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Madhya Pradesh High Court · body

2016 DIGILAW 916 (MP)

Kamla Devi v. State of M. P.

2016-10-07

D.K.PALIWAL

body2016
JUDGMENT 1. This criminal appeal has been filed under section 374(2) of CrPC, being aggrieved by the judgment of conviction and order of sentence passed by the Fifth Additional Sessions Judge, Bhind in S.T.No.238/2002, whereby the appellants have been convicted for the offence punishable under section 304B of IPC and sentenced to undergo seven years RI with fine of Rs.5,000/- and also convicted under section 498A of IPC and sentenced to undergo three years RI with fine of Rs.2,000/-, and they have further been convicted under section 4 of Dowry Prohibition Act and sentenced to undergo six months RI with fine of Rs.2,000/-, with default stipulation. 2. According to prosecution, appellant No.3 Vinay Kumar Bhadauria has lodged the report that on 17.6.2002 at about 6:00 a.m. when he got awaken in the morning he saw his wife has committed suicide by hanging. On this merg intimation vide Ex.P-28 was recorded. During merg inquiry panchnama of the dead body of deceased Sadhna was prepared and dead body was sent for postmortem examination. Dr. Smt. M. Sharma (PW3) and Dr. O.P. Kastwar (PW8) conducted the postmortem examination and found that Sadhna died due to hanging. During merg inquiry complaint was filed by Savita Chauhan (PW14) that marriage of her daughter Sadhna was solemnized on 11.5.1999 with Vinay Bhadoria. At the time of marriage sufficient dowry was given, but the husband of the deceased, her mother-in-law and maternal mother-in-law(Mausi sas) were not satisfied with the dowry and they used to demand washing machine, cooler and cash of Rs.50,000/-. Due to non-fulfilment of the demand they started harassing the deceased. 20-22 days prior to the 18.6.2002 mother-in-law of the deceased and maternal mother-in-law told Anil (PW15) on telephone that Vinay Bhadoriya is coming on vacation and told him that asked his uncle, father of deceased, to see off deceased with cash of Rs.50,000/-, washing machine and cooler otherwise face the consequences. The complainant along with her husband went to Bhind and tried to persuade the in-laws of the deceased but mother-in-law and maternal mother-in-law of the deceased continued their demand. It is further alleged that 9 days prior to the report Vinay came to her house and asked what happened about demands made by his mother and maternal aunt. The complainant along with her husband went to Bhind and tried to persuade the in-laws of the deceased but mother-in-law and maternal mother-in-law of the deceased continued their demand. It is further alleged that 9 days prior to the report Vinay came to her house and asked what happened about demands made by his mother and maternal aunt. The complainant tried to persuade him and sent her daughter after giving cash of Rs.10,000/- but while boarding on the vehicle Vinay threatened if the balance amount and the aforesaid articles are not given within five days they have to face the consequences. On 18.6.2002 the complainant received the information from her relative that her daughter has been killed at Bhind. Then she along with her family members went to Bhind. The matrimonial home of her daughter was locked. They were informed that Vinay, his mother and maternal aunt has killed her daughter. On the basis of the aforesaid complaint, the offence was registered and after due investigation the charge sheet has been filed in the Court of Chief Judicial Magistrate, Bhind who has committed the case for trial. 3. The learned trial Court framed and explained the charges under sections 304B and 498A in alternative section 302 of IPC and section 3/4 of Dowry Prohibition Act. The appellants/accused absurd their guilt and claimed trial. The defence of the appellants/accused was that Vinay was serving in Indian Army and the deceased was insisting to go with him. Vinay was not having any family quarter as he was not allowed to keep his family in plce of his posting at Jammu & Kashmir. Hence, he could not keep his wife there. It is further stated that the father of the deceased demanded Rs.Ten lacs after cremation of the dead body of the deceased and due to non-fulfilment this false report has been lodged. 4. The prosecution has examined 22 witnesses in support of its case while in defence appellant Vinay has given his statement along with four defence witnesses. The learned trial Court after scanning the material and evidence on record convicted and sentenced the appellants as mentioned in para 1 of this judgment. Being aggrieved, this appeal has been preferred. 5. It is submitted that the learned trial Court has not appreciated the evidence and material in its proper perspective and erred in holding the appellants guilty. The learned trial Court after scanning the material and evidence on record convicted and sentenced the appellants as mentioned in para 1 of this judgment. Being aggrieved, this appeal has been preferred. 