws and her husband. Ajay Sharma P.W.3 is the brother of first informant; like P.W.2 Smt. Baby Sharma, he too has not supported the prosecution version instead clarified that no telephonic call was received by him on 26.6.2006 from victim Neelam Sharma. Sunita P.W.4 is the aunty of victim Neelam Sharma; like Ajay Sharma P.W.3, she has also not supported the prosecution version. Guddiya Devi P.W.5 is wife of Ajay Sharma. She also has not supported the prosecution version and has been declared hostile. Vikash Sharma P.W.6 is the brother of victim Neelam Sharma and he has narrated background of the case and has supported the prosecution version. Dr. P.N. Gupta P.W.7 has conducted autopsy on the cadaver of Neelam Sharma on 28.6.2006 around 4 P.M. and has proved the postmortem report, Exhibit Ka-2. Pawan Kumar Yadav P.W.8 was entrusted with the investigation of the case. He took various steps for completing investigation. He has described in detail the same before the trial court. Dr. P.N. Gupta P.W.7 has conducted autopsy on the cadaver of Neelam Sharma on 28.6.2006 around 4 P.M. and has proved the postmortem report, Exhibit Ka-2. Pawan Kumar Yadav P.W.8 was entrusted with the investigation of the case. He took various steps for completing investigation. He has described in detail the same before the trial court. He has also filed different charge-sheets, Exhibit Ka-4, Ka-5 and Ka-6 against the accused persons. Udaipal P.W.9 at that point of time on 27.6.2006 was posted as Naib Tehsildar in Tehsil- Anupshahr, District- Bulandshahr. He has proved inquest report, Exhibit Ka-7 and has stated that the inquest report was prepared by S.I. Pankaj Verma under his direction. He has also proved other relevant papers meant for sending dead body of victim for postmortem examination. Constable Dinesh Chand P.W.10 has entered contents of written report in the concerned Check FIR and on the basis of the same, registered case against the accused persons and has proved the process before the trial court. Except as above, no other testimony was produced before the trial court, therefore, evidence for the prosecution was closed and statement of accused was recorded under Section 313 Cr.P.C., wherein they denied the allegation/charges and have stated that the victim died due to fact that she was suffering from various abnormalities- she suffered from fits attack. After she consumed some noxious substance, she was given treatment, but she could not be saved. Accused-appellant Hoti Lal Sharma has stated that he is living separately from Rajiv after his marriage with victim because his daughter-in-law use to perplex him. Accused-appellant Smt. Asharfi Devi @ Indrawati Sharma stated that she used to live separately from Rajiv. She has separate ration-card. The defence adduced testimony of Dr. Mukesh Kumar, who has testified on fact that on 13.6.2006, she treated Neelam Sharma, as out door patient and after her examination, he diagnosed Neelam Sharma to be suffering from depression. Thereafter evidence for the defence was closed and the matter was posted for arguments. Learned trial court after hearing both the parties and appreciation of evidence and marshalling of facts passed the aforesaid judgment and order of conviction dated 21.5.2008 passed in Sessions Trial No.1163/2006, State Vs. Thereafter evidence for the defence was closed and the matter was posted for arguments. Learned trial court after hearing both the parties and appreciation of evidence and marshalling of facts passed the aforesaid judgment and order of conviction dated 21.5.2008 passed in Sessions Trial No.1163/2006, State Vs. Rajiv Kumar @ Bobby s/o Hoti Lal Sharma and others, arising out of Case Crime No. 209/2006, Police Station- Jahangirabad, District- Bulandshahr, under Sections 498-A, 304 IPC and under Section 4 Dowry Prohibition Act, as aforesaid. Appellants were acquitted of charge under Section 3 of The Dowry Prohibition Act, 1961 by the trial court. Consequently, this appeal. It has been vehemently urged on behalf of the appellants that in this case the prosecution witnesses of fact particularly the mother, father, uncle and aunty of victim- Neelam Sharma did not support the prosecution case that the appellants committed dowry death pursuant to demand of dowry for Rs. one lakh. The fact is that no such offence has been committed. The victim herself was suffering from depression because after she gave birth to male-child some time ago, she came to know about her ailment that from now onward she would not be able to give birth to any child and this caused great depression to the victim and she was given to fits on several occasions. Her treatment was also done by her husband but the depression continued and the victim under depression took some insecticide as medicine, she was never tortured. No cruelty was perpetrated on her. To say that the accused persons were not pleased with the marriage, is not the correct position. The prosecution