JUDGMENT : The instant Criminal Appeals have been preferred against a common judgment of conviction dated 30.01.2004 and order of sentence dated 31.01.2004, passed by learned Additional District and Sessions Judge, Fast Track Court, Koderma, in Sessions Trial No. 37 of 2002, whereby Bhatni Devi and Vijay @ Chhotan Yadav, both have been convicted by the learned Trial Court for offence punishable under Sections 304 (B) and 306 of the Indian Penal Code and awarded rigorous imprisonment for seven years under Section 304 (B) of the Indian Penal Code and rigorous imprisonment for five years under Section 306 of the Indian Penal Code and a fine of Rs. 10,000/-, in default of payment of fine further rigorous imprisonment for a term of one year and all the sentences are directed to run concurrently. 2. The prosecution case as made out in the First Informant Report is on the basis of a typed copy of written report filed by Mahavir Yadav (P.W. 7) before the Officer-in-Charge, Koderma Police Station on 03.07.2001. The informant has alleged that he has solemnized marriage of his daughter three years ago in April, 1999 with one Vijay @ Chhotan Yadav, son of Janaki Yadav and after her marriage his daughter remained peacefully at sasural for about one year and thereafter her husband Vijay @ Chhotan Yadav (appellant), father in law Janaki Yadav, mother-in-law Bhatni Devi (appellant), elder brother in law Sri Suresh Yadav and wife of Suresh Yadav, Birendra Yadav, Ashok Yadav, started demanding dowry and they used to torture his daughter by saying, that “bring a colour television and Rs. fifty thousand from your father, then you will be allowed to live peacefully” otherwise they will not allow her to live with them. The informant has further stated that, when his daughter said, that her father cannot give additional dowry, she was assaulted and she was not provided food and also threatened her with dire consequences by saying that if the dowry is not being given, she will be killed and thereafter her husband will solemnize second marriage where her husband would get excess gift and dowry. The informant has further alleged that today on 03.07.2001, Ashok Yadav came to his house and said that his daughter is not keeping well and asked him to come with them to see her at Sadar Hospital, Koderma, where the informant went to see her. The informant has further alleged that today on 03.07.2001, Ashok Yadav came to his house and said that his daughter is not keeping well and asked him to come with them to see her at Sadar Hospital, Koderma, where the informant went to see her. The doctor has said that her daughter has taken poison, so she was referred to another hospital for better treatment but in the way, she died. The informant has claimed that his daughter has been killed by poisoning by the in-laws in greed of excess dowry. 3. On the basis of the written report, police instituted Koderma P.S. Case No. 260 of 2001 dated 03.07.2001 under Sections 498 A, 304 (B) of the Indian Penal Code. 4. After investigation the police submitted chargesheet vide no. 239 of 2001 dated 30.09.2001 under Section 306 of the Indian Penal Code against Vijay @ Chhotan Yadav and Bhatni Devi and separate charge sheet no. 294 of 2001 dated 30.11.2001 under Sections 498A, 304(B) and 306 of the Indian Penal Code has submitted against all the accused persons. 5. The cognizance of the offence has been taken vide order dated 15.12.2001 and the case has been committed to the court of sessions vide order dated 14.06.2002. The charge has been framed against the appellants and other co-accused persons under Sections 306, 498 A and 304 B of the Indian Penal Code on 05.08.2002 to which the appellants and other accused persons have pleaded their innocence and thus, they were put under trial. 6. The prosecution to prove its case has examined 13 witnesses and also exhibited a number of documents, up to Exhibit-4 and after closure of the prosecution evidence, the appellants were examined under Section 313 Cr.P.C. on 04.08.2003, on which they have also said about their innocence. 