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2021 DIGILAW 1198 (ALL)

Amit Kumar v. State of U. P.

2021-10-06

AJAI TYAGI

body2021
JUDGMENT : 1. This appeal has been preferred against the judgment and order dated 06.04.2016 (State Vs. Amit Kumar and others) arising out of Case Crime No.655A of 2012, under Sections 498A, 304 B of IPC and Section 4 Dowry Prohibition Act, 1961, Police Station-Khurja Nagar, District-Bulandshahar, by which learned trial court convicted only appellant-Amit and sentenced him for two years under Section 498A IPC with fine of Rs.5,000/-, ten years under Section 304 B and one year imprisonment under Section 4 Dowry Prohibition Act with fine of Rs.2,000/-. 2. Brief facts of this case are that Ravi, the informant, is the brother of the deceased. He moved an application under Section 156(3) Cr.P.C. in the Court of Magistrate with the averment that her sister Pooja was married to Amit s/o Bharat Singh on 24.04.2012, who is resident of village Akbarpur, Police Station-Sasani, District-Hathras and gave the dowry according to their financial capacity. A Pulsar motorcycle was also given in the marriage but her in-laws including Amit, his father Bharat Singh, his mother Sharada, his uncle Charan Singh, his brother Manoj and one Pinki were not happy with the dowry given in the marriage and they also started demand of a car as additional dowry. They used to torture Pooja for not fulfilment of the demand of additional dowry. Pooja used to tell the fact regarding the demand of additional dowry and torture for not fulfilling the demand. Parental family members of Pooja tried to make them understand but of no avail. On 13.08.2012 at about 6:00 pm Pooja made a phone call to her brother Ajay and said that Amit and her in-laws were demanding a car and they took her by force to village Akbarpur from Delhi and any untoward incident might take place. The above mentioned persons in connivance with unknown driver of vehicle No. UP-78 BT 0879 have murdered Pooja at about 10:00 pm on 13.08.2012 and have lodged a fake first information report of accident in PS-Khurja Nagar. On coming to know about this incident, the informant went to PS-Khurja, District-Bulandshahr and tried to give a written report but the police refused to receive the report. It has come to the knowledge of the informant that in the above accident neither Amit has sustained any injury nor his motorcycle was damaged. Therefore, they have all killed Pooja by hatching a conspiracy with unknown truck driver. It has come to the knowledge of the informant that in the above accident neither Amit has sustained any injury nor his motorcycle was damaged. Therefore, they have all killed Pooja by hatching a conspiracy with unknown truck driver. 3. Peculiar facts of this case are that before lodging the aforesaid FIR through application 156(3) Cr.P.C., initially first information report was lodged by Charan Singh, who is uncle of appellant-Amit, having Case Crime No.655 of 2012, under Section 279, 304A and 427 IPC at Police Station Khurja, District-Bulandshahar against the truck driver of truck No.UP-78 BT 0879 and after investigation, charge sheet was prepared against the aforesaid truck driver Somnath Vishwakarma, under Section 279, 304A and 427 IPC but this charge sheet was cancelled by Senior Superintendent of Police, before submission in court and further another charge sheet was prepared and submitted in the concerned court against Amit, Bharat Singh, Smt. Sharada, Charan Singh, Manoj and Pinki, under Section 498A, 304B IPC and 3/4 Dowry Prohibition Act, 1961. The above charge sheets were merged and taken together by the learned Magistrate. 4. Charges were framed against the aforesaid accused persons, under Sections 498A and 304B IPC and under Section 3 of Dowry Prohibition Act, 1961. After completion of trial, learned trial court convicted and sentenced only appellant Amit under Section 498A, 304B IPC and Section 4 of Dowry Prohibition Act and acquitted rest of the accused persons and hence this appeal. 5. Heard Shri Rajiv Lochan Shukla, learned counsel for the appellant and Shri Arun Singh, learned AGA for the State. 6. Learned counsel for the appellant submitted that first information report was lodged by Charan Singh regarding the accident of appellant with truck No.UP 78 BT 0879. It is submitted that after completion of the investigation it was found by the investigating officer that it was a case of accident simpliciter and charge sheet under Section 304A IPC was prepared, which was cancelled by the Senior Superintendent of Police. Learned counsel for the appellant argued that it was accidental death and it had nothing to do with any demand of dowry and torture for non-fulfillment of demand of additional dowry. 7. Learned counsel for the appellant next submitted that it was a case of prosecution that appellant hatched a conspiracy with the truck driver and got his wife Pooja murdered in connivance thereof. 