JUDGMENT Goverdhan Bardhar, J. - Challenge in the instant criminal appeal has been made by the appellants to the judgment of conviction and sentence dated 03.07.2013 passed by the Court of learned Additional District & Sessions Judge, Dausa (Rajasthan) [for short 'the learned trial Court'] in Sessions Case No. 18/2012, State of Rajasthan Vs. Madan Lal & Ors., whereby the learned trial Court has convicted and sentenced the appellants as under:- U/s. 302 IPC (Appellant Madan Lal): Life imprisonment and fine of Rs.3,000/-, in default of payment of fine to further undergo seven days additional imprisonment. U/s. 201 IPC (Both the appellants): Three years simple imprisonment and fine of Rs.1,000/-, in default of payment of fine to further undergo three days additional imprisonment. Sentences of appellant Madan Lal were ordered to run concurrently. 2. Facts of the case in nutshell are that complainant PW1-Ramlal s/o Ghasiram, by caste Bairwa, aged 60 years, resident of Village Nihalpura Dhani Bassidaran, Tehsil Sikrai, Police Station Sikandara, District Dausa, submitted a written report (Ex.P1) on 03.07.2011 to the SHO, Police Station Dausa Sadar to the effect that he solemnized the marriage of his daughter Asha with Madan Lal son of Kanhaiyalal Bairwa on 13.02.2011. In the marriage, as per his capacity, he gave motor-cycle, T.V., Fridge, Washing Machine, Fan, Cooler, jewellery, amounting to Rs.2,11,000/- in dowry. Soon after the marriage her in-laws namely; husband Madan Lal, Jeth- Sitaram, Jethani- Rajanti, JethRajendra and Jethani- Barfi started to harass and humiliate her and used to give beatings to her. Asha was having pregnancy of 3-4 months and whenever she used to come to her parents' house, these persons used to tell her to bring amount in cash. Today on 03.07.2013 at 6:00 A.M. father-in-law of his daughter informed on telephone that condition of his daughter is not good. He reached at the inlaws place and saw that his daughter was lying unconscious. The surrounding circumstances created doubt in his mind that his daughter had been had been administered some poisonous substance or had been caused internal injury as a result of which his daughter expired. 3. On the basis of the aforesaid written report (Ex.P1) an FIR bearing No. 0245/2011 (Ex.P2) was registered for the offences under sections 498A and 304B IPC. The surrounding circumstances created doubt in his mind that his daughter had been had been administered some poisonous substance or had been caused internal injury as a result of which his daughter expired. 3. On the basis of the aforesaid written report (Ex.P1) an FIR bearing No. 0245/2011 (Ex.P2) was registered for the offences under sections 498A and 304B IPC. The investigation commenced and after investigation the police filed charge-sheet against accused persons for the offences under sections 498A, 304B and 201 IPC in the Court of Chief Judicial Magistrate, Dausa. The case was committed to the Court of Sessions Judge, Dausa from where the case was sent to the trial court for trial court. 4. The learned trial court framed charges against accused appellant for the offences under sections 498A, 304B in the alternative under sections 302 and 201 IPC and against remaining accused persons for the offence under section 201 IPC. The accused appellant denied the charges and claimed to be tried. 5. The prosecution in support of its case recorded the statements of twenty one witnesses and fourteen documents were exhibited. Thereafter, the accused/appellant was examined under Section 313 Cr.P.C. He pleaded that prior to death of Asha he lived with her for six hours and with a view to take money, the complainant had lodged the FIR. In defence the appellants produced two witnesses. The learned trial court after considering the evidence led during the course of trial convicted and sentenced the accused/appellants for the charges levelled against them vide impugned judgment/order dated 03.07.2013. The appellants aggrieved and dissatisfied with the impugned judgment/order of conviction and sentence have preferred the instant criminal appeal. 6. Learned counsel for the accused-appellant argued that the findings of the trial court are based on unreliable testimony of the prosecution witnesses without any corroboration from the independent source. The FIR has been lodged for the offences under sections 498A, 304B and 201 IPC but challan was filed for the offences under sections 498A and 304B IPC. Neither the report was lodged for the offence under section 302 IPC nor challan was filed for the offence under section 302 IPC. Despite that the learned trial court framed charges for the offences under sections 498A and 304B IPC and in the alternate under sections 302 and 201 IPC. Neither the report was lodged for the offence under section 302 IPC nor challan was filed for the offence under section 302 IPC. Despite that the learned trial court framed charges for the offences under sections 498A and 304B IPC and in the alternate under sections 302 and 201 IPC. There is not an iota of evidence for offence under section 302 IPC except that the appellant No.1- Madan Lal was the husband of the deceased Smt. Asha. Though, under the Indian Evidence Act, presumption can be drawn for offence under section 304B IPC but no presumption can be drawn for offence under section 302 IPC. For making out a case under section 302 IPC, the prosecution has to prove its case beyond all reasonable doubt. The cause