7. Sohar Bhuiyan has been examined as P.W. 1, Babun Yadav has been examined as P.W. 2, Gajanti Devi has been examined as P.W. 3, (Mostt.) Shanti Devi has been examined as P.W. 4. All these witnesses have been declared hostile by the prosecution, Nawal Kishore Singh, the investigating officer of the case has been examined as P.W. 5, Dr. Binay Kumar, Medical Officer has been examined as P.W. 6. Dr. Binay Kumar is the Medical Officer, who has conducted the post mortem examination of the deceased Anita Devi. All these witnesses have been declared hostile by the prosecution, Nawal Kishore Singh, the investigating officer of the case has been examined as P.W. 5, Dr. Binay Kumar, Medical Officer has been examined as P.W. 6. Dr. Binay Kumar is the Medical Officer, who has conducted the post mortem examination of the deceased Anita Devi. Mahavir Yadav is the father of the victim and informant of the case has been examined as P.W. 7, Ramchandra Yadav, uncle of the deceased and an inquest witness has been examined as P.W. 8, Ram Lakhan Yadav, another uncle of the deceased and another inquest witness has been examined as P.W. 9, Babulal Yadav, co-villager of the informant has been examined as P.W. 10, Pappu Kumar Yadav, cousin of the deceased has been examined as P.W. 11, Kheman Yadav, a hearsay co-villager has been examined as P.W. 12, Bali Yadav has been examined as P.W. 13 and has been declared hostile by the prosecution. The prosecution has also brought documentary evidence. Endorsement on written report of the Officer-in-Charge has been proved and marked as Exhibit-1, Formal F.I.R. has been proved and marked as Exhibit-2, Inquest Report and Post mortem Report of the deceased has been proved and marked as Exhibit-3, signature of Ramchandra Prasad Yadav (P.W. 8) on the inquest report has been proved and marked Exhibit-3/1, signature of Ram Lakhan Yadav on the inquest report has been proved and marked as Exhibit-3/2, signature of the informant Mahavir Yadav (P.W. 7) on the written report has been proved and marked as Exhibit-4, and the viscera report of the deceased has been proved and marked as Exhibit-‘4’. After closure of the prosecution evidence, the statement of the appellants was recorded under Section 313 Cr.P.C. on 04.08.2003 and after hearing the parties, the learned Trial Court passed the impugned judgment of conviction and order of sentence which has been assailed before this Hon’ble Court by the appellants. The appellant Vijay @ Chhotan Yadav in Cr. Appeal (SJ) No. 336 of 2004 8. Heard Learned counsel for the appellant, Mr. Kashi Nath Roy, Advocate assisted by Mr. The appellant Vijay @ Chhotan Yadav in Cr. Appeal (SJ) No. 336 of 2004 8. Heard Learned counsel for the appellant, Mr. Kashi Nath Roy, Advocate assisted by Mr. Shree Nivas Roy, Advocate has submitted that there is no evidence for conviction of the appellant under Section 306 of the Indian Penal Code or under Section 304 B of the Indian Penal Code, as the same is not sustainable in the eyes of law and the impugned judgment of conviction and order of sentence is bad in law. Learned counsel for the appellant, Mr. Kashi Nath Roy has submitted that from Exhibit-4, which is forensic report, shows that there was no poison and the doctor, who has examined the victim has not found any injury on the person of the deceased nor he has opined about the death of the deceased rather the doctor has said that deceased has consumed poison and unless and until the forensic report is brought on record, he cannot say about the cause of death. Learned counsel for the appellant has further stated that the forensic report has been brought on record, vide F.S.L. report No. 382 of 2001 dated 19.07.2003, which has been marked Exhibit-4, where the doctor has categorically mentioned that no metallic, alkaloidal, glycosidal, pesticidal or volatile poison could be detected in the dark brown fluid. On the basis of such submission, learned counsel for the appellant, Mr. Kashi Nath Roy has submitted that appellant cannot be convicted under Section 306 of the Indian Penal Code. Learned counsel for the appellant has further submitted that conviction of the appellant under Section 304- B of the Indian Penal Code will not sustain, on the basis of the evidence brought on record. Learned counsel for the appellant has drawn the attention of this court towards the First Information Report, where it is alleged, that after one year of marriage there was a demand of Rs. Fifty thousand and colour television by Janaki Yadav, father-in-law of the deceased, who has already been acquitted by the learned Trial Court and neither the State nor the informant has preferred any acquittal appeal before this Hon’ble Court assailing the judgment of acquittal of Janki Yadav and that has reached finality. Fifty thousand and colour television by Janaki Yadav, father-in-law of the deceased, who has already been acquitted by the learned Trial Court and neither the State nor the informant has preferred any acquittal appeal before this Hon’ble Court assailing the judgment of acquittal of Janki Yadav and that has reached finality. Learned counsel for the appellant has further submitted, that from perusal of Section 2 of the Dowry Prohibition Act, it appears that demand must be related with the marriage. Any demand which has been made after one year of marriage cannot be termed, as dowry if the same has no connection with marriage. Learned counsel for the appellant has drawn the attention of this court towards the judgment reported