witnesses of fact also support case of the appellants that no such demand was made by the accused persons. Fact of death of victim- Neelam Sharma was communicated to his parents by her husband Rajiv Kumar alias Bobby. In so far as the ante-mortem injuries on the other parts of body of victim- Neelam Sharma- are concerned, these injuries are minor ones and the said injuries might have been caused while conveying the dead body in some vehicle to the hospital, and the same is also proved by the testimony of prosecution witnesses that the victim was lying unconscious near hand-pump and some empty container was also lying over there. It is case of both Hoti Lal Sharma and Asharfi Devi @ Inderwati Sharma that they reside separately from appellant Rajiv Kumar after Rajiv Kumar's marriage with Neelam Sharma. While claiming innocence particularly the two appellants- Hoti Lal Sharma and Asharfi Devi @ Inderwti Sharma, we have been persuaded to believe that both were not going to gain any advantage even if any dowry demand was met by the informant because they never resided with their son and the victim after their son entered into wedlock with Neelam Sharma. More so, no specific allegation has been made against these two appellants. Mere vague and general allegations of poisoning have been levelled. The cause of death could not be ascertained and the viscera was preserved. The viscera report also indicates presence of poison Aluminium Phosphide in internal organs. Poison Aluminium Phosphide is also traceable in certain insecticides. These two appellants are having their separate ration-card also in proof of separate living from their son Rajiv Kumar. It has emerged on record that case of dowry demand and consequent torture, if not proved satisfactorily, would never form basis of conviction. The trial court failed to appreciate correctly factual as well as legal aspects of this case and recorded unjust finding of conviction, which cannot be sustained in the eye of law. Per contra, learned AGA has supported finding of conviction recorded by the trial court and submitted that every essential ingredient of Section 304-B, 498-A IPC and Section 4 of D.P. Act has been well established beyond doubt by the prosecution witnesses before the trial court, which cannot be doubted and assailed as such at this stage, in view of clinching evidence. In this case, admittedly, the marriage took place in the year 2004. Thereafter the incident took place in the night intervening 26/27.6.2006, which period falls within seven years period. It also emerges in the testimony of prosecution witnesses of fact that the victim was harassed and tortured by her-in-laws including her husband for and in connection with demand for dowry. Merely because one or two witnesses have turned hostile, would not minimize the importance of testimony of other witnesses, which have stood intensity of cross-examination. It is correct that no specific role has been assigned to each of the appellants but testimony profusely divulges that each of the accused is acting with hand in glove. Merely because one or two witnesses have turned hostile, would not minimize the importance of testimony of other witnesses, which have stood intensity of cross-examination. It is correct that no specific role has been assigned to each of the appellants but testimony profusely divulges that each of the accused is acting with hand in glove. In so far as the essential ingredients of dowry death are concerned, the same has been proved. Now it was up to the accused to have proved satisfactorily circumstances and facts, which led to the death of Neelam Sharma, because dowry death is always custodial death while victim is with her husband and in-laws. The defence was required to prove specifically several injuries as ante-mortem injuries on the cadaver of victim (Neelam Sharma) and which cannot be presumed to have been caused while conveying the dead body of the deceased to the hospital in a vehicle. There is no proof of separate living of Hoti Lal Sharma and Asharfi Devi @ Inderwati Sharma. The entire prosecution case is coherently proved by consistent evidence, which on the whole inspires confidence and truthfulness of prosecution testimony cannot be doubted. The prosecution has proved its case against the appellants beyond reasonable doubt. We have also considered the rival submissions and also considered the prosecution case. The core consideration that arises for determination of the appeals relates to fact whether the prosecution witnesses have proved factum of dowry death beyond reasonable doubt against the accused persons? Admittedly, in this case death of victim Neelam Sharma is admitted to both the sides but the rival claims differ. Prosecution alleges death being result of poisoning, whereas, accused claim death due to fall of the victim as a result of attack of fits. The allegation regarding dowry death has been stated in the first information