of death was due to organophosphorous poison. The said poison is not available to any person easily and only the licence holder can sell the said poison after getting fulfilled the prescribed formalities and bill is also required to be issued for this article. In the instant case the prosecution has failed to produce any evidence with regard to the possession of the poison. Unless the accused appellant No.1 is connected with the poison, he cannot be convicted for the offence under section 302 IPC. Before her death Smt. Asha had a talk with her mother on the mobile phone for 791 seconds and next day in the morning i.e. on 03.07.2011 she had twice talked for 139 seconds and 302 seconds, but she did not make any complaint of any kind against the accused. PW15-Ramkishan Meena and PW16- Vishram deposed in their testimony that they and other family members of accused remained with the deceased till her death. They along-with the accused took Smt. Asha to the village Khanpur for treatment by 'bhopa' and also to some other places. Hence, it cannot be said that the accused had any motive to commit murder of Smt. Asha. There was no dispute between the family members of deceased and accused party. Viscera was taken on 15.07.2011 but the same was handed over to the FSL on 18.07.2011. There is no evidence on record to show that with whom the viscera jar remained between 15th July to 18th July 2011. The doctor deposed that during the course of autopsy no smell of poison came from the body of the deceased. Viscera was taken on 15.07.2011 but the same was handed over to the FSL on 18.07.2011. There is no evidence on record to show that with whom the viscera jar remained between 15th July to 18th July 2011. The doctor deposed that during the course of autopsy no smell of poison came from the body of the deceased. If the deceased had consumed the organophosphorous substance then smell of the same must have been found in the stomach. Quantity of poison has not been mentioned in the FSL report. FIR was lodged after a great delay. 7. Learned Public Prosecutor opposed the appeal and supported the impugned judgment of conviction and sentence passed by the learned trial court. 8. Complainant PW1-Ghasiram who is father of deceased in his testimony reiterated the averments made in the written report (Ex.P1) on the basis of which FIR (Ex.P2) was registered. In addition to the averments made in the written report (Ex.P1) this witness deposed that on the very day of marriage Madanlal had got angry for the reason that motor-cycle had not been given in dowry. Appellant No.1 (Madan) was making demand of a four wheeler. Sitaram had set on fire the tent. Many times appellant No.1 used to make demand of money. He saw Asha unconscious in the house of Kanhaiyalal. From the mouth of Asha, foam was coming out and her lips were becoming in blue colour. The statement of this witness is corroborated by PW2-Smt. Prem, mother of the deceased. Rajuram Bairwa is witness of site-plan Ex.P5. 9. Pw4-Dr.R.D. Sharma deposed that on 04.07.2011 he was posted as Medical Jurist in District Dispensary, Dausa. Medical Board was constituted in which he was one of the Member. This witness deposed that on 04.07.2011 at 9:45 AM, he conducted the autopsy (Ex.P6) on the dead body of Smt. Asha. The primary mode of death was due to Asphyxia, however, final opinion as to cause of death of Smt. Asha will be given only after receiving the FSL report. The FSL report is Ex.P7. The result of examination is as under:- "On chemical examination, portions of viscera(1-8) from the packets marked B,A and C respectively gave positive tests for the presence of Organophosphorous Insecticide and gave negative tests for metallic poisons, ethyl and methyl alcohol, cyanide, alkaloids, barbiturates, tranquilizers and inconclusive results for Snake Venom. The FSL report is Ex.P7. The result of examination is as under:- "On chemical examination, portions of viscera(1-8) from the packets marked B,A and C respectively gave positive tests for the presence of Organophosphorous Insecticide and gave negative tests for metallic poisons, ethyl and methyl alcohol, cyanide, alkaloids, barbiturates, tranquilizers and inconclusive results for Snake Venom. Exhibit (9) from packet marked D gave inconclusive results for Snake Venom." 10. This witness further deposed that normally Organophosphorous Insecticide is used for vegetables etc. The statement of PW4- Dr. R.D. Sharma is corroborated by PW6-Dr. Heeralal Dayman, PW8- Dr. Sarika Gothwal and PW10- Dr. Gangaram. 11. Pw5- Harisingh is witness of receipt Ex.P8. 12. Pw7-Ramkishan deposed that the deceased was his niece (bhanji) and on one occasion when he went to the house of Madanlal then he told him that accused tortured his daughter for or in connection with demand of dowry. This witness deposed that Asha (deceased) narrated about the said fact one and half month ago before her death when she came to her parent's home. 13. Pw9-Himanshu deposed that on 03.11.2011 he was posted as Circle Officer. He made further investigation in the matter and after investigation submitted chargesheet against accused persons. 14. Pw11-Laxmikant Sharma deposed that on 03.07.2011 he was posted in Police Station Dausa. On that day complainant Ramlal submitted a written report (Ex.P1) before him. Investigation in the matter was given to Mr. Jeewanram Vishnoi, C.O. Dausa. 