in 2010 (9) SCC 73 in case of Durga Prasad and Anr. Vs. State of Madhya Pradesh. Learned counsel for the appellant has further submitted that in view of the judgment of the Hon’ble Supreme Court, such demand of Rs. Fifty thousand and a colour television cannot be termed as dowry under the Dowry Prohibition Act and in the present case no charge, under Section 3/4 of the Dowry Prohibition Act, has been framed and as such, conviction of the appellant under Section 304 B of the Indian Penal Code is not sustainable in the eyes of law. Learned counsel for the appellant has further submitted, that for convicting a person under Section 304 B of the Indian Penal Code, four ingredients are necessary, that death must occur within seven years of marriage, death must be in abnormal circumstances, soon before the death there must be cruelty and there must be a demand of dowry. Learned counsel for the appellant has further submitted, that soon before the death of victim (Anita Devi), there is no sign of any cruelty nor any evidence has been brought on record by the prosecution to prove that soon before the death, the victim has been tortured as doctor Binay Kumar (P.W. 6) has not found external or internal injury during autopsy (Exhibit-3). Learned counsel for the appellant has further drawn the attention of this court towards the judgment reported in (2011) 12 SCC 408 in case of Gurdeep Singh Vs. State of Punjab & Others. Learned counsel for the appellant has also drawn the attention of this court towards judgment reported in 2009 (10) SCC 206 in case of Arulvelu & Anr. Versus State. State of Punjab & Others. Learned counsel for the appellant has also drawn the attention of this court towards judgment reported in 2009 (10) SCC 206 in case of Arulvelu & Anr. Versus State. On the basis of such judgment, learned counsel for the appellant has submitted that there is complete lack of evidence of cruelty and demand of dowry and as such the case of the prosecution will not come under the purview of Section 113 B of the Indian Evidence Act and thus the prosecution has not discharged its duty to bring its case under Section 304 B of the Indian Penal Code, the onus lies upon the prosecution and as such, learned counsel for the appellant has submitted, that the accused/appellant, Vijay @ Chhotan Yadav may be acquitted of the conviction passed by the learned Trial Court. Learned counsel for the appellant has drawn the attention of this court towards paragraphs 97 and 98 of the deposition of Mahavir Yadav (P.W. 7-informant of the case), where informant (Mahavir Yadav-P.W. 7) has categorically stated in paragraph 97 during cross-examination, that he has never said before the Investigating Officer, that he went to the house of his daughter and his daughter has said that in-laws are demanding Rs. Fifty thousand and a colour television. Learned counsel for the appellant has further drawn the attention of this court towards paragraph 98 of the deposition of Mahavir Yadav (P.W. 7), where the informant (P.W. 7) has said that he has never said before the Investigating Officer, that his daughter has said, that give the demand of her in-laws, otherwise they will kill her and they will solemnize marriage of her husband, second time. 9. On the basis of such evidence, learned counsel for the appellant has further submitted, that there is no evidence of demand of dowry and as such, the conviction of the appellant under Section 304 B of the Indian Penal code is not sustainable in the eyes of law. 9. On the basis of such evidence, learned counsel for the appellant has further submitted, that there is no evidence of demand of dowry and as such, the conviction of the appellant under Section 304 B of the Indian Penal code is not sustainable in the eyes of law. Learned counsel has further drawn the attention of this court towards Section 2 of the Dowry Prohibition Act, that such demand must be related with the marriage, if the girl has remained peacefully for one year and there was no promise to pay such amount at the time of marriage, the subsequent demand made by the husband from her in-laws, will not come under the purview of the Dowry, as per the Dowry Prohibition Act. Learned counsel for the appellant has drawn the attention of this court towards certain paragraphs of the evidence of P.W. 7 (informant of the case), who says that in the house of the deceased there was a television. Learned counsel has drawn the attention of this court towards First Information Report, where the informant has categorically stated, that after one year of the marriage there was a demand by the in-laws for a colour television and Rs. Fifty thousand. This has been contradicted by several prosecution witnesses, in their depositions. On such premises of the evidence, learned counsel for