7. Learned counsel for the appellant next submitted that it was a case of prosecution that appellant hatched a conspiracy with the truck driver and got his wife Pooja murdered in connivance thereof. But, truck driver was not prosecuted and no charge sheet was submitted containing offence under Section 120B of IPC. No trial of any accused persons was conducted for the offence of conspiracy. It is also submitted that it is interesting that learned trial court acquitted all the accused persons except appellant and no cross appeal against acquittal is filed by prosecution, it means that acquittal of accused persons has become final. In such a situation, when there was no trial regarding the offence of conspiracy and except appellant all other accused persons have been acquitted by the trial court then, the prosecution story of conspiracy in connivance with truck driver itself becomes false. 8. Learned counsel for the appellant argued that Dr. Preetam Singh conducted the postmortem of deceased Pooja and prepared postmortem report. He was examined as PW-4. Learned counsel for the appellant submitted that in fact at the place of occurrence, Amit was driving the motorcycle and Pooja was sitting on back seat and a truck coming from opposite side crossed the motorcycle from very thin distance and due to air pressure Pooja fell down and sustained injury on her head. Learned counsel for the appellant argued that this suggestion was put forth before Dr. Preetam Singh (PW4) in his cross-examination and he agreed to this suggestion. Learned counsel submitted that doctor, who is an expert in medical science, has opined that such type of fatal injury can be sustained by a lady if she is sitting on the back seat of the motorcycle while a truck crosses the motorcycle. Since, the doctor has agreed to this suggestion, the appellant has discharged its burden of rebutting the presumption raised against appellant under Section 113B of Indian Evidence Act. Learned counsel for the appellant also submitted that Senior Superintendent of Police, who cancelled the charge sheet of the accident, namely, Gulab Singh is produced by appellant in his defence as DW2. His statement also shows that charge sheet of accident was cancelled by him on the report of investigating officer of Case Crime No.655A of 2012. Learned counsel for the appellant also submitted that Senior Superintendent of Police, who cancelled the charge sheet of the accident, namely, Gulab Singh is produced by appellant in his defence as DW2. His statement also shows that charge sheet of accident was cancelled by him on the report of investigating officer of Case Crime No.655A of 2012. But, on the fact it is proved that investigating officer of Case Crime No.655 of 2012 found no case of murder or conspiracy in this case. 9. It is also next submitted that cremation of the deceased took place with the consent of her family members and dead body was given in Surpurdagiof her family members. 10. It is argued by learned counsel for the appellant that PW1-Ravi and PW2-Ajay both are brothers of the deceased. PW1 is informant. It is said by both the witnesses that Pooja made a phone call at 6:00 pm to her brother Ajay from Delhi that so-called accused persons were demanding car and beating her and taking her from Delhi to Village Akbarpur with the intention of killing her. But, in cross-examination witnesses have not supported their version of examination-in-chief. It is said by theses witnesses that Pooja told that five other accused persons were coming on two motorcycle behind them. But they also have stated that Pooja made this phone call from her house in Delhi. PW1 and PW2 have made contrary statements. PW1informant Ravi has said that phone call was made by Pooja on phone of Ajay who had left his phone at home and he informed him in night when he returned to the home. In the meantime, he did nothing. It is also evident that four brothers of Pooja used to reside in Delhi. They were also not informed by PW1-Ravi regarding phone call who could be the nearest persons to Pooja. This conduct of witnesses is quite unnatural. 11. Learned counsel for the appellant next argued that there was no question of demanding car as additional dowry because it is admitted by PW1 and PW2 that the father of the appellant was hawker on a gas agency and appellant-Amit himself used to work on a gas agency for booking and supplying the gas cylinders. It is also in the evidence that appellant used to get Rs.5,000/-per month as salary from the gas agency. It is also in the evidence that appellant used to get Rs.5,000/-per month as salary from the gas agency. Therefore, appellant and his family were not of such a good financial condition that they could even think of demanding the car in additional dowry. 