5. It is submitted that the learned trial Court has not appreciated the evidence and material in its proper perspective and erred in holding the appellants guilty. The judgment of acquittal is not based on legal and reliable evidence, hence deserves to be set aside. The learned trial Court failed to consider that Savita Chauhan (PW14), mother of the deceased, Ramesh Singh Chauhan (PW16) father of the deceased have categorically admitted that there was no demand of dowry at the time of marriage. It is further submitted that the appellants have been convicted on the basis of general allegations. No overt act of any of the appellant has been established by the prosecution. The statement of Savita Chauhan, mother of the deceased and Ramesh father of the deceased are contradictory with each other, therefore their statement cannot be made basis for recording the conviction of the appellants. It is further submitted that not a single witness residing in neighbour of the deceased has been examined regarding cruelty or harassment as alleged by the prosecution. Dr. O.P. Kastwar (PW8), who conducted the postmortem of the dead body of the deceased has categorically stated that deceased was wearing eight bangles in both the hands and golden ornaments. No injuries were found on the body of the deceased except ligature mark on the neck. The learned trial Court further failed to consider the financial condition of the families of the appellants and the complainant. It is further submitted that the learned trial Court failed to consider that appellants have deposited sum of Rs. One lacs in the name of deceased in the bank by way of FDRs. The condition of father of the deceased is not financially sound. Hence, it is prayed that the conviction and sentence be set aside and the appellants be acquitted. 6. Learned Government Advocate on the other hand supported the judgment of conviction. 7. I have considered the submissions of learned counsel and scrutinized the evidence and material on record. It is not in dispute that marriage of the deceased was solemnized on 11.5.99 and she died on 12.6.2002 i.e. within three years of her marriage. 6. Learned Government Advocate on the other hand supported the judgment of conviction. 7. I have considered the submissions of learned counsel and scrutinized the evidence and material on record. It is not in dispute that marriage of the deceased was solemnized on 11.5.99 and she died on 12.6.2002 i.e. within three years of her marriage. The information regarding the death of the deceased has been given by the appellant Vinay who is husband of the deceased. 8. According to Rajesh Singh Mahore (PW7) he was posted as Naib Tahsildar on 18.6.2002. On receipt of requisition from Police Station Dehat regarding the death of deceased Sadhna he reached the spot he saw the dead body of the deceased was hanging. After inspection of the dead body he found that there was no external injury. For inspection regarding the private part he asked Munni Devi and Head Constable Rekha Jadon. They discloses that there is bleeding from the private part of the deceased and there are some bruises over thigh. He prepared Panchnama Ex.P-2. 9. Dr. O.P. Kastwar (PW8) deposed that on 18.6.2002 he was posted as medical officer in the district hospital Bhind. He has conducted the post-mortem of the dead body of deceased-Sadhna and found ligature mark on the neck which was 5 cm wide. The cause of death was due to hanging. Thus from the aforesaid evidence, it is proved that deceased Sadhna died due to hanging on 12.6.2002. 10. Satyapal (PW13) deposed that Sadhna was his sisters daughter. After marriage Sadhna went to her sasural. Vinay his mother and maternal aunt in law started demanding cash of Rs.50,000/-, washing machine and cooler. His brother-in-law expressed inability and brought Sadhna to their home. Mother of Vinay telephoned Anil that Vinay is coming and asked him to send Sadhna with cash of Rs.50,000/-, washing machine and cooler. This witness has further stated that on 18.6.2002 he went to meet Sadhna, the house of Vinay was locked. Thereafter he came to know that Sadhna had died. 11. Pankaj (PW12) says that Sadhna was his maternal sister. Sadhna was not happy in her sasural because Vinay, Bitti Devi and Kamla Devi used to demand cash of Rs.50,000/-, freeze, colour TV and other articles. Thereafter he came to know that Sadhna had died. 11. Pankaj (PW12) says that Sadhna was his maternal sister. Sadhna was not happy in her sasural because Vinay, Bitti Devi and Kamla Devi used to demand cash of Rs.50,000/-, freeze, colour TV and other articles. He further deposed that 2-3 days prior to death of Sadhna he went to matrimonial home of Sadhna, dispute was going on between