report, wherein it has been specifically stated that the marriage of victim Neelam Sharma was solemnized with Rajiv Kumar on 27.4.2004. The father of bride gave usual gifts, as per his capacity in the marriage but the husband and in-laws of her daughter harassed and tortured his daughter for demand of dowry. Dowry in the shape of Rs. one lakh cash was demanded by the accused. This demand has been attributed to the three accused persons. The father of bride gave usual gifts, as per his capacity in the marriage but the husband and in-laws of her daughter harassed and tortured his daughter for demand of dowry. Dowry in the shape of Rs. one lakh cash was demanded by the accused. This demand has been attributed to the three accused persons. The informant tried to pacify the accused persons that he being poor man cannot meet such demand because he has already spent Rs.5 lacs in the marriage. His efforts could not deliver the goods and ultimately Ajay Kumar, brother of informant telephonically informed him about death of his daughter by the accused persons in the night intervening of 26/27.6.2006 by poisoning her to death. The informant and other family members when arrived at the place of occurrence, they found Neelam Sharma lying dead. In this factual background, testimony of the prosecution witnesses has got relevance. Sri Niwas Sharma P.W.1 has testified and stuck on the line of contents mentioned in the first information report, as he has proved fact of marriage and dowry demand being made by the accused persons and he has added that he was not in a position to meet any demand for paying Rs. 1 lakh. He has stated on page-9 of the paper book that on 28.1.2005, her daughter was blessed with male child. He went to meet her daughter at her in-laws' house where dowry demand was repeated by her in-laws. When his daughter came to village (in her paternal home) she again told about dowry demand being raised by the accused persons. On 27.6.2006, Sri Niwas Sharma PW-1 was informed about the death of his daughter by his brother Ajay Kumar on telephone. On the same page-9 of the paper book in the last paragraph, he testifies that his daughter- Neelam Sharma had telephonically informed his wife on 24.6.2006 about harassment and torture being perpetrated by the accused- persons on her. Although, in the testimony of informant's wife P.W.2, we find complete 'U' turn from the stand taken by P.W.1 and she has not supported even in the least the prosecution version regarding any dowry demand being raised by the appellants or the fact that the appellants were not satisfied with the marriage and were insisting for demand of Rs. one lakh as dowry. one lakh as dowry. She has categorically stated in her examination-in-chief that no such dowry demand was ever raised by the accused persons and she has denied in her cross-examination the same fact again. On page-20 of her cross-examination, she has testified that after giving birth to male child, her daughter was annoyed and she was given to fits and Rajiv had told her that Neelam Sharma mistakenly took insecticides when the accused persons has gone to their field. Villagers and accused told her that deceased was lying near hand-pump when they came back and empty container of insecticides was also lying over there. They also told her that as soon as they were conveying her over to the hospital, she died on way and in the very last paragraph of testimony she has stated that all the accused persons loved her daughter and her daughter sustained injuries due to fall on the hand-pump. More or less same testimony has been given by Ajay Sharma P.W.3, brother of informant, as that of P.W.2. He has not supported the prosecution version. He has been cross-examined, wherein also he has not supported the prosecution case instead he gave clean chit to the accused and refuted claim of prosecution that the appellants are responsible for causing any dowry death of Neelam Sharma. More or less similar is the testimony of Sunita w/o Rakesh Kumar PW-4. She is real aunty of victim. She has not supported prosecution version like the previous witnesses- P.W.2 and P.W.3. Guddiya Devi P.W.5 also strengthens case of the appellants that no such dowry death was caused by the appellants and she has been declared hostile and cross-examined by the prosecution itself, wherein also nothing substantial has emerged, which may give rise to any hypothesis that the accused persons ever caused dowry death of victim Neelam Sharma. Now, we come across testimony of Vikash Sharma P.W.6- brother of victim- Neelam Sharma. He has supported case of the prosecution. He has testified on page-29 of the paper-book that his sister was wedded to Rajiv on 27.4.2004 and after marriage, accused persons were not satisfied with dowry, therefore, they demanded Rs. one lac, as dowry and they used to treat her sister with cruelty. His sister used to tell about dowry demand and harassment given by the accused persons. He