JUDGMENT : Mohammad Rafiq, J. 1. Accused-appellant Mubarik S/o Shri Husaina has preferred this criminal appeal under Section 374(2) of the Code of Criminal Procedure challenging the judgment and order dated 23.12.2011 passed by the Court of learned Additional Sessions Judge No.2, Deeg, Bharatpur, in Sessions Case No.03/2011, whereby learned trial court convicted him for offence under Section 304B of the Indian Penal Code and sentenced to undergo life imprisonment with fine of Rs.5000/-, in default of payment of fine, to further undergo six months simple imprisonment. 2. Briefly stated the facts of the case are that one Deshraj S/o Ghosi submitted a written report on 08.10.2010 at 11:00 AM at Police Station Sikri stating therein about his receiving a telephone call on that date at 6:00 AM to the effect that his daughter Farida has died due to snake biting. Thereafter, he along-with ten-twenty persons of his village reached Khesti and found Farida having bodily injuries mark and that she died due to the injuries sustained due to that beating. It was also stated that Farida was married to Hakam ten years ago and thereafter she was remarried to Mubarik. It was further stated that immediately after marriage, they started to harass Farida on the pretext of dowry. Farida has been killed by her husband Mubarik, father-in-law Husaina S/o Sardar, mother-in-law Maizidi W/o Husaina and her dead body was lying in the house of Mubarik. On the basis of the said report, the police registered First Information Report No.291/2011, Police Station Sikri. The police commenced investigation thereafter filed challan against accused-appellant Mubarik for offence under Section 302 IPC and Section 304B of the IPC in the court of Judicial Magistrate, Nagar, and since the matter was triable by the court of Sessions, the matter came to be transferred to the court of Sessions and ultimately it came to be transferred to the trial court. The trial court framed charge against the accused-appellant for offence under Section 302 IPC and in alternative for offence under Section 304B of the IPC. The accused-appellant denied the charge and claimed to be tried. 3. The prosecution, in support of its case, examined as many as 22 witnesses and exhibited documents from Exhibit P-1 to Exhibit P-28. The trial court framed charge against the accused-appellant for offence under Section 302 IPC and in alternative for offence under Section 304B of the IPC. The accused-appellant denied the charge and claimed to be tried. 3. The prosecution, in support of its case, examined as many as 22 witnesses and exhibited documents from Exhibit P-1 to Exhibit P-28. The statement of the accused-appellant was recorded under Section 313 Cr.P.C. The defence did not produce any witness, however, exhibited four documents from Exhibit D-1 to Exhibit D- 4. After conclusion of the trial, learned trial court, vide impugned judgment and order, convicted and sentenced the accused-appellant as indicated above. 4. Mr. Anupam Sharma, learned counsel for the accused-appellant, argued that the learned trial court has convicted the accused-appellant on surmises and conjectures. The right of the accused-appellant was seriously prejudiced in view of the defective charge framed against him because under Section 302 IPC it was the duty of the prosecution to prove the guilt against him beyond reasonable doubt and it is a culpable homicidal act while under Section 304B IPC having presumption under Section 113-B of the Indian Evidence Act. Learned trial court has not correctly appreciated the evidence of the prosecution gency as they have collected the evidence observed in charge sheet that it is a case of murder. The learned trial court ought to have been framed the charges on the basis of the report of investigation but however, the learned trial court was confused and not certain as to whether it is a case of murder or it is a case of dowry murder. By framing the charge of offence under Section 302 IPC and alternatively 304B IPC is a grave injustice has been committed. 5. It is argued that composition of the offence under Section 304B IPC is vastly different from the formation of offence of murder under Section 302 IPC and the former cannot be regarded as minor offence vis-a-vis latter. The learned trial court has not appreciated the evidence carefully and the inference drawn by it that it is a dowry murder, is on the basis of surmises and conjectures. 6. The learned trial court has not appreciated the evidence carefully and the inference drawn by it that it is a dowry murder, is on the basis of surmises and conjectures. 6. Learned counsel argued that Desh Raj (PW-1) in the F.I.R. has not narrated any specific incident of demand of dowry and harassment and that his statement under Section 161 Cr.P.C. does not show demand of dowry and cruelty against the deceased by the accused-appellant. Shiv Lal (PW-1) in his statement under Section 161 Cr.P.C. that Farida and Mubarik were living happily and she never complained of dowry and harassment. Fatima (PW- 8), mother of the deceased, also did not give any specific instance for demand of dowry and harassment in her statement under Section 161 Cr.P.C., which was recorded after a period of one-and-half-month. The prosecution has not explained the delay in recording her statement. The learned trial court has not appreciated their evidence correctly. 