Sadhna and her mother-in-law, Vinay and Guddi Devi. Sadhna told her that sent her parents. Thereafter when he went to the house of parent’s of Sadhna he came to know that Sadhna had diad. 12. Pankaj Singh Chauhan (PW12) in his cross examination says that he stated in his police statement that when he went to house of Sadhna the dispute was going on. He also stated the police that Vinay his mother Bitti Devi and Kamla Devi used to say, nothing has been given as dowry and asked her to bring cash of Rs.50,000/-, freeze and colour T.V. This fact have not been mentioned in his case diary statement (Ex.D-1). The omission of this material fact renders testimony of this witness doubtful. In para 11 he says that he has not informed the parents of Sadhna when Sadhna asked him to telephone her parents. This witness claims to be maternal brother of deceased and when he saw the dispute was going on and deceased asked him to inform her parents even then he did not inform the parents of the deceased. This conduct of witness shows that his statement is after thought and being maternal brother he is falsely making his statement. 13. Satyapal Singh (PW13) admitted in para 6 of his cross-examination that the accused persons never demanded dowry from him. He further admitted that he is stating that accused persons demanded dowry as told by his sister and brother in law. Thus deceased has never informed this witness regarding the demand made by the accused persons. This witness happens to be real brother of mother of the deceased. Had demand was made by the accused persons from deceased there was no reason for deceased to complain to this witness. The testimony of this witness does not seem to be reliable. 14. Savita Chauhan (PW14) is the mother of the deceased. She deposed that marriage of her daughter was solemnized on 11.5.1999. She has given the cash of Rs. Had demand was made by the accused persons from deceased there was no reason for deceased to complain to this witness. The testimony of this witness does not seem to be reliable. 14. Savita Chauhan (PW14) is the mother of the deceased. She deposed that marriage of her daughter was solemnized on 11.5.1999. She has given the cash of Rs. One lac, one motorcycle, colour TV, freeze, golden ring, almirah etc. After marriage her daughter used to visit her home. Sadhna told that her husband Vinay, mother-in-law Bitti Devi and aunt-in-law Kamla Devi are not satisfied with the dowry. They demanded cash of Rs.50,000/-, washing machine and cooler. This demand was made soon after marriage. When information regarding Gauna is received then her daughter told that her mother in law, husband and Kamla Devi are saying that she would come back with cash of Rs.50,000/-, washing machine and cooler. On it she went to the father of Vinay at Bhind and informed him that Vinay, Kamla Devi and Bitti Devi are demanding cash of Rs.50,000/-, washing machine, cooler from her daughter. Thereafter, father of Vinay told Bitti Devi, Kamla Devi and Vinay that why they are harassing the deceased. Ramkishore assured that in future no demand shall be made. She further stated that after gauna her daughter came to Daulatpur. She told that her in-laws are saying that her parents are capable to fulfill the demand. She also told that she have been harassed by in-laws. They used to beat her and also deprived her of food. In February 2002 Ramkishore died. Her husband has gone to attend terhavi. The daughter told that she is being harassed by her in-laws and husband. Thereafter her husband brought her daughter Sadhna who was residing with her at Daulatpur. She further stated that about 20-22 days prior to death of her daughter Bitti Devi, Kamla Devi telephoned her nephew Anil to ask his uncle and aunt to make arrangement of cash of Rs.50,000/-, washing machine and cooler Vinay is coming on vacation. On it she and her husband along with Anil came to Bhind and asked Bitti Devi and Kamla Devi not to harass them, but they were adamant. 7-8 days prior to death of her daughter Vinay came to Daulatpura he also asked whether the arrangements of dowry has been made or not.She expressed her inability to fulfill the demand. On it she and her husband along with Anil came to Bhind and asked Bitti Devi and Kamla Devi not to harass them, but they were adamant. 7-8 days prior to death of her daughter Vinay came to Daulatpura he also asked whether the arrangements of dowry has been made or not.She expressed her inability to fulfill the demand. When some pressure was created by Vinay then she gave Rs.10,000/- to Vinay. She further stated that when Vinay was boarding on jeep then he told her that cash of Rs.40,000/-, cooler and washing machine be given otherwise they have to suffer. On 18.6.2002 her brother Satyapal informed that her daughter has been murdered due to non-fulfillment of demand of dowry. Then she came along with husband and Anil to Ranipura and lodged the report Ex.P-1. 