JUDGMENT : 1. Being aggrieved by the judgment and order dated 20th September, 2003 in Sessions Case No.95/2000 delivered by the learned Ad-hoc Additional Sessions Judge, Buldana, convicting the appellant (hereinafter referred to as ‘the accused’) for the offence punishable under section 304-B of the Indian Penal Code and sentencing him to suffer R.I. for seven years and to pay a fine of Rs. 1000/-, in default, to suffer SI for six months, the present Appeal is filed. The accused has also been convicted of offence punishable u/s 498A, however, no separate sentence is awarded. 2. Brief facts giving rise to the instant Appeal may be summarized as under:- Deceased-Sharda, was sister of PW1-Pralhad Kharat. Her marriage with accused was performed on 22.4.1996. After marriage, Sharda started residing with the accused at Sindkhedraja. For about one-and-a-half years, accused maintained Sharda nicely, however, it is alleged that thereafter the accused started ill-treating Sharda. It is the case of the prosecution that the accused demanded an amount of Rs. 30,000/- for purchasing a motorcycle and on that count, he subjected Sharda to cruelty and harassment in connection with dowry. The parents of Sharda were residing at Jambhora. Whenever Sharda used to visit her parental home at Jambhora, she used to disclose about the demand made by the accused and ill-treatment at his hands. PW 1-Pralhad, his wife and parents used to give understanding to Sharda and asked her to reside at matrimonial home. It is the case of the prosecution that one month prior to the death of Sharda, she visited the house of her brother PW1-Pralhad. At that time she disclosed about the ill-treatment at the hands of the accused, for the demand of Rs. 30,000/- for purchasing a motorcycle and that the accused was ill-treating her for the said purpose. About 10 to 12 days prior to death of Sharda, one Sudam Kharat, (not examined) from Jambhora, visited the house of Sharda. On his return to Jambhora, he informed Pralhad (PW1) that accused assaulted Sharda and had not provided food to her. On 4.7.2000 at about 10.00 am when PW1-Pralhad was in his house he was informed by Raju Kelkar (not examined) on telephone that Sharda was admitted in General Hospital and was in serious condition. Accordingly, PW1-Pralhad along with Sanjay Aawhale and Shivdas Kharat went to General Hospital, Jalna. On 4.7.2000 at about 10.00 am when PW1-Pralhad was in his house he was informed by Raju Kelkar (not examined) on telephone that Sharda was admitted in General Hospital and was in serious condition. Accordingly, PW1-Pralhad along with Sanjay Aawhale and Shivdas Kharat went to General Hospital, Jalna. On reaching there, he saw the dead body of his sister-Sharda. At the relevant time, PW6 Ramesh Rajput, API, was attached to Police Station Sindkhedraja. He received the complaint Exh.33 of Pralhad and on the basis of it, he registered the offence. Earlier on the same day, accidental death was registered. PW6-Rajput, (API) recorded the statements of the witnesses He arrested the accused. He conducted the spot panchnama and took charge of box of ‘Endosulfan’ under the said spot panchnama. PW6 sent viscera and box of Endosulfan to Chemical Analyser’s office, for analysis. On completion of investigation, he submitted the charge sheet in the Court of learned JMFC. The case was committed to the Court of Sessions. Charge was framed by the learned trial Judge. After conducting the trial and on analysis of evidence and hearing both sides, the learned trial Judge convicted the accused, as aforesaid. Hence, this Appeal. 3. I have heard Shri P B Patil, the learned counsel for the appellant/ accused and Shri S.B. Bissa, the learned Additional Public prosecutor for the respondent-State. With the assistance of both the counsels, I have gone through the entire record of the case meticulously. 4. The learned counsel for the appellant contended that the impugned judgment and order is illegal and perverse, inasmuch as the evidence of the witnesses examined by the prosecution do not in any manner indicate that the ingredients of section 304-B of IPC are attracted. He further submitted that the allegations against the accused are that he demanded an amount of Rs. 30,000/- from the relatives of the deceased; however the said demand was not made by them at all and as such, it was an improvement made by the witnesses, while they were examined by the prosecution. He submitted that Sharda was carrying pregnancy of eight months at the time of her death. Sharda was intending that her delivery should be at her parents’ place. He submitted that Sharda was carrying pregnancy of eight months at the time of her death. Sharda was intending that her delivery should be at her parents’ place. However since she had lost her earlier child just seven days after the delivery at her parental place, the accused was insisting that the parental place being a place in remote village, her second delivery should be done at her matrimonial place i.e. Sindkhedraja. He further submitted that since Sharda was not intending that her delivery should be carried out at Sindkhedraja, out of desperation, she might have taken the extreme step. 5. Per contra, Shri S.B.Bissa, the learned A.P.P. contended that since it is proved by the prosecution that the death of Sharda occurred just within seven years of her marriage otherwise than under normal circumstances and soon before her death she was subjected to cruelty at the hands of the accused, the offence comes under the purview of Sec.304B of IPC. He contended that the learned trial Judge has rightly convicted the accused. 