the appellant has submitted that the appellant can neither be convicted under Section 306 of the Indian Penal Code nor under Section 304 B of the Indian Penal Code. 10. Learned counsel for the State, Mr. Abhay Kr. Tiwari, Additional Public Prosecution has vehemently supported the impugned judgment of conviction under Sections 306 and 304 B of the Indian Penal Code relying upon the judgment report in (2014) 2 SCC 106 in case of Bhupendra Vs. State of Madhya Pradesh, where the conviction of a person can be passed under both the Sections 306 and 304 B of the Indian Penal Code. Learned counsel for the State has further submitted that Anita died within seven years of her marriage, rather within one year of marriage with Vijay @ Chhotan Yadav and she died because of the poisoning, as the Doctor Binay Kumar has said. Learned counsel for the State has further submitted that Anita died within seven years of her marriage, rather within one year of marriage with Vijay @ Chhotan Yadav and she died because of the poisoning, as the Doctor Binay Kumar has said. The conviction of the appellant under Sections 306 and 304 (B) of the Indian Penal Code is based on the material available on record and the judgment of conviction and order of sentence passed by the learned Trial Court is well founded, on the basis of the material brought on record. Learned counsel for the State, Mr. Abhay Kr. Tiwari, Additional Public Prosecutor has submitted that paragraphs 1, 3 and 15 of the evidence of P.W. 7, the ingredients are present for constituting an offence under Section 304 B of the Indian Penal Code as the death is unnatural. The appellant Bhatni Devi in Cr. Appeal (SJ) No. 253 of 2004 11. Learned counsel for the appellant Mr. Anil Kr. Sinha, assisted by Mr. Abhishek Kr. Geasen, Advocates [in Cr. Appeal (SJ) No. 253 of 2004]. Mr. Anil Kr. Sinha has adopted the argument of learned counsel for the appellant Mr. Kashi Nath Roy, Advocate [in Cr. Appeal (SJ) No. 336 of 2004] and has submitted that Bhatni Devi is mother-in-law of the deceased. The learned Trial Court has acquitted Janaki Yadav, who is the father-in-law and against whom there was statement regarding demand of Rs. Fifty thousand from the father of the victim, has been acquitted by the learned Trial Court but no acquittal appeal has been preferred either by the informant or by the State. Learned counsel for the appellant, Mr. Anil Kr. Sinha has further submitted, that Exhibit- 4 belies the case of the prosecution, as the doctor has not found any poisonous substance in the forensic report and P.W. 6, Dr. Binay Kumar has not found any external injury on the person of the deceased. Learned counsel has further submitted, that Section 304 B of the Indian Penal Code is not made out, as there is no demand of dowry at the time of marriage and after one year of marriage, if any such demand is made, as per the prosecution case, then it will not come under Section 2 of the Dowry Prohibition Act. Learned counsel has further submitted, that Section 304 B of the Indian Penal Code is not made out, as there is no demand of dowry at the time of marriage and after one year of marriage, if any such demand is made, as per the prosecution case, then it will not come under Section 2 of the Dowry Prohibition Act. Learned counsel for the appellant has further submitted, that in absence of the evidence of cruelty or torture soon before the death and demand of dowry, a person cannot be convicted under Section 304 B of the Indian Penal Code and has also reiterated the judgment cited by the counsel for Vijay @ Chhotan Yadav and has prayed before this court that appellant be acquitted from the conviction under Sections 306 and 304 B of the Indian Penal Code. Mr. Abhay Kumar Tiwari, Additional Public Prosecutor has reiterated his argument by stating that the lady died within seven years of marriage, in unnatural circumstances and there is an evidence of P.W. 7 is para-1, 3 and 15 that there was a demand of dowry and as such the impugned judgment of conviction does not require any interference by this Hon’ble Court at this juncture. 