15. Ramesh Singh (PW16) has stated that he has given sufficient dowry in the marriage of his daughter. When his daughter came back after 10 days of marriage she told that her mother-in-law Bitti Devi, aunt-in-law Kamla Devi and Vinay were demanding Rs.50,000/-, washing machine and cooler. Thereafter, he and his wife came to Bhind and met father of Vinay Ramkishore, who assured that he would make understand them. He further stated that when Sadhna went to her matrimonial home, Bitti Devi, Kamla Devi and Vinay started harassing her in connection with demand of cash of Rs.50,000/-, cooler and washing machine. They used to beat her and deprived her of food. In February 2002 Ramkishore died. He went to attend terhavi at Bhind he found that Sadhna was unhappy. Thereafter in the Holi he brought his daughter. About 20-22 days prior to death of his daughter Bitti Devi and Kamla Devi telephoned his nephew Anil and told that Vinay is coming on vaccation hence asked his uncle to arrange dowry. He further stated that 7-8 days prior to death of his daughter Vinay came and asked whether the arrangement of dowry has been made or not. He expressed his inability and gave Rs.10,000/-and sent his daughter. When his family members went to see off his daughter Vinay threatened that if dowry is not paid consequences would be serious. 16. Anil Kumar (PW15) stated that at the time of marriage of Sadhna on demand of dowry cash of Rs. One lac, a motorcycle, freeze, colour TV etc. He expressed his inability and gave Rs.10,000/-and sent his daughter. When his family members went to see off his daughter Vinay threatened that if dowry is not paid consequences would be serious. 16. Anil Kumar (PW15) stated that at the time of marriage of Sadhna on demand of dowry cash of Rs. One lac, a motorcycle, freeze, colour TV etc. were given, but Vinay, Bitti Devi and Kamla Devi were not satisfied. They demanded cash of Rs.50,000/-, washing machine and cooler and they also started beating Sadhna. Parents of Sadhna tried to persuade them but they were adamant on demand. In the holi of 2002 father of deceased brought the deceased to Daulatpur. About 22 days prior to the death of Sadhna Kamla Devi and Bitti Devi telephoned him and told that Vinay is coming on vacation hence ask his uncle and aunt to be ready with cash of Rs.50,000/-, washing machine and cooler. He informed his uncle and aunt. He further stated that 7-8 days prior to death of Sadhna Vinay came to Daulatpur and demanded cash of Rs.50,000/-, washing machine and cooler. His uncle and aunt gave him Rs.10,000/- and sent his daughter but again Vinay asked his uncle and aunt to give balance amount ,washing machine and cooler. 17. Anil Kumar (PW15) admitted in para 8 of his cross-examination that he is a practicing lawyer at civil Court Mainpuri since 1990. In para 19 he has stated that he told the police that accused persons started beating Sadhna due to non-fulfilment of demand of dowry. He also told the police that Bitti Devi and Kamla Devi told him on telephone that they want to construct double storey house. In para 20 he says that 7-8 days prior to the death of Sadna Vinay asked him whether arrangement of Rs.50,000/- washing machine and cooler has been made or not. He also told the police that Vinay told that if the dowry is not paid the consequences would be serious. These material facts are missing in his case diary statement. He failed to explain why the aforesaid statement have not mentioned in his case diary statement Ex.D-3. 18. Awdahesh Kumar (PW20) who has recorded the case diary statement of Anil has categorically stated in para 12 that Anil has not told him that Sadhna told him regarding the harassment made by the accused persons. He failed to explain why the aforesaid statement have not mentioned in his case diary statement Ex.D-3. 18. Awdahesh Kumar (PW20) who has recorded the case diary statement of Anil has categorically stated in para 12 that Anil has not told him that Sadhna told him regarding the harassment made by the accused persons. He also not stated that Bitti Devi and Kamla Devi told him on telephone that they want to construct two storey house. Anil has also not stated that 7-8 days prior to incident Vinay told him that whether cash, washing machine and cooler has been arranged or not. Thus there is material improvement by Anil Singh in his Court statement. 19. Anil Kumar (PW15) has stated that parents of Sadhna gave dowry as demanded at the time of marriage but the father of deceased Sadhna Ramesh Singh (PW/16) has categorically admitted in para 9 that no demand was made by the accused persons at the time of marriage. He has given dowry on his sweet will. Thus,the statement of Anil Kumar is falsified by father of deceased. 