6. He contended that the learned trial Judge has rightly convicted the accused. 6. In this context, it would be advantageous to go through the provisions of Section 304-B of the IPC which reads as under: “304-B : Dowry death : (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death: The law as it exit now provides that where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within 7 years of marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative for or in connection with any demand of dowry such death shall be punishable under Section 304-B. In order to seek a conviction against a person for the offence of dowry death, the prosecution is obliged to prove that: (a) The death of a woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances; (b) Such death should have occurred within 7 years of her marriage; (c) The deceased was subjected to cruelty or harassment by her husband or by any relative of her husband; (d) Such cruelty or harassment should be for or in connection with the demand of dowry; and (e) To such cruelty or harassment the deceased should have been subjected soon before her death. 7. Keeping in mind the legal position, the evidence led by the prosecution is to be scrutinized. The prosecution has mainly relied upon the testimony of PW1- Pralhad Kharat, PW3-Sanjay Aawhale and PW5-Laxman Kelkar. 8. PW1-Pralhad Kharat is the brother of deceased-Sharda. According to him, accused had maintained Sharda nicely for about one-and-a-half years. Thereafter accused started ill-treating her by asking her to bring an amount of Rs.30,000/- for purchasing a motorcycle. According to PW1 as the amount was not given to the accused, he used to beat and harass Sharda. 8. PW1-Pralhad Kharat is the brother of deceased-Sharda. According to him, accused had maintained Sharda nicely for about one-and-a-half years. Thereafter accused started ill-treating her by asking her to bring an amount of Rs.30,000/- for purchasing a motorcycle. According to PW1 as the amount was not given to the accused, he used to beat and harass Sharda. PW1 stated that he used to give understanding to Sharda. According to PW1, about one month prior to the death of Sharda, she visited his house and disclosed that accused used to ill-treat her. She stayed at Jambhora. After about 5 to 10 days accused along with Laxman Kelkar (PW 5) and one Mehtre visited his house. At that time, accused promised that he would neither demand the amount nor ill-treat Sharda. Thereafter PW1 sent Sharda to the house of accused. Again, ten days thereafter PW1 sent his cousin-Sudam Narendra Kharat (nor examined) to the house of accused. Sudam disclosed that Sharda told him that accused was ill-treating her as he used to ill treat her earlier. On 4.7.2000 Laxman (PW 5) informed him on phone that he should immediately proceed to General Hospital, Jalna. Accordingly PW1 went there and to his utter surprise found that Sharda was dead. On 6.7.2000 he lodged the complaint (Exh.33). 9. It is significant to note that an improvement is noticed in the testimony of PW1 with regard to demand of Rs. 30,000/-. Similarly, PW1 has also made an improvement as regards the manner in which Sharda was beaten and harassed by the accused and was ill-treated by him. Similarly further improvement is made with regard to the fact that Sharda disclosed that the accused demanded Rs. 30,000/- and for that she was repeatedly harassed. The said version of PW1 destroys his version about the fact that the accused used to demand Rs. 30,000/- and for the said demand he used to beat, harass and ill-treat Sharda. Thus, the testimony of PW1 does not inspire confidence, with regard to the allegation that the accused used to ill-treat Sharda for fulfilling his demand of Rs. 30,000 and asking her to bring the said amount from her parents’ place. Apart from that, nothing is elicited from the exhaustive cross-examination of PW1. Thus, the testimony of PW1 does not inspire confidence, with regard to the allegation that the accused used to ill-treat Sharda for fulfilling his demand of Rs. 30,000 and asking her to bring the said amount from her parents’ place. Apart from that, nothing is elicited from