12. Heard, learned counsel for the appellant Mr. Kashi Nath Roy, Sr. Advocate assisted by Mr. Sri Nivas Roy, Advocate [in Cr. Appeal (SJ) No. 336 of 2004] and Mr. Anil Kr. Sinha, Advocate assisted by Mr. Abhishek Kr. Gyasan, Advocate [in Cr. Appeal (SJ) No. 253 of 2004] and on perusal of the record, First Information Report, there is an averment that after the marriage there was a demand of color television and Rs. Fifty thousand but P.W. 7 (Mahavir Yadav) has categorically stated in paragraph 97 of his cross-examination, that he has not stated before the Investigating Officer that when he went to the house of his daughter, his daughter has never stated that in-laws are demanding Rs. Fifthly thousand and a colour television. From perusal of paragraph 98 of his (P.W. 7- Mahavir Yadav) cross-examination, it appears that informant has never said before the Investigating Officer that his daughter has ever shown any threat to her life at the hands of the in-laws, if the demand is not fulfilled. Fifthly thousand and a colour television. From perusal of paragraph 98 of his (P.W. 7- Mahavir Yadav) cross-examination, it appears that informant has never said before the Investigating Officer that his daughter has ever shown any threat to her life at the hands of the in-laws, if the demand is not fulfilled. From perusal of the evidence of the informant, this court is of the opinion that evidence of demand of dowry and torture is completely lacking in the present case, which are necessary for conviction of a person under Section 304 B of the Indian Penal Code. 13. Sohar Bhuiyan (P.W. 1), Babun Yadav (P.W. 2), Gajanti Devi (P.W. 3), and (Mistt) Shanti Devi (P.W. 4). All these witnesses have not supported the prosecution case and thus have been declared hostile by the prosecution. 14. Nawal Kishore Singh (P.W. 5- Investigating Officer of this case) has proved Exhibit- 1 (endorsement of the Officer-in-Charge) on the typed copy written application filed by the informant. This witness has also proved the signature of the Officer-in-Charge, which has been proved and marked Exhibit-2. This witness has proved the Inquest Report prepared at the Koderma Hospital which has been marked Exhibit-3. This witness has categorically stated in paragraph 7 of his examination-in-chief, that, when he inspected the place of occurrence, he found a television in the house. This witness has further stated in paragraph 21 of his cross-examination that when he inspected the dead body, he did not find any mark of injury or blood on the person of the victim. He has further stated, that Ramchandra Prasad Yadav and Lakhan Yadav have stated before him, that victim has died because of consuming poison. This witness has further stated in paragraph 29 of his cross-examination that there is no eye-witness to the occurrence. He has further stated in paragraph-30 of his cross-examination that on inspection of the place of occurrence, he has not recovered any incriminating articles or poison. 15. Dr. Binay Kumar has been examined as P.W. 6. He has conducted the autopsy of the deceased and has not found any external or internal injury on the body of the deceased, rather he kept his opinion reserved, till forensic report of the Viscera is brought on record. 16. The evidence of P.W. 7, Mahavir Yadav has already been discussed above. Binay Kumar has been examined as P.W. 6. He has conducted the autopsy of the deceased and has not found any external or internal injury on the body of the deceased, rather he kept his opinion reserved, till forensic report of the Viscera is brought on record. 16. The evidence of P.W. 7, Mahavir Yadav has already been discussed above. This witness has proved his signature on the written report submitted by him. This witness has further submitted in paragraph 15 of his cross-examination, that before marriage they were not demanding anything but at the time of marriage Rs. Fifty thousand was demanded but no colour television was demanded by the accused persons. Janaki Yadav has made such demand but said Janaki Yadav has already been acquitted by the learned Trial Court and no acquittal appeal has been preferred either by the informant or the State. From the evidence of P.W. 7, nothing is brought on record to show that there was any evidence of torture and demand of dowry, as discussed above. Paragraph 97 and 98 of his (P.W. 7) cross-examination demolishes his submissions made in paragraph 15 of his cross examination. 17. Ramchandra Yadav has been examined as P.W. 8. He is an inquest witness, who has proved his signature on the inquest report and he is the uncle of the deceased. He is a hearsay witness, he has assigned a different reason on behalf of the prosecution that death of victim was because the husband was not liking the wife. This is not the prosecution case nor such evidence has been brought on record nor it will bring the case in the ambit of Section 304 (B) of the Indian Penal Code. 18. Ram Lakhan Yadav, another uncle of the deceased has been examined as P.W. 9. He is also an inquest witness, who proved the signature on the inquest report as Exhibit 3/2. He has categorically stated in paragraph 24 of his cross-examination that he did not found any mark of injury on the person of the deceased. He has further stated in paragraph 25 of his cross-examination that he has not found any sign of vomiting. This witness (P.W. 9) has further stated that all the accused persons were present in the hospital. He has further stated in paragraph 25 of his cross-examination that he has not found any sign of vomiting. This witness (P.W. 9) has further stated that all the accused persons were present in the hospital. He has further stated in paragraph 33 of his cross-examination, that his niece has no children and in paragraph 34 he has stated that his niece was never treated either by his brother or by him. This witness has further stated in paragraph 42 of his cross-examination, that he has stated before the police that his niece has been administered poison but subsequently contradicted by stating in paragraph 44 of his cross-examination, that none has said before him that his niece has been administered poison by anybody. 