20. Anil Kumar (PW15) has stated in para 3 that 22 days prior to death of Sadhna, Kamla Devi and Bitti Devi telephoned him on his contact number and told that Vinay Bhadoriya is coming on vacation and asked his uncle to see off the deceased with cash of Rs.50,000/-, washing machine and cooler, but this witness has not given his telephone number or of number of the person in whose telephone Kamla Devi and Bitti Devi told him to inform his uncle to make arrangement of cash of Rs.50,000/-, washing machine and cooler. 21. Anil Kumar (PW15) is a practicing lawyer since 1990, it appears to be unnatural that even after demand of dowry and harassment made by the accused persons and conveyed by the deceased to this witness no complaint has been made to anyone or report lodged to police against the accused persons. 22. Considering the material improvement made by Anil in his statement before Court and material contradiction, coupled with the fact that father of deceased falsified statement of this witness that at the time of marriage dowry was demanded, the testimony of this witness does not inspire confidence of the Court. 23. 22. Considering the material improvement made by Anil in his statement before Court and material contradiction, coupled with the fact that father of deceased falsified statement of this witness that at the time of marriage dowry was demanded, the testimony of this witness does not inspire confidence of the Court. 23. Ramesh Singh (PW16) in para 11 denied that police interrogated him but he says that he told the police that after marriage Vinay, Kamla Devi and Bitti Devi started demanding Rs.50,000/-, washing machine. Why this fact has not been mentioned in case diary statement Ex.D-4 he cannot say. He denied that he told the police that the accused persons started harassing Sadhna after six months of her marriage. He also denied that after death of Ramkishore he went to attend terhavi his daughter was unhappy. He has also not stated that accused persons used to beat Sadhna and deprived her of food. In para 23 he says he has not stated in Ex.D-4 that Satyapal informed him about the death of his daughter then he came to Bhind at 9:00 a.m. 24. Awadesh Kumar (PW20) who recorded the case diary statement of this witness has stated in para 14 that Ramesh Singh has not stated in Ex.D-4 that after marriage in first Vida Kamla Devi and Bitti Devi demanded cash of Rs.50,000/-, washing machine and cooler. Ramesh Singh (PW16) has improved his statement before the Court on material point. Further he disowned material statements of his case diary statement. 25. In para 13 Ramesh Singh (PW16) has stated that no dispute took place at the time of Gauna. In para 14 he says her daughter stayed 15 days in her Sasural after Vida of Gauna. When he went to bring back his daughter accused persons have happily sent his daughter, no dispute took place. In para 15 he says that Sadhna visited her Sasural 4-5 times after marriage prior to her death and he happily sent his daughter and accused persons never raised any dispute whenever he went to Sasural of his daughter. Vinay his mother and maternal aunt happily sent Sadhna with him. Had there any demand of dowry or deceased was illtreated or harassed, some dispute must have took place whenever this witness went to matrimonial home of deceased or whenever accused persons came to his house to bring deceased. Vinay his mother and maternal aunt happily sent Sadhna with him. Had there any demand of dowry or deceased was illtreated or harassed, some dispute must have took place whenever this witness went to matrimonial home of deceased or whenever accused persons came to his house to bring deceased. Deceased was brought by this witness from her matrimonial home and was sent to her matrimonial home by this witness happily raises a doubt regarding truthfulness of demand of dowry and harassment made to deceased by the accused persons. 26. Ramesh Singh (PW16) admitted in para 23 of his cross-examination that he has not called any social panchayat regarding demand of dowry and harassment of his daughter. He further admitted that prior to death of his daughter he has also not made any complaint in the police station regarding the demand of dowry and harassment. Had really soon after marriage demand of dowry was made and due to non-fulfilment of the demand deceased was harassed and this fact has been stated by the deceased to the witness Ramesh Singh who is father of the deceased there was no reason for Ramesh Singh not to call any social panchayat which is a usual practice in this region. It is also surprising that real brother of this witness Anil Kumar (PW15) is practicing law since 1990 even then no complaint has been lodged to the police station. Not calling social panchayat and also not lodging the complaint regarding demand of dowry and harassment raises a serious doubt regarding the truthfulness of this witness. 