12. Learned counsel for the appellant also submitted that there is no evidence on record that soon before death of the deceased she was subjected to any cruelty or harassment in connection with demand of additional dowry. No call-detail is produced by the prosecution to substantiate the factum of phone call made by Pooja at 6:00 pm on 13.08.2012. It is also pointed out that PW2-Ajay has stated in his statement that he was making statement in court for the very first time, therefore, he has denied his statement under Section 161 Cr.P.C. also PW1 and 2 are wholly unreliable witnesses. Appellant is languishing in jail for the past five years without any evidence on record. Learned trial court has wrongly convicted and sentenced the appellant. Hence, appeal may be allowed. 13. Learned AGA opposed the arguments made on behalf of the appellant and submitted that ante mortem injury in postmortem indicates that such type of injury cannot be sustained by falling from motorcycle only and as far as the first FIR is concerned, it was lodged by co-accused Charan Singh but he was not the eye-witness of so-called accident as alleged by the defence. It is also submitted by learned AGA that it is mentioned in inquest report that inquest proceedings took place in district hospital Khurja. Learned AGA submitted that the death of deceased Pooja cannot be accidental death. PW1 and PW2 have fully supported the prosecution case. When this case was not found of accident, only then the investigating officer of Case Crime No.655A of 2012 sent a report to SSP, Bulandshahr, and after being satisfied with the report of I.O., the S.S.P. cancelled the charge sheet of Case Crime No.655 of 2012. Demand of additional dowry, harassment and torture of Pooja for non-fulfillment of above said demand are fully proved by statements of PW1 and PW2 and since Pooja made a phone call on the same day of her death at about 6:00 pm, therefore, it is also proved that soon before her death, she was subjected to cruelty in connection with demand of additional dowry. Therefore, learned trial court rightly convicted the appellant and sentenced him. Hence, appeal may be dismissed. 14. In this case, two FIRs were lodged. One by Charan Singh, Case Crime No.655 of 2012 pertaining to the fact of accident and second is Case Crime No.655A of 2012 by Ravi, brother of deceased pertaining to accidental murder of Pooja. But, prosecution has finally set up a case as per the first information report lodged by Ravi through application under Section 156(3) Cr.P.C. On the basis this FIR, charge sheet was submitted under Section 498A, 304B IPC and Section 3/4 Dowry Prohibition Act and appellant was put on trial. Trial court convicted and sentenced the appellant as aforesaid under Section 304B IPC, trial court drew the presumption of Section 113B of Indian Evidence Act which is quoted here-in-below for ready reference:- “Section 113B in The Indian Evidence Act, 1872 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).” 15. Hence to draw the legal presumption as envisaged by Section 113 of Indian Evidence Act, it is mandatory for prosecution to show that “soon before death,” deceased was subjected to cruelty or harassment for or in connection with demand of dowry. 16. In G.V. Siddaramesh Vs. State of Karnataka (2010) 3 SCC 152 , it is held by the Hon’ble Apex Court that there must be material to show that soon before the death of woman, such woman was subjected to cruelty or harassment for or in connection with demand of dowry, then only a presumption can be drawn that a person has committed the dowry death of a woman. 17. In Devendra Vs. 17. In Devendra Vs. State of Haryana (2010) 10 SCC 763 also, the Hon’ble Apex Court has held that Section 113B read with the Act (Indian Evidence Act) would mean that unless and until proved otherwise, the court shall hold that a person has caused dowry death of a woman if it is established before the court that soon before her death such woman has been by such person subjected to cruelty or harassment for or in connection with any demand of dowry. 18. To show that soon before her death, deceased Pooja was subjected to cruelty or harassment for or in connection with demand of dowry, the prosecution has produced PW1-Ravi and PW2-Ajay. Both are brothers of the deceased and it is said by them that on the fateful day, i.e., 13.08.2012 at 6:00 pm, a phone call was made by Pooja on the phone of PW2- Ajay, who had left the phone at home and this phone call was received by informant PW1- Ravi in which Pooja told him that appellant and other co-accused persons were demanding car and beating her and taking her to village Akbarpur from Delhi with intention to kill her. PW1 Ravi has stated in his examination-in-chief that accused persons have killed his sister Pooja with the conspiracy for not meeting out the demand of car as additional dowry and for hiding their crime the murder of Pooja has been shown as an accident. But it is not stated by PW1 how Pooja was killed if it was not an accident. It was burden on prosecution witnesses to show how otherwise the death was caused if accident did not take place because prosecution witnesses PW1 and PW2 have categorically said in their statements that neither the appellant got any injury in accident nor the motorcycle had got any scratch in the accident. 