has testified on page-29 of the paper-book that his sister was wedded to Rajiv on 27.4.2004 and after marriage, accused persons were not satisfied with dowry, therefore, they demanded Rs. one lac, as dowry and they used to treat her sister with cruelty. His sister used to tell about dowry demand and harassment given by the accused persons. He has also stated on page-30 of the paper-book that 15-20 days prior to death of Neelam Sharma, he went to meet her at her in-laws house, when victim told him about dowry demand being raised and it was also stated that she is being tortured by her in-laws on account of non-fulfillment of dowry demand. He has also stated on page-31 of the paper-book, that he passed High School examination in the year 2003 when he was 15 years old. He also testified in his cross-examination that dowry demand was made by Hoti Lal Sharma (father-in-law of Neelam Sharma- deceased) in his presence. He further stated in cross-examination that dowry demand was made when he came to take her sister back to her parental home first time after her marriage. Although, he has been confronted with the aforesaid testimony by suggesting that he never went to meet his sister prior to 15-20 days of the occurrence and also on fact that his sister told him that she is sister being tortured on account of non-fulfillment of dowry demand and has been asked whether any such statement was given by him to the Investigating Officer, whereupon he has answered in the negative. Defence has submitted that this improvement has been deliberately made by the witness in order to bring in the necessary ingredient of harassment and maltreatment 'soon before death', as required under Section 304B IPC for proving dowry death. In the absence of any such specific statement given to the Investigating Officer by this witness (Vikash Sharma- P.W.6), it would be deemed to have been an after-thought and result of tutoring and improvement such particular testimony bereft of support from statement under 161 Cr.P.C. have been tried to be inserted by this witness thus stands exposed and it has no base to stand on. Although, he (P.W.6) has accepted that the information of death of Neelam Shama was given by Rajiv himself. Although, he (P.W.6) has accepted that the information of death of Neelam Shama was given by Rajiv himself. He has been suggested in the last paragraph of page no.34 of the paper-book that he is testified falsely against the accused because he wanted to extract some money for running his business. In this backdrop of factual testimony, it would be relevant to take into account testimony of doctor witness- P.N. Gupta, P.W.7, who conducted postmortem examination. He has stated that on 28.6.2006, he conducted postmortem examination of the dead body of Smt. Neelam d/o Sri Niwas Sharma brought by Constable Kishan Lal and Constable Bharat Lal in sealed condition. Dr. P.N. Gupta has proved postmortem report Exhibit Ka-2 wherein, he has described ante-mortem injuries as; contusion 3 cm x 2 cm present over right side of neck 5 cm below right ear; Contusion 2 cm x 2 cm present over dorsum surface of left hand 2 cm below from wrist joint; Contusion 1.5 cm x 1 cm present over dorsum surface of root of right thumb; Contusion 2.5 x 2 cm present over anterior aspect of left thigh in middle part. Cause of death could not be ascertained. Hence, viscera was preserved for forensic examination. In his cross-examination, doctor witness has testified that the Investigating Officer did not record his statement and he has not specifically written anything regarding signs of poisoning on the dead body and in the last paragraph of his testimony, as appearing on page- 37 of the paper book, he has categorically stated that in case, he would have found any symptom of poisoning in the nails of victim, he would have described the same in the postmortem report. Thus, it is obvious that no positive symptoms of poisoning were found on the dead body at the time of examination by the doctor nor any such symptoms have been described in the postmortem report. Exhibit Ka-14 is the forensic examination report, which describes presence of aluminum phosphide in various limbs of the body- say- stomach, intestine, liver, kidney and spleen and the poison has been categorized aluminum phosphide. This is claim of defence that the victim wrongly took insecticide and she was suffering from depression and to substantiate their claim, they have produced Dr. Exhibit Ka-14 is the forensic examination report, which describes presence of aluminum phosphide in various limbs of the body- say- stomach, intestine, liver, kidney and spleen and the poison has been categorized aluminum phosphide. This is claim of defence that the victim wrongly took insecticide and she was suffering from depression and to substantiate their claim, they have produced Dr. Mukesh Kumar DW-1, who treated Neelam Sharma, as outdoor patient on 13.6.2006 and diagnosed depression