JUDGMENT : R.P. DHOLARIA, J. 1. Criminal Appeal No.1373 of 2014 is preferred by Yogendrasinh Mahendrapalsinh Bhadoriya and two others – original accused against the judgment and order dated 24.11.2014 passed by learned 2nd Additional Sessions Judge, Ahmedabad (Rural) in Sessions Case No.162 of 2011 whereby the appellants accused have been convicted for the offence under section 498-A read with section 114 of IPC and ordered to undergo rigorous imprisonment for three years and to pay fine of Rs.1000/-, in default, to undergo simple imprisonment for three days, the appellants accused have been convicted for the offence under section 304(B) read with section 114 of IPC and ordered to undergo rigorous imprisonment for seven years and the appellants accused have been convicted for the offence under sections 3 and 7 of the Dowry Prohibition Act and ordered to undergo rigorous imprisonment for five years and to pay fine of Rs.1000/-, in default, to undergo simple imprisonment for three days, whereas Criminal Appeal No.1461 of 2014 has been preferred by Ajaysinh Yogendrasinh Bhadoriya against the above referred impugned judgment and order. 2. As both the aforesaid appeals are arising out of the impugned judgment and order passed by learned trial Court and with the consent of learned advocates for the parties, both the aforesaid appeals are being disposed of by this common judgment and order. 3. The complaint came to be lodged against the accused for the offences under sections 498-A, 304(B) and 114 of Indian Penal Code and sections 3 and 7 of the Dowry Prohibition Act. 4. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the charge-sheet against the accused. The charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried. 5. In order to bring home the guilt, the prosecution has examined witnesses and also produced documentary evidences. 6. At the end of the trial, after recording the statements of the accused under section 313 of the Criminal Procedure Code, 1973 and hearing the arguments on behalf of the prosecution and the defence, learned trial Court delivered the judgment and order, as stated above. 7. At the outset, Mr. 6. At the end of the trial, after recording the statements of the accused under section 313 of the Criminal Procedure Code, 1973 and hearing the arguments on behalf of the prosecution and the defence, learned trial Court delivered the judgment and order, as stated above. 7. At the outset, Mr. Lakhani, learned senior advocate has pointed out that appellant No.2 – Binaben @ Munniben w/o Yogendrasinh Bhadoriya in Criminal Appeal No.1373 of 2014 has passed away on 9.4.2018 and therefore, appeal qua against her stands abated. 8. Mr. Lakhani, learned senior advocate for the appellants – original accused has taken this Court through the entire judgment and record, read over the evidence of all the witnesses who had been examined by the prosecution and argued that place of incident in question is nearby the railway track where the incident was alleged to have taken place in the early morning at 6.00 O’clock on 25.5.2011 wherein the dead body of deceased Saraswati was found over the railway track in mutilated condition and thereafter, noting the same, the investigating agency initially registered the offence as accidental death case No.47 of 2011 and upon lodging the complaint filed by the complainant on 27.5.2011, investigation was undertaken accordingly. Learned senior advocate pointed out that the prosecution miserably failed to establish in the present case as to whether the death of deceased Saraswati was suicidal or accidental and even if as charged by the prosecution to the accused that the deceased was harassed and treated with cruelty, due to which, she took suicidal act, in that case, nothing is emerging from the Record and Proceedings that she took extreme step of committing suicide either by any oral evidence or even any circumstantial evidence or documentary evidence indicating that she left the home for committing suicide. He submitted that another story is also revealing that she used to go for answering call of nature in the open area nearby the house of the deceased by crossing the railway track, due to which, possibility of accidental death also could not be ruled out. He submitted that another story is also revealing that she used to go for answering call of nature in the open area nearby the house of the deceased by crossing the railway track, due to which, possibility of accidental death also could not be ruled out. He further pointed out that there was short span of two years during which period, deceased Saraswati stayed for about six months with the accused at Ahmedabad as the deceased and accused are hailing from the Uttar Pradesh and their marriage was solemnized at Itawa, Uttar Pradesh and during which period, at the time of marriage, as per the customs and usage, parents of the deceased also given cash as well as