the exhaustive cross-examination of PW1. One more improvement in the testimony of PW1 is noticed to the effect that in the presence of Laxman and Vishwanath, accused said that he would not demand any amount and would not ill-treat Sharda. PW1 admitted that he had not stated at the time of lodging of his complaint that Sudam disclosed him that Sharda told him that the accused was still demanding the amount and was ill-treating her. The said version of PW1 makes doubtful whether Sharda had disclosed to Sudam and then Sudam told PW1 that the accused continued to demand the amount and ill-treat her, even after returning from her parental home. Thus, the testimony of PW1 with regard to the fact that accused used to demand the amount of Rs.30,000 for purchase of motorcycle and for that purpose he continued to ill-treat her, even after Sharda returned to her matrimonial home, is not reliable and does not inspire any confidence. 10. The testimony of PW 5-Laxman Kelkar shows that the accused is his neighbour and he was knowing Sharda. Sharda used to visit his house and he also used to visit her matrimonial home. He stated that for about one-and- a-half years after the marriage, Sharda was happy, thereafter, Sharda told him that accused was demanding amount for the purpose of purchasing motorcycle and on that count he was ill-treating her. Accused used to beat her and she was not willing to reside with him. PW 5-Laxman stated that he gave understanding to Sharda, so also the accused no.1 He further deposed that one month prior to the death of Sharda, when she was at Jambhora, accused visited his house and wanted to bring Sharda to his house and to maintain her nicely and therefore he accompanied the accused and one Vishwanath and proceeded to Jambhora to the parental house of Sharda. Sharda was not ready to go however, PW 5 gave an understanding to her that accused has promised that he would maintain Sharda nicely. PW5 stated that the father of Sharda sent her with him to Sindkhedraja accordingly. Sharda was not ready to go however, PW 5 gave an understanding to her that accused has promised that he would maintain Sharda nicely. PW5 stated that the father of Sharda sent her with him to Sindkhedraja accordingly. PW5 appears to be related to deceased Sharda as well as the accused. PW5 in unequivocal terms stated that when Sharda came with him from Jambhora to Sindkhedraja, she was happy till her death. Admittedly, PW 5 was the resident of the same village i.e. Sindkhedraja where Sharda used to reside with her husband. The said version indicates that Sharda did not complain anything against the accused soon before her death. If at all the accused continued ill-treating Sharda after fetching her from Jambhora to Sindkhedaraja, Sharda would have certainly complained to PW5 about the alleged ill-treatment for fulfilling the demand of money for purchasing motorcycle. However, PW5 specifically stated that Sharda was happy till her death. An improvement is pointed out in his testimony that Sharda disclosed to him that accused was demanding amount for purchasing motorcycle. He also made an improvement in his testimony before the Court that Sharda disclosed him that accused used to beat her and therefore she was not willing to reside with him, however PW5 gave understanding to the accused as well as Sharda. Thus, all these improvements made by PW5 go to the root of the prosecution case and creates a serious doubt about Sharda disclosing PW5 regarding the alleged ill-treatment at the hands of the accused for the demand of Rs. 30,000/- for purchasing motorcycle. The testimony of PW5 does not inspire any confidence. 11. The prosecution also relied upon the testimony of PW3-Sanjay Aawhale who was resident of Jambhora, in order to prove the alleged demand. PW3 deposed that whenever Sharda used to come to Jambhora, she used to visit his house. For about one year after the marriage she was happy. Thereafter, she told him that the accused was ill-treating and demanding Rs. 30,000 for purchase of a motorcycle. She also disclosed that accused used to beat her. PW3, however, failed to state as to at what point of time Sharda disclosed him about the said demand. He simply stated that one and a half years after the marriage said demand was made. 30,000 for purchase of a motorcycle. She also disclosed that accused used to beat her. PW3, however, failed to state as to at what point of time Sharda disclosed him about the said demand. He simply stated that one and a half years after the marriage said demand was made. In any case, the said version of PW3 does not indicate that the alleged demand was made soon before the death of Sharda. PW 4-Janardhan Kharat also deposed that Sharda disclosed him that accused used to demand the amount for purchasing motorcycle and on that count she was ill-treated. However, the said version is found to be an improvement in the testimony of PW 4. Hence, his testimony cannot be relied upon. 12. It is not disputed that Sharda died unnatural death i.e. due to cardio respiratory arrest due to consumption of organochloro insecticide Endosulphan (Thiodan). However, the prosecution has not established that soon before the death of Sharda, she was subjected to cruelty or harassment by accused and such cruelty or harassment was in connection with demand of dowry. The demand of Rs. 30,000/- is an improvement made in the version of PW1-Pralhad, who is the real brother of Sharda and it was naturally expected that Sharda would inform her real brother about the demand. However the said demand is found to be an improvement in the version of complainant-PW1-Pralhad. 