7. It is argued that the Investigating Officer Balbir Singh (PW-20) has admitted in cross-examination that in his investigation he has not found anything about the demand of dowry for the earlier husband Hakim and also stated that in the statement under Section 161 Cr.P.C. (Exhibit D-1) Deshraj has not stated regarding the demand of dowry. Apart from this, he has also admitted that Shiv Lal (PW-2) had not stated that the accused-appellant and their family members demanded any dowry and that during the investigation no prosecution witness stated that Mubarik and their family members ever demanded any dowry from parents of the deceased. 8. It is further argued that learned trial court has not appreciated the fact that for the offence under Section 304B IPC it is the duty of the prosecution to prove one of the ingredients that death of the woman is caused in abnormal circumstances and within seven years of marriage. The prosecution witnesses have stated that the marriage of Farida was solemnized 10-12 years ago with Hakim, elder brother of the accused-appellant, and after the death of Hakim, she was remarried to accused-appellant Mubarik on 10.05.2005. The incident was said to be within six years of marriage. Manisha (PW-9) is daughter of the accused-appellant and she is the only eyewitness of the incident. The incident was said to be within six years of marriage. Manisha (PW-9) is daughter of the accused-appellant and she is the only eyewitness of the incident. She stated that her father is Mubarik and her age is 7-8 years as recorded by the trial court on 16.06.2011, which shows that the marriage of Farida with Mubarik took place beyond 7-8 years. The prosecution has failed to produce the “Nikah Nama”, which could have been the conclusive proof of the marriage. The marriage of Farida had taken place 10-12 years before the date of the incident. Consequent upon death of elder brother of accused, it was liability of the younger brother to live in relation with his ‘bhabhi’ (sister-in-law) keeping in mind that she was ignoring that she was ten years elder than him. There was no question of demand of dowry. In Mohammedan law there is a provision of ‘Mahr’, which is to be determined and to be paid by the husband to the wife in case there will be any divorce or breach of marriage. 9. The learned trial court has not appreciated this customary aspect. There are general allegations mentioned in the statements of the prosecution witnesses, which are neither mentioned in the F.I.R. nor in their statements under Section 161 Cr.P.C. This factor destroy the substratum of the prosecution story in a far greater measure as it must then be taken that their statements were being recorded for the first time in court which would rob than of much of their evidentiary value. Moreover, two witnesses are none other than the father and the mother of the deceased. The prosecution has failed to establish the demand of dowry soon before the incident. 10. Learned counsel for the accused-appellant has also argued that the prosecution has interpolated the entire case while as per the F.I.R. the allegation of the complainant is that his daughter Farida was killed by her husband Mubarik, her father-in-law and mother-in-law. The prosecution has failed to establish the demand of dowry soon before the incident. 10. Learned counsel for the accused-appellant has also argued that the prosecution has interpolated the entire case while as per the F.I.R. the allegation of the complainant is that his daughter Farida was killed by her husband Mubarik, her father-in-law and mother-in-law. The Investigating Officer has not recorded statement of the star prosecution witnesses within two days and apart from that the F.I.R., which was registered on 08.10.2010 at 11:00 A.M. has not been sent to the concerned Judicial Magistrate having jurisdiction forthwith and after a delay of two days it will be sent to the Judicial Magistrate and the same has been received by the Judicial Magistrate, 1st Class, Nagar, District Bharatpur, on 11.10.2010 at 10:30 A.M. as per the endorsement on Exhibit P-2 by the trial committal court. In such a case an adverse inference is to be drawn that the F.I.R. has not been lodged at the time stated or has been anti timed or anti dated or that the investigation is not fair. In such a case an adverse inference is also to be drawn against the prosecution when there are circumstances from which inference can be drawn that there were chances of manipulation in the F.I.R. by falsely roping the accused persons after deliberation. 11. Learned counsel also argued that it is the duty of the prosecution to establish the fact beyond reasonable doubt constituting the offence under Section 304B IPC and afterward the court shall presume under Section 113-B of the Indian Evidence Act for presumption as to dowry death that such person has committed the dowry death, however, the prosecution has to prove the ingredients, failing which the court cannot take the presumption under Section 113-B but the learned trial court has even ignored this fact and not considered this bare legal provision. Apart from that, the learned trial court in para 11 of the impugned judgment observed that there was no evidence of any prosecution witness which shows that Farida has been caused any injury by accused Mubarik. Further in para 36 of the impugned judgment, the learned trial court observed that there was no eyewitness of the incident and the entire case is based on circumstantial evidence. 