19. Babulal Yadav has been examined as P.W. 10. He is a co-villager and accepted that he is a hearsay witness. Nothing has been adduced by him on behalf of prosecution. 20. Pappu Kumar Yadav has been examined as P.W. 11. He is the cousin of the victim. This witness has stated in paragraph-2 and paragraph-3 of his examination-in-chief that relationship between husband and the wife was not cordial and thus Anita died because of poison. When this witness was questioned about his views that whether, Anita was good or bad, he kept mum and thereafter said, that Anita was a beautiful girl. 21. Kheman Yadav has been examined as P.W. 12. He is a hearsay witness and stated that he has not seen the occurrence. 22. Bali Yadav has been examined as P.W. 13 and has been declared hostile by the prosecution. 23. From perusal of the evidence, particularly for constituting an offence under Section 306 of the Indian Penal Code, this court relies upon the evidence of P.W. 6, Dr. Binay Kumar, who has not found any external or internal injury on the person of the victim nor he has given any opinion regarding cause of the death rather he has said that viscra has been sent for chemical examination and on the basis of the report of the Forensic department, the death can be ascertained. From Exhibit-4, which is the Forensic Report No. 382 of 2001 dated 19.07.2003, it appears that Forensic Department has not found any poisonous substances. In the result they have said “no metallic, alkaloidal, glycosidal, pesticidal or volatile poison could be detected in the dark brown fluid”. From Exhibit-4, which is the Forensic Report No. 382 of 2001 dated 19.07.2003, it appears that Forensic Department has not found any poisonous substances. In the result they have said “no metallic, alkaloidal, glycosidal, pesticidal or volatile poison could be detected in the dark brown fluid”. Under such background, the conviction of the appellant under Section 306 of the Indian Penal Code is set aside. So far conviction under Section 304 (B) of the Indian Penal Code is concerned, this court has perused the evidence of P.W. 7, the First Information report based on the written report of Mahavir Yadav (P.W. 7) and from perusal of the First Information Report, it is apparent that at the time of marriage there was no demand of dowry, as per the case of the prosecution, it is only after one year there was a demand of Rs. Fifty thousand but no colour television. From evidence of P.W. 7 at paragraph-97 and 98, informant has categorically stated that he has never said that the accused persons or in-laws are asking her to bring Rs. Fifty thousand and a colour television. In paragraph 98, the informant has stated before the Investigating Officer that his daughter has never shown any threat to her life for non-fulfillment of demand made by the in-laws. From perusal of the evidence of P.W. 5, Nawal Kishore Singh (Investigating Officer), it appears that in the house of the appellant, there was a colour television. Under such background and in absence of any material of cruelty or torture, soon before the occurrence, this court is of the opinion that conviction of the appellant under Section 304 (B) of the Indian Penal Code is also not sustainable in the eyes of law and as such, this court acquits both the appellants Vijay @ Chhotan Yadav and Bhatni Devi by giving benefit of doubt. 24. In the result, the impugned judgment of conviction dated 30.01.2004 and order of sentence dated 31.01.2004 and passed by learned Additional District and Sessions Judge, Fast Track Court, Koderma, in Sessions Trial No. 37 of 2002 in connection with Koderma P.S. Case No. 260 of 2001, consequent to G.R. No. 389 of 2001, is hereby set aside and both the appellants Vijay @ Chhotan Yadav and Bhatni Devi are acquitted of the charges and conviction under Sections 306 and 304(B) of the Indian Penal by giving benefit of doubt. 25. The present Criminal Appeals are accordingly allowed. 26. The appellants, who are on bail, are discharged from liability of their bail bonds. 27. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action.