13. Mr. Patil, learned counsel for the appellant placed reliance upon the decision of the Hon’ble Apex Court, in the case of Appasaheb and another vs. State of Maharashtra, reported in AIR 2007 SC 763 . In that case what was allegedly asked for by the accused-husband and mother-in-law of deceased was some money for meeting domestic expenses and for purchasing manure. Since an essential ingredient of Section 304-B IPC viz, demand for dowry was not established, the conviction of the appellants could not be sustained. Paragraph No.6 of the said judgment reads thus: “9. Two essential ingredient of Section 304-B IPC, apart from others, are (i) death of women is caused by any burns or bodily injury or occurs otherwise than under normal circumstances, and (ii) women is subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for “dowry”. Two essential ingredient of Section 304-B IPC, apart from others, are (i) death of women is caused by any burns or bodily injury or occurs otherwise than under normal circumstances, and (ii) women is subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for “dowry”. The explanation appended to sub-section (1) of Section 304-B IPC says that “dowry” shall have the same meaning as in Section 2 of Dowry Prohibition Act, 1961. Section 2 of Dowry Prohibition Act reads as under:- “2. Definition of “dowry” - In this Act “dowry” means any property or valuable security given or agreed to be given either directly or indirectly- (a) by one party to a marriage to the other party to the marriage; or (b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dowry or mahr in the case of persons to whom the Muslim Personal Law (shariat) applies. In view of the aforesaid definition of the word “dowry” any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. .... A demand for money on account of some financial stringency or for meeting some urgent domestic expenses of for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood.” 14. In the case of Sunil Bajaj vs. State of M.P., reported in AIR 2001 SC 3020 , it is held by Hon’ble Apex Court that when no offence was made out, it becomes necessary to disturb such order of conviction and sentence to meet the demand of justice. It is only when the ingredients of Section 304B are established by acceptable evidence such death shall be called “dowry death” and such husband or his relative shall be deemed to have caused her death. (para 5 and 6) 15. It is only when the ingredients of Section 304B are established by acceptable evidence such death shall be called “dowry death” and such husband or his relative shall be deemed to have caused her death. (para 5 and 6) 15. In the case of State of Rajasthan vs. Teg Bahadur and others, reported in (2004) 13 SCC 300 , Para no.18 thereof reads thus, “Our attention was drawn to Section 113B of the Evidence Act and Section 304B of the Indian penal Code by the learned counsel appearing for the accused. A conjoint reading of Section 113B of Indian Evidence Act and Section 304-B of the Indian Penal Code shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution has to be rule out the possibility of a natural or accidental death so as to bring it within the purview of “death occurring otherwise than in normal circumstances..”..... 16. In State of A.P. vs. Raj Gopal Asawa and another, reported in (2004) 4 SCC 470 , the Hon’ble Supreme Court para 10 and Para 11 observed thus, 10. Section 113-B of the Evidence Act is also relevant for the case at hand. Both Section 304-B IPC and Section 113-B of the Evidence Act were inserted as noted earlier by the Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113-B reads as follows:- “113-B: Presumption as to dowry death- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation For the purposes of this section ‘dowry death’ shall have the same meaning as in Section 304-B of the Indian Penal Code (45 of 1860).” The necessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its 21st Report dated 10th August, 1988 on ‘Dowry Deaths and Law Reform’. Explanation For the purposes of this section ‘dowry death’ shall have the same meaning as in Section 304-B of the Indian Penal Code (45 of 