on the patient and advised for psychiatric treatment. He has also proved Exhibit Kha-1, the prescription paper put in his hand writing. We have taken a wholesome view of the entire testimony, whereby we come across certain facts that the victim was undoubtedly in the custody of her husband at the time of her death, though, claim of the other two appellants- Hoti Lal Sharma and Asharfi Devi @ Inderwati Sharma Devi- is based on facts that no specific allegations have been made against them and several prosecution witnesses also favour their case that no such dowry demand was ever raised by them. They claim to have been living separately from their son, therefore, they cannot be said to have been beneficiary of any such dowry demand. Even PW-1, the informant, Sri Ram Niwas Sharma has testified in his cross-examination that the victim herself did not tell about any dowry demand being raised by accused persons, however, he testified that the fact of dowry demand was told to him by his daughter, his wife and his brother but testimony of informant's wife and brother as PW-2 and PW-3, respectively, is fair enough to show that they never told about any dowry demand being raised by the appellants, therefore, this part of testimony cannot be taken to be correct but embellished and improved one in respect of two appellants- Hoti Lal Sharma and Asharfi Devi @ Inderwati Sharma Devi. Investigating Officer PW-8 Pawan Kumar Yadav has testified in his cross-examination on page no.40 of the paper book that Asharfi Devi @ Inderwati Sharma Devi had given statement that everything was going well but only God knows what happened, either the victim was administered poison or she herself took poison. Investigating Officer PW-8 Pawan Kumar Yadav has testified in his cross-examination on page no.40 of the paper book that Asharfi Devi @ Inderwati Sharma Devi had given statement that everything was going well but only God knows what happened, either the victim was administered poison or she herself took poison. The Investigating Officer also stated on page 41 of the paper book in his cross-examination that Vikas Sharma PW-6 never gave him any statement regarding fact that he visited house of his sister 15-20 days prior to the incident. In this view of the matter, it is obvious that Vikas Sharma PW-6 has tried to improve his testimony regarding cruelty being perpetrated soon before death, as such to rope in father-in-law and mother-in-law of the victim. It appears that he has been tutored on this point. Plea of separate living of both the appellants- Hoti Lal Sharma and Asharfi Devi @ Indravati Devi Sharma coupled with testimony of prosecution witnesses of fact when churned together gives benefit of doubt to the parents of Rajiv Kumar and it can be concluded on the basis of testimony and attendant circumstances that their involvement in the death of Neelam Sharma, is not discernible and it has not come on record in clear-cut terms that both these appellants were residing with the victim and Rajiv Kumar @ Bobby. The only testimony that has surfaced regarding denial of their separate living occurs in the cross-examination of Vikas Sharma PW-6 when he was suggested that both these appellants live separately from Rajiv Kumar @ Bobby, the suggestion has been denied as incorrect. Except as above, there is no any other worthy evidence or circumstance appearing on record that may conclusively show that both these appellants were in fact residing with the victim Neelam Sharma and their son Rajiv Kumar @ Bobby. They have separate ration card and they have categorically stated in their examination under Section 313 Cr.P.C. that both these appellants were perplexed by the behaviour of their daughter-in-law (Neelam Sharma), therefore, they were living separately from their son. Therefore, both the appellants- Hoti Lal Sharma and Asharfi Devi @ Indravati Devi Sharma are entitled to benefit of doubt and are liable to be exonerated of all charges under Section 304-B, 498-A IPC and Section 4 Dowry Prohibition Act. Therefore, both the appellants- Hoti Lal Sharma and Asharfi Devi @ Indravati Devi Sharma are entitled to benefit of doubt and are liable to be exonerated of all charges under Section 304-B, 498-A IPC and Section 4 Dowry Prohibition Act. Now the moot point that arises for adjudication relates to fact that it was husband Rajiv Kumar @ Bobby, who was admittedly the custodian of his wife, while his wife died. We have already discussed the ante-mortem injuries. The explanation that has come-forth signifies that these ante-mortem injuries were caused while carrying away/conveying the victim by vehicle to the hospital. But we do not gather any such testimony nor do we come across any such prevailing circumstance that may give credence to any such hypothesis that these ante-mortem injuries were caused during course of conveyance of Neelam Sharma, therefore, the explanation offered for causing ante-mortem injuries on victim's body by Rajiv Kumar @ Bobby (husband of the victim), cannot be accepted to be reasonable on its face value. These ante-mortem injuries, as noted in the postmortem examination, vindicate claim of the prosecution that the victim was harassed and tortured prior to her death for which no independent corroboration need be sought from any other source. Rest everything has been established by the prosecution against the appellant- Rajiv Kumar @ Bobby. In this regard testimony of P.W.