15. Pw13-Radhey Shyam deposed that Madanlal (accused appellant No.1) in the marriage before rituals of 'toran' showed bad behaviour in connection with demand of a four wheeler. This witness deposed that whenever Asha (now deceased) used to come to her parents' house, she used to tell that her husband and her-laws torture and harass her for or in connection with demand of dowry and usually the accused persons used to beat her. The statement of this witness is corroborated by PW14-Ramjilal. 16. Pw20- Rajveer is witness of FSL report (Ex.P7). 17. In the present case there is ample evidence that deceased was subjected to cruelty soon before her death in connection with demand of dowry. Smt. Asha died within short span of five months from the date of her marriage at in-laws place and her death was unnatural. 18. 16. Pw20- Rajveer is witness of FSL report (Ex.P7). 17. In the present case there is ample evidence that deceased was subjected to cruelty soon before her death in connection with demand of dowry. Smt. Asha died within short span of five months from the date of her marriage at in-laws place and her death was unnatural. 18. As far as charges against the accused appellant No.1 for offence under section 304B IPC is concerned, from the statements of material witnesses of the prosecution it is clear that the prosecution has proved that soon before the death of deceased Smt. Asha, the accused appellant No.1 subjected her to cruelty and harassment in connection with demand of dowry. 19. As per the definition of "Dowry Death" in Section 304B IPC and the wording in the presumptive section 113B of the Indian Evidence Act, one of the essential ingredients amongst others, in both the provisions is that the woman concerned must have been "soon before her death subjected to cruelty or harassment for or in connection with the demand of dowry". Presumption under Section 113B of the Indian Evidence Act is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the Court to raise a presumption that accused appellant No.1 caused the dowry death. 20. Section 113B of the Indian Evidence Act reads as under:- "113B. 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 304B, of the Indian Penal Code, (45 of 1860)." 21. Complainant PW1-Ghasiram who is father of Asha (now deceased) deposed that in-laws of Asha used to torture and harass her for or in connection with demand of dowry. 22. PW-2 Smt.Prem, mother of Asha (now deceased) deposed that her in-laws were unhappy with the nonfulfillment of demand of dowry. This witness further deposed that Asha (now deceased) had often made complaint regarding, harassment and beating given to her for or in connection with demand of dowry. 23. 22. PW-2 Smt.Prem, mother of Asha (now deceased) deposed that her in-laws were unhappy with the nonfulfillment of demand of dowry. This witness further deposed that Asha (now deceased) had often made complaint regarding, harassment and beating given to her for or in connection with demand of dowry. 23. Pw21-Jeevan Ram deposed that the report against accused persons was submitted on 03.07.2011. Marriage took place on 13.02.2011. Within five months Asha died at her in-laws place. The death of Asha was unnatural. Whenever Asha (now deceased) came to her parental place, each time there was a demand of cash. The accused appellant No.1 harassed the deceased by asking her to bring cash. Organphosphorous was found in viscera examination, thus, death of Smt. Asha occurred other than under normal circumstances. It is established from the deposition of the parents of the deceased that Asha was subjected to cruelty by her husband (appellant No.1- Madanlal) for or in connection with demand of dowry and she died within short span of five months from the date the marriage took place. 24. Section 304-B IPC reads as under; "304B-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. Explanation.-For the purpose of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life." 25. In view of above discussion, the appellant No.1- Madan Lal is convicted and sentenced for the offence under section 304B IPC instead of Section 302 IPC read with section 201 IPC and the finding of conviction of appellant No.2 for the offence under section 201 IPC is set aside and he is acquitted for the charge framed against him under section 201 IPC. 26. 26. In the result, the appeal of the appellant No.1- Madanlal is partly allowed and in-stead of convicting and sentencing him for the offences under sections 302 IPC and 201 IPC, he is convicted and sentenced for the offence under section 304-B IPC and taking note of the facts and circumstances of the case for the offence under section 304B IPC, he is sentenced to ten years rigorous imprisonment with fine of Rs.10,000/- and in default of payment of fine he shall further undergo six months rigorous imprisonment. 27. Accordingly, the appeal qua appellant No.2 Kanhaiya Lal is allowed. Impugned judgment /order dated 03.07.2013 passed by the trial court are set aside. Consequently, appellant No.2 is acquitted of the charge framed against him under section 201 IPC. 28. In view of the provisions of section 437A Cr.P.C. appellant No.2 Kanhaiya Lal s/o Shri Birdhi Chand is directed to furnish a personal bond in the sum of Rs.25,000/-, and a surety in the like amount, before the Registrar (Judicial) of this Court, which shall be effective for a period of six months, with stipulation that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellant no.2, on receipt of notice thereof, shall appear before the Supreme Court.