12. Further in para 36 of the impugned judgment, the learned trial court observed that there was no eyewitness of the incident and the entire case is based on circumstantial evidence. 12. Learned counsel next argued that learned trial court has not considered the evidence of Sahun (PW-7), who admitted that he and Idrish have removed the dead body, which was hanging and laid the same on cot. This was also supported by Manisha (PW-9), daughter of the deceased, however, she turned hostile. Dr. Mukesh Sharma (PW-16) stated that there is ligature mark, which is up to the extent of Thyroid bone and the injury is dangerous to life and the cause of death was asphyxia, therefore, the death of Farida was due to hanging. Manisha (PW-9) is the real daughter of the accused. She has stated that her father was not present at the place of incident. 13. Mrs. Sonia Shandilya, learned Public Prosecutor, for the State as also Mr. R.R. Goyal, learned counsel for the complainant, opposed the appeal and supported the impugned judgment of the learned trial court. 14. We have given our thoughtful consideration to rival submissions of learned counsel for the parties and perused the material on record. 15. On perusal of the record, we find that initial allegation in the written report/first information report was that the informant received a phone call on 08.10.2010 at 6:00 AM to the effect that his daughter Farida has died due to snakebite. The informant accompanied by 10-20 persons of his village went to village Khesti, where they saw Farida having received injuries on her body and that were apparently received by her due to the beating. 16. The marriage of Farida was performed bout ten years ago with Hakim, the elder brother of accused-appellant Mubarik. After death of Hakim, she was remarried to Mubarik and since then the accused had been harassing her for demand of dowry. The allegation, however, was levelled against the family members that Farida was murdered by her husband Mubarik, father-in-law Husaina, and mother-in-law Majidi. Informant Desh Raj appeared as PW-1. In his statement recorded before the court, again he has stated that his first son-in-law Hakim died about 5-6 years after he was married to Farida. Marriage of Hakim was solemnized with Farida bout 10 years ago. After the death of Hakim, ‘Nikah’ of Farida was performed with accused-appellant Mubarik on 10.06.2005. Informant Desh Raj appeared as PW-1. In his statement recorded before the court, again he has stated that his first son-in-law Hakim died about 5-6 years after he was married to Farida. Marriage of Hakim was solemnized with Farida bout 10 years ago. After the death of Hakim, ‘Nikah’ of Farida was performed with accused-appellant Mubarik on 10.06.2005. Accused-appellant Mubarik was younger brother of Hakim. Farida gave birth to three children out of her first wedlock, but two of them had died and only one was alive. After her second marriage, her husband Mubarik (accused-appellant), her father-inlaw Husaina and mother-in-law Majidi started harassing her in connection with demand of dowry. He further stated that he had given a motorcycle as also cash amount of Rs.52,000/- and other domestic articles but even then these persons used to tell that no dowry has been given. Thereafter when a son was born to Farida, the accused-appellant demanded cash of Rs.1,00,000/- in the birth ceremony. All the three of them used to beat the deceased and used to complain that she was not useful to them and the accused-appellant in particular used to tell her that she was not beautiful and that she was elder to him by ten years. He further stated that accused-appellant Mubarik stopped visiting the village of the informant when the informant gave a tractor in the marriage of his two daughters and thereafter the accused-appellant and his mother Majidi subjected the deceased to beating and ousted her many a times from the house, but the informant caused them to understand. 17. Deceased Farida phoned the informant 8-10 days before the incident that the members of her in-laws used to give her beating and requested him to take her back. Thereafter the informant went to the village of her in-laws and caused them to understand. Mubarik and Majidi demanded tractor from the informant in dowry and he assured to give them tractor on next harvest. Suddenly he received a telephonic call from Sahun that his daughter has died of snakebite. When he along-with 10-20 people of his village went to the village of the accused-appellant, they noticed injuries on the body of the deceased. She was bleeding from her nostrils. Suddenly he received a telephonic call from Sahun that his daughter has died of snakebite. When he along-with 10-20 people of his village went to the village of the accused-appellant, they noticed injuries on the body of the deceased. She was bleeding from her nostrils. This witness was confronted with the written report (Exhibit P-1) that the allegations of demand of dowry, which were now made in the report, were not mentioned by him therein, he stated that he got the written report prepared by some other person who scribed the same on his instructions and he asked him to write about the phone received by him from Sahun but why that was not mentioned therein he could not explain. He admitted that at the time of first marriage of Farida, the family of the accused-appellant did not demand any dowry from him. He also admitted that in the written report he did not allege with regard to giving of motorcycle and cash of Rs.52,000/- at the time of second marriage and also did not mention that he gave tractor in dowry in the marriage of his two other daughters and that similar demand was made by the accused-appellant. He also did not mention about the alleged demand of the accused-appellant of Rs.1,00,000/- at the time when a son was born to deceased Farida out of her wedlock with the accused-appellant. He could not explain as to why in the written report (Exhibit P-1) he mentioned about the demand of dowry at the askance of certain other persons and that means that he now was not making allegation with regard to demand of dowry and subjected the deceased to cruelty for that reason when he made this statement to the police. 