27. Savita Chauhan (PW14) in her cross-examination has stated that in her report Ex.P-26 and the case diary statement Ex.D-2 she has stated that at the time of gauna accused persons were insisting to bring cash of Rs.50,000/-, cooler and washing machine. The aforesaid fact was told by her daughter prior to her gauna. She also told the police that when she went to see off of his daughter and Vinay in jeep Vinay asked to come with cash of Rs.50,000/-, washing machine and cooler otherwise she has to face the consequences. In para 24 she has stated that she told the police that accused persons used to beat her daughter, harassed her and deprived her of food and not permitting her to talk to anybody. In para 24 she has stated that she told the police that accused persons used to beat her daughter, harassed her and deprived her of food and not permitting her to talk to anybody. She also told the police that prior to gauna she came to Bhind and talked to the father of Vinay. Then Ramkishore asked Vinay, Bitti Devi and Kamla Devi why they are harassing. Why the aforesaid facts are not mentioned in her report Ex.P-2 and case diary statement Ex.D-2 she cannot say. In para 25 she has stated that she told the police that in 2002 her husband came to attend terhavi he saw the deceased unhappy. Deceased told that she is harassed by her in-laws. Why this facts are not mentioned in her report and statement she can’t say. 28. Awadesh Kumar (PW20),who recorded her statement has categorically stated in para 9 that Savita Chauhan has not stated in Ex.D-2 that at the time of gauna demand of cash of Rs.50,000/-, washing machine and cooler was made. Savita has also not stated that accused persons used to beat her daughter, harassed her and deprived her of food. She has also not stated that Savita told that she came to father of Vinay Ramkishore and talked to him and Ramkishore asked Vinay, Kamla Devi and Bitti Devi why they are harassing her. Savita has also not stated that in February 2002 in the terhavi of Ramkishore her husband saw deceased unhappy. Then her daughter told she is harassed by her in-law. Thus in the light of the statement of Awadesh Kumar the statement of Savita Chauhan is falsified. 29. Savita Chauhan (PW14) in para 20 has admitted that whenever Sadhna used to come to her matrimonial home she happily used to sent her. She further admitted that whatever her daughter was wearing jewellry she used to go back with the same. There was no any objection. In para 12 this witness says that Sadhna was studied upto intermediate. Sadhna has sent letters to her and her husband from her matrimonial home but she is not having any letter. Had there was any demand of dowry and harassment to the deceased by her in-laws there was no reason for the deceased not to mention these facts in her letters addressed to her mother and father. Sadhna has sent letters to her and her husband from her matrimonial home but she is not having any letter. Had there was any demand of dowry and harassment to the deceased by her in-laws there was no reason for the deceased not to mention these facts in her letters addressed to her mother and father. There was no reason for Savita not to keep the letters written by deceased to her and her husband. 30. Savita Chauhan (PW14) in para 28 admitted that she has not lodged any report that accused persons are harassing her daughter. She further admitted that she has also not called any Panchayat. For not calling Panchayat she gave explanation that whenever she and her husband used to come to Ramkishore (father of Vinay) he used to pacify them saying not to lodge report for the sake of relationship between his son and daughter. In para 29 she says that in the year 2002 Ramkishore died. Thereafter accused persons started harassing her daughter frequently.After the death of Ramkishore the in-laws of the deceased started harassing frequently. Then panchayat ought to have been called but no such Panchayat has been called. Had really the demand was made by the accused persons and the deceased was harassed. There was no reason to call the Panchayat to settle the dispute or lodge the report. 31. Statement of Vinay Kumar has been recorded in his defence. He has stated that on 17.6.2002 his wife Sadhna has committed suicide by hanging. When he got awaken in the morning he came to know. He informed the villagers and also to police. He sent Mahesh and Mukesh to inform his in-laws. They came at about 5:00 p.m. and the dead body was cremated in the presence of his in-laws. He further stated that after cremation his father-in-law and brother in-law told that if he paid Rs.10 lacs then they would save otherwise ruined his life. He further deposed that at the time of incident he was posted at Jammu and Kashmir where he was not allowed to keep his family. His wife used to insist to live with him at Jammu and Kashmir. He further stated that she was not having any issue. Her wife aborted twice and he got treated her by Dr. Usha Mishra and in Gulab Singh Nursing home at Bhind and also by Dr. Gupta at Itawa. His wife used to insist to live with him at Jammu and Kashmir. He further stated that she was not having any issue. Her wife aborted twice and he got treated her by Dr. Usha Mishra and in Gulab Singh Nursing home at Bhind and also by Dr. Gupta at Itawa. He has never demanded any dowry and harassed the deceased. He denied the suggestion of the prosecution that he used to demand cash of Rs.50,000/-, washing machine and cooler and due to non-fulfilment used to harass deceased. 