-6 is clinching in so far as it affects accused Rajiv Kumar @ Bobby. Marriage of Rajiv Kumar with Neelam Sharma took place in the year 2004. A son was born out of their wedlock on 28.1.2005 and thereafter dowry demand was insisted and continued and lastly the victim was tortured and done to death by administration of insecticide, which contains aluminum phosphide. The husband has not been able to prove even in slightest degree, that the victim herself consumed insecticide out of mistake. Presumption of dowry death, as contained under Section 113B of the Evidence Act- signifies innocuously that wife shall be deemed to have been in the custody of her husband at the time of her death. The husband being custodian of wife cannot escape liability of causing dowry death of his wife. In this case, therefore, appellant- Rajiv Kumar Sharma @ Bobby is found guilty of committing dowry death. The husband being custodian of wife cannot escape liability of causing dowry death of his wife. In this case, therefore, appellant- Rajiv Kumar Sharma @ Bobby is found guilty of committing dowry death. The learned trial court while appreciating facts and evaluating evidence of various witnesses perhaps misread the wholesome testimony of several prosecution witnesses of fact including the mother of the victim, which did not support prosecution case either partly or in totality and fastened liability on all the three accused persons including father-in-law and mother-in-law of the deceased while on the face appears extra zealous effort on the part of trial court and the same cannot be approved as such by us. However, no specific allegations have been made against two appellants- Hoti Lal Sharma and Asharfi Devi @ Indravati Devi Sharma, the father-in-law and mother-in-law, respectively of the victim. Consequently, the judgment of the trial court dated 21.5.2008 passed in Sessions Trial No.1163/2006, State Vs. Rajiv Kumar @ Bobby s/o Hoti Lal Sharma and others, arising out of Case Crime No. 209/2006, Police Station- Jahangirabad, District- Bulandshahr, under Sections 304B, 498-A IPC and under Section 4 Dowry Prohibition Act in so far as it relates to the conviction part of the aforesaid two appellants- Hoti Lal Sharma and Asharfi Devi @ Indravati Devi Sharma (concerned Criminal Appeal No. 3765-2008) is hereby set aside by us but in so far as conviction of Rajiv Kumar @ Bobby is concerned (Criminal Appeal No. 3764-2008), the same is sustained in appeal by us for reasons aforesaid. The trial court has sentenced to life imprisonment, the husband-accused Rajiv Kumar Sharma @ Bobby with default stipulation for under Section 304-B IPC, whereas looking to the facts and circumstances of this case and looking to the fact that the victim was suffering from depression, as claimed by him, we deem it fit and proper in the interest of justice, that the sentence of life imprisonment would be harsh one and the same is palliated to the period already undergone by accused Rajiv Kumar @ Bobby (husband), which period exceeds 10 years period because he is in jail since July 2006, therefore, he is punished under Section 304-B IPC with the sentence of imprisonment already undergone/suffered by him till date and accordingly, the sentence imposed by the trial court in respect of charge under Section 304-B IPC is hereby modified. Rest other sentences awarded by the trial court against accused Rajiv Kumar @ Bobby under Section 498-A IPC and Section 4 of the Dowry Prohibition Act are hereby maintained by us. The sentences to run confurrently. Consequently, the aforesaid appeal preferred by appellants- Hoti Lal Sharma and Smt. Asharfi Devi @ Indravati Devi Sharma (Appeal No.3765-2008) is hereby allowed and both the appellants- Hoti Lal Sharma and Smt. Asharfi Devi @ Indravati Devi Sharma are exonerated of all charges. They are on bail. They need not surrender in this case. Their personal bonds and bail bonds are cancelled and sureties are discharged. Aforesaid appeal preferred on behalf of Rajiv Kumar @ Bobby (Appeal No. 3764-2008) is allowed partly only in terms of sentencing as aforesaid. He is in jail. He will be released forthwith, if he is not wanted in connection with any other case. However, we direct that the appellants will ensure compliance of provisions of Section 437A Cr.P.C. by appearing before the concerned trial court at the earliest. Let a copy of this order/judgment be certified to the court below for necessary information and follow up action.