18. Even when this witness was confronted with his police statement (Exhibit D-1), in which also all these details were not mentioned, but he failed to give any explanation, rather in that statement he had mentioned that the accused was unhappy with the deceased as his complaint was that she was not beautiful and that she was elder to him, but all that he has stated that he did not give such statement to the police, however, he failed to give any explanation about this discrepancy. He also failed to give any explanation as to why in police statement (Exhibit D-1) it was not mentioned that he went to village Khesti and tried the accused to understand not to harass the deceased. He also failed to explain why he did not mention in the police statement that the deceased telephoned him from her in-laws house ten days before the incident that accused used to beat her, he stated that he mentioned all these things in his statement but why the police has not stated so therein he could not explain. He also could not explain why in police statement (Exhibit D-1) he did not mention that he gave tractor in dowry in the marriage of her two other daughters. He also did not mention in the police statement that accused asked him that he did not like his daughter and he should take her back. 19. Shiv Lal (PW-2) is the neighbour of informant Desh Raj (PW- 1) and has given similar statement. The police recorded his statement 20-25 days after the incident. He went to police station along-with informant Desh Raj (PW-1). It was wrongly recorded by the police in his statement (Exhibit D-2) that first marriage of the deceased was solemnized 18 years ago. In fact, this was only 10 years ago. He did not give the statement to the police that he did not learn about any incident of beating her by the accused. He had mentioned to the police while giving statement under Section 161 of the Cr.P.C. that the informant had given motorcycle and cash of Rs.52,000/- to the accused at the time of his marriage with deceased Farida, but why the police did not mention so in Exhibit D-2 he could not explain. When his statement was recorded by the police under Section 161 Cr.P.C., he gave the statement that the informant had given a tractor and a sum of Rs.1,11,0000/- to his two younger daughters at the time of their marriage but why the police has not mentioned so in Exhibit D-2 he could not explain. He has also mentioned to the police about the quarrel, which took place between the accused-appellant and the deceased and no doubt the accused used to beat her but why the police has not mentioned so in Exhibit D-2 he could not explain. He has also mentioned to the police about the quarrel, which took place between the accused-appellant and the deceased and no doubt the accused used to beat her but why the police has not mentioned so in Exhibit D-2 he could not explain. He also informed the police that informant Desh Raj (PW-1) received the information on telephone that deceased Farida died of snakebite but why the police did not mention so he could not explain. When this witness was confronted with that part of the statement, he stated that he went to the house of the accused after receiving the information of the death of Farida. Accused Mubarik told them that he was not happy with her because she was elder to him by ten years and she did not obey his command and that he wanted to get rid of her and he would marry second time. Such statement was given by him to the police but why the police has not mentioned so he could not explain. 20. Similar statement has been given by Kamaal (PW-3). He too was confronted with his police statement Exhibit D-3, where there were discrepancies similar to those in the statements of Desh Raj (PW-1) and Shiv Lal (PW-2), but he could not explain. Apparently the statements of these witnesses show that the first information report was lodged on 08.10.2010 and thereafter their statements were recorded by the police respectively at that stage on 10.10.2010. It is only when the police recorded the statement of Fatma, mother of the deceased, (Exhibit D-4) on 19.11.2010 that this witness has sought to change her version and now on this stage onward their stand was that the deceased was subjected to cruelty in connection with demand of dowry and therefore was put to death in mysterious circumstances. Fatma has appeared in the court as PW-8 and supported the allegation of demand of dowry by the accused at the time of his marriage with Farida, which in view of the discrepancy in the statement of other witnesses, which does not inspire any confidence. Sahun (PW-10), who allegedly telephoned the informant about the incident, has been declared hostile. There are other reasons too for not believing this allegation. Sahun (PW-10), who allegedly telephoned the informant about the