ornaments and other household articles as dowry and thereafter, demand was raised for Maruti Alto car and that fact is also revealing from the complaint itself; that issue was raised for about six months prior to the death of deceased Saraswati and for about last six months, she was residing at the parental home and thereafter she was brought to matrimonial home and she resided for five days thereafter only and the prosecution failed to establish that during five days, there was any sort of harassment or she was treated with cruelty for demand of dowry which prompted her or led her to commit suicide for non-fulfilling demand of dowry. He further submitted that neither the prosecution witness has deposed that due to non-fulfilling demand of dowry for Alto car, she decided to commit suicide and as a result thereof, she committed suicide nor any other evidence is indicating the same. He submitted that the Record and Proceedings also clearly indicate that initially for about two days, it was investigated as accidental death and as admitted by the Investigating Officer that neighbour has clearly stated that there was no ill-treatment or she was unhappy at the matrimonial home, but soonafter lodging complaint, the investigating agency as if the incident in question has happened due to demand of dowry without investigating as to whether she has committed suicide or her death was suicidal, entire chargesheet has been filed. In view of the aforesaid factual scenario, in support of his submissions, Mr.Lakhani, learned senior advocate has placed reliance on the decision in the case of Bakshish Ram and another Vs. State of Punjab, reported in AIR 2013 SC 1484 . 9. Mr. In view of the aforesaid factual scenario, in support of his submissions, Mr.Lakhani, learned senior advocate has placed reliance on the decision in the case of Bakshish Ram and another Vs. State of Punjab, reported in AIR 2013 SC 1484 . 9. Mr. Lakhani, learned senior advocate further argued that none of the witnesses have deposed that deceased Saraswati had made any manifestation before them that she has been treated with cruelty by the accused and in consequence whereof, she would take extreme step of committing suicide nor her dying declaration or suicide note is available on record and therefore, only decisive evidence of the complainant is available on record who is uncle of deceased Saraswati wherein the complainant has made allegation that after the marriage, the accused raised demand of Alto car and for non-fulfilling, she was harassed and treated with cruelty and none of the witnesses or even the complainant had given any detail as regards to any sort of harassment or as to how, she was treated with cruelty. According to the submission of Mr. Lakhani, even if it may be believed to be true, then also in absence of any primary evidence, as held by this Court in the case of State of Gujarat Vs. Bharatbhai Balubhai Lad and others, reported in 2006 (1) GLR 514 , such statement or evidence is not admissible in the evidence as the status of such evidence remains to be hearsay only. 10. Mr. Lakhani, learned senior advocate has further pointed out that learned trial Court, while answering the points of determination, presumed that death is suicidal and believing the aforesaid nature of solitary evidence of the complainant of demand of dowry and death occurred within a period of two years from the date of marriage, wrongfully convicted the accused which deserves to be quashed and set aside, as such. 11. On the other-hand, Ms. H.B. Punani, learned APP has supported the judgment rendered by learned trial Court so far as it relates to conviction of the appellants. She submitted that this is a fit case wherein learned trial Court has considered voluminous evidence in its proper perspective and rightly convicted the accused. She submitted that finding recorded by learned trial Court is based upon the concrete and clinching evidence and therefore, punishment inflicted upon the accused does not call for any interference. She submitted that this is a fit case wherein learned trial Court has considered voluminous evidence in its proper perspective and rightly convicted the accused. She submitted that finding recorded by learned trial Court is based upon the concrete and clinching evidence and therefore, punishment inflicted upon the accused does not call for any interference. She further submitted that evidence on record is sufficient to link the accused with the crime in question. She submitted that while answering the points of determination, two accused i.e. sister-in-law and brother-in-law of the deceased were found not guilty also and rightly appreciated the evidence in accordance with law. She further submitted that deceased Saraswati was brought at the matrimonial home soon before five days and her dead body was found over the railway track is the clear result of ill-treatment and harassment meted out by the accused and learned trial Court has rightly believed so and the accused are rightly convicted for the same which calls for no interference. 