32. Savita Chauhan (PW14) in para 15 admitted that after marriage Sadhna was not having any issue. Though she denied that there was some problem as a result of which deceased got aborted. She has stated that deceased was compelled to abort. She does not know whether accused has got treated deceased Sadhna regarding abortion. This witness has not dared to deny this factd. She is avoiding to accept the truth. In para 16 she has stated that she does not know whether Vinay has deposited several lacs in FD and saving account of deceased Sadhna. Again this witness has avoided to give an answer which shows that this witness has not dared to deny the aforesaid suggestion but avoided to answer which shows that she is concealing the truth. In para 32 this witness has denied that her daughter was unhappy because she was not having any issue and also that her husband Vinay was not keeping her with him. In para 32 Savita Chauhan has stated that she didn't know whether Vinay was leaving to join his job on 18.6.2002. She denied that on 17.6.2002 her daughter asked Vinay that she should accompany him because she is not having any issue. She further stated that she doesn’t know whether there was a permission to keep the family where Vinay was posted. 33. From the aforesaid analysis of the statement of Ramesh Singh, father of deceased (PW16) and Savita Chauhan (PW14) it is clear that there are material contradiction in their statement and there are also omissions of material facts in their case diary statement and the report lodged by Savita Chauhan (PW14). 33. From the aforesaid analysis of the statement of Ramesh Singh, father of deceased (PW16) and Savita Chauhan (PW14) it is clear that there are material contradiction in their statement and there are also omissions of material facts in their case diary statement and the report lodged by Savita Chauhan (PW14). From the statement of Ramesh Singh (PW16),father of deceased it is clear that no demand was made at the time of marriage, deceased was studied upto intermediate class and used to write letters to her mother and father, but no such letters has been filed, no Panchayat was called and no complaint has been lodged regarding demand of dowry and harassment, both the witnesses have categorically admitted that whenever someone came to bring back deceased from their home and whenever someone went to bring back the deceased from her matrimonial home to their home, no any dispute arose. In veiw of these facts the statement of Savita Chauhan (PW14) and Ramesh Singh (PW16) with regard to demand of dowry and harassment to the deceased by the accused persons, and also that Rs.10,000/ was given to Vinay when he came to bring the deceased have no ring of truth. 34. In the light of aforesaid analysis in the opinion of this Court, the learned trial Court has not appreciated the evidence of the aforesaid witnesses in its right perspective and erred in believing the statement of the prosecution witnesses. The trial Court further erred in invoking presumption under section 113B of the Evidence Act. The provision of section 113B of the Evidence Act can be invoked when prosecution succeeds to prove the demand of dowry and harassment in connection with demand of dowry. {Please see : S. Anil Kumar alias Anil Kumar Ganna v. State of Karnataka [ (2013)7 SCC 219 ]}. 35. Considering the fact that appellant/accused Vinay was posted in Army at Jammu and Kashmir where he was not allowed to keep his family and the fact that deceased was not having any issue. She aborted twice. The possibility of suicide by the deceased due to this reason cannot be ruled out. 36. In view of the aforesaid discussion, the appeal is allowed. The conviction of the appellants under sections 304B and 498A of IPC and under section 4 of Dowry Prohibition Act is set aside. Appellants are acquitted. She aborted twice. The possibility of suicide by the deceased due to this reason cannot be ruled out. 36. In view of the aforesaid discussion, the appeal is allowed. The conviction of the appellants under sections 304B and 498A of IPC and under section 4 of Dowry Prohibition Act is set aside. Appellants are acquitted. Amount of fine if deposited shall be refunded to them. Surety and personal bail bonds are hereby discharged.