incident, has been declared hostile. There are other reasons too for not believing this allegation. The clear-cut stand taken by the accused before the court is that the family of the accused, namely, his parents, did not demand any dowry at the time of marriage of deceased Farida solemnized with Hakim, elder brother of accused Mubarik, who predeceased her. Secondly Farida gave birth to three children out of her wedlock with Hakim, but two of whom had died premature and only one survived. Farida was ten years elder to the accused-appellant when her ‘nikah’ was performed with him. In these circumstances, the allegation that there was demand of dowry by the accused and his family members hardly inspires any confidence. It is no doubt true that the deceased was found to have sustained four injuries and second injury was contusion at sub-clavicle region of chest present in the size of 3.0 cm wide blueish red in colour simple blunt. The third injury was contusion in the size of 3.5x1.5 cm on left side of chin blueish red simple blunt. The fourth injury was contusion in the size of 1.5x1.0 behind left ear blueish red and simple blunt. But all these are superficial injuries and may have been with the result of scuffle with the accused-appellant but ultimately the cause of her death was not these injuries. She died due to hanging. 21. According to the opinion of the Medical Board, the cause of death was asphyxia brought about as a result of antemortem injury no.1 (strangulation of neck), which was sufficient to cause death in the ordinary course of nature. These three injuries cannot, in the nature of evidence available in the present case, attract Section 304B IPC, which inter alia requires that harassment meted out with the woman in question was related to demand of dowry and further that such cruelty or harassment was caused soon before her death. While latter of these two ingredients may have been attracted in the present case but the cruelty or harassment soon before her death meted out with the deceased in connection with demand of dowry has not at all been established in the present case by the prosecution. While latter of these two ingredients may have been attracted in the present case but the cruelty or harassment soon before her death meted out with the deceased in connection with demand of dowry has not at all been established in the present case by the prosecution. The statements of other prosecution witnesses, namely, Shiv Lal, Kamaal (PW-3) and Muhari (PW-4) may not offer any justification for the finding of conviction under Section 304B IPC. Muhari (PW- 4), Fatthe (PW-5), Deenu (PW-6) and Sahun (PW-7) have not supported the prosecution case and declared hostile. Even then the gist of their statements is that it was just a suicidal death, though there was no demand of dowry. Manisha (PW-9) happens to be daughter of the deceased and the accused. Her age at the time of incident, which took place on 08.10.2010, was about six years but when her statement was recorded in the court as PW-9, she was aged 7-8 years. Even this witness has not supported the prosecution case, although she has stated that when she woke up in the morning she saw her mother hanging. She denied having given statement to police that accused Mubarik has strangulated neck of her mother. She disowned the police statement (Exhibit D- 11) and denied the suggestion that she was giving this statement under the impression of her grandparents. Apart from Balveer Singh (PW-20), the first Investigating Officer and Shiv Ganesh (PW-21), the second Investigating Officer, Gulab Chand (PW-22), the third Investigating Officer, for the obvious reason supported the investigation, which, in any case, all other prosecution witnesses are formal in character. In our considered opinion, the learned trial court though rightly acquitted the accused-appellant for offence under Section 302 IPC but erred in law in convicting him on alternative charge of offence under Section 304B IPC, as the evidence in this case falls short of the required standard of proof beyond reasonable doubt. 22. In the result, the criminal appeal is allowed. The impugned judgment and order dated 23.12.2011 passed by learned Additional Sessions Judge No.2, Deeg (Bharatpur), in Sessions Case No.03/2011 arising out of F.I.R. No.291/2010, Police Station Sikri, is set aside. Conviction and sentence of accused-appellant Mubarik S/o Shri Husaina for offence under Section 304-B of the IPC is set aside. He is acquitted of the charge levelled against him. The impugned judgment and order dated 23.12.2011 passed by learned Additional Sessions Judge No.2, Deeg (Bharatpur), in Sessions Case No.03/2011 arising out of F.I.R. No.291/2010, Police Station Sikri, is set aside. Conviction and sentence of accused-appellant Mubarik S/o Shri Husaina for offence under Section 304-B of the IPC is set aside. He is acquitted of the charge levelled against him. He is in jail and be set at liberty forthwith if not required to be detained in any other case. 23. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, accused-appellant Mubarik S/o Shri Husaina is directed to forthwith furnish a personal bond in the sum of Rs.20,000/- and a surety bond in the like amount before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months, with an undertaking that in the event of filing of Special Leave Petition against this judgment or on grant of leave, he, on receipt of notice thereof, shall appear before the Supreme Court.