12. This Court has heard Mr. Lakhani, learned senior advocate for the appellants - accused and Ms. Punani, learned APP for the State. 13. This Court has also gone through the Record and Proceedings. Perused the impugned judgment and oral as well as documentary evidence on record. 14. As per the prosecution case, deceased Saraswati got married with accused Ajaysing on 27.4.2009 in the State of Uttar Pradesh and at that time, as per the custom and usage, Rs.5 lacs cash and household articles as well as ornaments were presented and thereafter while residing with the accused, the accused demanded Alto car and for non-fulfilling of such demand, they used to harass her and treated her with cruelty, due to which, on 25.5.2011 in the early morning, her dead body was found over the railway track in mutilating condition and thereby the accused committed the offence punishable under sections 498-A, 304-B read with section 114 of Indian Penal Code as well as sections 3 and 7 of the Dowry Prohibition Act. 15. PW 1 – Avedhashsinh Rathod – complainant and uncle of deceased Saraswati has deposed that deceased Saraswati got married with the accused Ajaysinh on 27.4.2009 and thereafter they stayed for about some days in the State of Uttar Pradesh and thereafter, they settled at Ahmedabad and residing with the accused – her husband for about six months. 15. PW 1 – Avedhashsinh Rathod – complainant and uncle of deceased Saraswati has deposed that deceased Saraswati got married with the accused Ajaysinh on 27.4.2009 and thereafter they stayed for about some days in the State of Uttar Pradesh and thereafter, they settled at Ahmedabad and residing with the accused – her husband for about six months. He deposed that at the time of marriage, deceased Saraswati was presented with cash, ornaments and household items etc. He also deposed that her sister-in-law as well as brother-in-law were not residing with the accused husband. He deposed that after the marriage, demand was raised for Maruti Alto car which he refused to hand over, due to which, the accused were ill-treating her. The said fact came to be appraised to the complainant by deceased Saraswati telephonically, due to which, he took her back to the parental home six months prior to the incident and thereafter for about 5-6 days prior to the incident, the accused took her at the matrimonial home after giving undertaking that they would not demand Alto car. In the cross examination of the witness, it is revealing that the marriage was arranged by the parents and they were not allowing meeting prior thereto. In the cross-examination, improvement as regards to the fact that on 24.5.2011 the complainant called the deceased and as if she told regarding demand of Alto car and accused were harassing her. That portion, the witness improved upon during the course of his testimony was brought on record. 16. The prosecution also examined PW 2 – Achitsinh Chauhan, PW 3 – Rajkishorsinh, PW 4 – Gaytridevi Bhadoriya and PW 5 – Grispalsinh who were parents as well as near relatives. They have deposed in the parallel line in which the complainant has deposed. Their evidence is also in the nature of hearsay evidence. 17. PW 6 – Dr. Hetal Patel – Medical Officer, Civil Hospital, Ahmedabad who in the panel of Dr. Bhavin Shah carried out autopsy over the dead body of deceased Saraswati and noticed various injuries over her person which were in the nature of mutilating various parts of the body and ultimately, they have opined that if any person dashes with the train, then such sort of injuries would occur. Bhavin Shah carried out autopsy over the dead body of deceased Saraswati and noticed various injuries over her person which were in the nature of mutilating various parts of the body and ultimately, they have opined that if any person dashes with the train, then such sort of injuries would occur. In the cross-examination, the witness has admitted that they cannot opine as to whether viewing the injuries over the person of the deceased, the same are accidental or suicidal. 18. PW 10 – Jagdishbhai Katara, ACP “L” Division deposed that he investigated the crime in question primarily, also recorded the complaint, also sent muddamal and obtained report from FSL. In the cross examination, the witness has admitted that he also recorded the statement of the neighbour. He also admitted that during primary investigation, incident was found to be accidental one and upon lodgment of complaint, he investigated the crime. 19. PW 11 – Bhagwanbhai Der, Police Inspector who has also carried out part of the investigation and filed the charge-sheet. In the cross examination, the witness has admitted that neighbours whose statements were recorded during the course of investigation have clearly stated that there was no harassment to deceased Saraswati from the accused and they were happily residing together. He also admitted that he had not obtained any call details for ascertaining conversation between the deceased and the complainant or any other near relative. 