1860).” The necessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its 21st Report dated 10th August, 1988 on ‘Dowry Deaths and Law Reform’. Keeping in view the impediment in the pre-existing law in securing evidence to prove dowry related deaths, legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background presumptive Section 113-B in the Evidence Act has been inserted. As per the definition of ‘dowry death’ in Section 304-B IPC and the wording in the presumptive Section 113-B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the concerned woman must have been “soon before her death” subjected to cruelty or harassment “for or in connection with the demand of dowry”. Presumption under Section 113-B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the Court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials: (1) The question before the Court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B IPC). (2) The woman was subjected to cruelty or harassment by her husband or his relatives. (3) Such cruelty or harassment was for, or in connection with any demand for dowry. (4) Such cruelty or harassment was soon before her death. 11. A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the ‘death occurring otherwise than in normal circumstances’. The expression ‘soon before’ is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the ‘death occurring otherwise than in normal circumstances’. The expression ‘soon before’ is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. ‘Soon before’ is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression ‘soon before her death’ used in the substantive Section 304- B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression ‘soon before’ is not defined. A reference to expression ‘soon before’ used in Section 114. Illustration (a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods ‘soon after the theft, is either the thief has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term ‘soon before’ is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression ‘soon before’ would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live-link between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence. 17. There must be existence of a proximate and live-link between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence. 17. In the case of Rajinder Singh vs. State of Punjab, reported in 2016(1) Mh.L.J. (Cri) (SC) 169, the Hon’ble Supreme Court, in para 23, observed as under: “What must be borne in mind is that the word “soon” does not mean “immediate”. A fair and pragmatic construction keeping in mind the great social evil that has led to the enactment of section 304B would make it clear that the expression is a relative expression. Time lags may differ from case to case. All that is necessary is that the demand for dowry should not be stale but should be the continuing cause for the death of the married woman under Section 304B” 18. No doubt, death of Sharda occurred within 7 years of her marriage and her death occurred otherwise than under normal circumstances. However, on careful scrutiny of the evidence on record, there is nothing to suggest that soon before her death, Sharda was subjected to cruelty by the appellant. The testimony of the witnesses examined by the prosecution are full of improvement and exaggerations, hence could not be believed. It is therefore held that the prosecution has failed to establish that deceased-Sharda was subjected to cruelty by the appellant, soon after her death in connection with the demand of dowry. In these circumstances, the case put up by the learned counsel for the appellant that evidence of the witnesses examined by the prosecution do not in any manner indicate that the ingredients of section 304-B of IPC are attracted and since Sharda was not intending that her delivery should be carried out at Sindkhedraja, out of desperation, she might have taken the extreme step, appears to be probable. Hence the order: ORDER: (i) Criminal Appeal No. 600/2003 is allowed. (ii) The impugned judgment and order dated 20th September, 2003 in Sessions Case No.95/2000 delivered by the learned Ad-hoc Additional Sessions Judge, Buldana, convicting the appellant for the offence punishable under section 304-B of the Indian Penal Code is hereby set aside. (iii) The appellant is acquitted of the offence punishable under section 304-B of the IPC. (ii) The impugned judgment and order dated 20th September, 2003 in Sessions Case No.95/2000 delivered by the learned Ad-hoc Additional Sessions Judge, Buldana, convicting the appellant for the offence punishable under section 304-B of the Indian Penal Code is hereby set aside. (iii) The appellant is acquitted of the offence punishable under section 304-B of the IPC. (iv) The bail bond of the appellant shall stand cancelled. (v) Muddemal property, if any, be destroyed after the appeal period is over.