20. On overall evaluation of the aforesaid evidence on record, indisputably, marriage span is merely of two years. The accused as well as deceased Saraswati were hailing from the State of Uttar Pradesh; their marriage was solemnized; they settled at Ahmedabad and were residing at Tragad, Sabarmati nearby railway track. Deceased Saraswati, in all, stayed for about six months at the matrimonial home and by and large, she stayed at the matrimonial home prior to the incident in question, she was at the parental home for about six months. As per the case of the prosecution, demand for Alto car was raised from the complainant and the complainant refused and a result thereof, the accused were harassing her and ill-treating deceased Saraswati. None of the witnesses had given any sort of detail as regard as to how they were harassed and what sort of ill-treatment they have meted out to the deceased. Similarly, as admitted by them, no such complaint was made. None of the witnesses had given any sort of detail as regard as to how they were harassed and what sort of ill-treatment they have meted out to the deceased. Similarly, as admitted by them, no such complaint was made. Except the present FIR lodged as regards to the incident, nothing is revealing that the deceased had ever made any manifestation either before her near relative or before neighbour or before anybody indicating that due to harassment, she had decided to commit suicide due to inducement thereof from the accused nor even she made any manifestation that she was committing suicide. Her dead body was found from the railway track nearby her house in the early morning at about 6.00 O’clock. Thereafter, her dead body was found. The prosecution has not produced any evidence to indicate that she was to commit suicide or she dashed with running train accidentally. 21. On overall appreciation of the documentary evidence in the nature of panchnama of scene of offence, inquest panchnama as well as oral evidence and the evidence of the Doctor who carried out autopsy, possibility of her accidental death could not be ruled out. The allegation as regards to harassment and subjecting deceased Saraswati to cruelty or non-fulfillment of demand as regards to Alto car is also hearsay in nature. 22. In view of the aforesaid nature of evidence, the decision rendered by the Honourable Apex Court in the case of Bakshish Ram (supra) is squarely applicable to the facts of the present case. Paragraph 13 of the said decision in the case of Bakshish Ram (supra) reads as under : “13. As discussed above, a perusal of Section 113B of the Evidence Act and Section 304B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. In other words, the 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 prosecution is obliged to show that soon before the occurrence, there was cruelty or harassment and only in that case presumption operates. As observed earlier, if the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence. The prosecution is obliged to show that soon before the occurrence, there was cruelty or harassment and only in that case presumption operates. As observed earlier, if the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence. In the case on hand, admittedly, the prosecution heavily relied on the only evidence of Sibo (PW-2) mother of the deceased which, according to us, is a hearsay, in any event, a very general and vague statement which is not sufficient to attract the above provisions. In such circumstances, as argued by the learned counsel for the appellants, accidental death cannot be ruled out.” 23. In view of the aforesaid nature of evidence and that the prosecution has miserably failed to establish that soon before the death, the deceased was subjected to harassment or meted out with the cruelty by the accused in connection with the demand of Alto car and therefore, this Court is of the considered opinion that learned trial Court has wrongfully convicted the present appellants and judgment of conviction recorded by learned trial Court is not sustainable for want of non-establishment of her death as suicidal. 24. For the reasons recorded above, Criminal Appeals succeed and the same are allowed. The impugned judgment and order dated 24.11.2014 passed by learned 2nd Additional Sessions Judge, Ahmedabad (Rural) in Sessions Case No.162 of 2011 is quashed and set aside. The appellants accused are acquitted of the charges levelled against them. The appellants accused be set at liberty if not required in any other offence. Bail bond, if any, stands cancelled. Fine, if paid, be refunded. Record & Proceedings, if any, be sent back to the trial Court concerned forthwith.