19. In his application under Section 156(3) Cr.P.C. informant Ravi has stated that:- ^^izkFkhZ }kjk mijksDr ?kVuk ds ckjs es tkudkjh djus ij irk pyk fd mijksDr ,DlhMs+V es vfHk;qDr dks dksbZ pksV fdlh izdkj dh ugh gS vkSj u gh eksVjlkbZfdy dgha ls {kfrxzLr gqbZ gSA dsoy vfer ds ihNs cSBh iwtk dh ,DlhMsV es e`R;q gqbZ gSA mijksDr ?kVuk ,d lksph le>h ;kstuk ds rgr mijksDr eqfYTkekuks us vKkr Vªd MªkbZoj ds lkFk feydj dkfjr dh gSA^^ 20. In this way at one hand, the prosecution has tried to establish the case that death of Pooja was result of the accident in connivance and conspiracy of appellant with truck driver, but on the other hand, prosecution has also taken the version that in so-called accident neither appellant got sustained any injury nor motorcycle was damaged even a bit. On this basis, prosecution says that it was a murder. In this way, it looks that prosecution caused shadow on the factum of accident how it took place and from which source it has come to know the factum of conspiracy. 21. Prosecution is not firmly standing on its feet. It was a burden on the shoulder of the prosecution witnesses to show how actually otherwise the death of Pooja took place if it was not a case of an accident. The Court can hardly believe on the fact that such type of accident can be caused out of conspiracy in which the person driving the motorcycle did not get any injury and even motorcycle is not damaged even a bit and the lady sitting behind the motorcycle sustained fatal injuries and died on the spot. If prosecution wants to establish that accident was the result of conspiracy with truck driver, then prosecution witnesses were also to show the element of conspiracy. 22. PW1-Ravi has stated in his statement that Pooja made a phone call and said that Amit was taking her on Pulsar motorcycle to the village. Apart from this, two other motorcycles were also there on which other accused persons were coming from behind. It is also specifically stated by this witness that except the phone call of his sister, he found no other evidence by which he could come to know that except Amit, five other persons were also coming on motorcycles, but PW1Ravi has not stated this fact to the investigating officer in his statement under Section 161 Cr.P.C. Thus, it is proved that this statement by PW1 is made for the very first time in the trial court. PW2-Ajay has also stated in his statement that on 13.08.2012, at about 6:00 pm, deceased Pooja made a phone call on his phone stating that all the accused persons, out of conspiracy, were taking her to village Akbarpur with intention to kill her and soon thereafter the appellant along with other accused persons started journey on motorcycle by taking his sister on motorcycle and killed her at Nehrupur Chungi. 23. Therefore, the above statements of both the witnesses PW1 and PW2 show that they have categorically said that appellant and deceased Pooja were on one motorcycle and other co-accused persons were on two other motorcycles. PW1 and PW2 could only get this information if phone would have been made by the deceased Pooja while she was on the way on the motorcycle driven by the appellant, but PW1 Ravi has specifically stated in his cross-examination that Pooja had made a phone call before departure from Delhi. PW2 also has stated in his cross-examination that:- ^^iwtk us vius llqjky ds ?kj ls Qksu fd;k FkkA iwtk us crk;k Fkk fd lc yksx uhps gSA eS Åij dejs ls cksy jgh gwaA eSus vius cM+s HkkbZ jfo dks jkr ds 11&11-30 cts tc ?kj vk, rc eSus mudks ;g ckr crk;h Fkh fd iwtk dk 'kke 6 cts VsfyQksu vk;kA^^ 24. Hence, both the PW1 and PW2 have established that phone call was made by the deceased from the house in Delhi before her departure, then how could Pooja tell them that other co-accused were also coming behind on two other motorcycles. Although, the co-accused persons were acquitted by the trial court but there is question of credibility of evidence of PW1 and PW2. Such type of above statements of these witnesses put a big question mark on their credibility. Moreover, no call-detail report was produced by the prosecution regarding phone call of deceased Pooja at 6:00 pm to her brother Ajay. In his statement Ajay has given his mobile number and also of the deceased Pooja mobile number, but the prosecution has not produced any call-details of these two mobile numbers. It is also very strange and unnatural on behalf of PW1-Ravi, that he did not disclose regarding the version of phone call made by Pooja to her four brothers, who were residing in Delhi. It is also very strange and unnatural on behalf of PW1-Ravi, that he did not disclose regarding the version of phone call made by Pooja to her four brothers, who were residing in Delhi. These brothers were very near to Pooja and the witnesses have very lightly stated that they could not think of it. 25. With the above discussion, this Court reaches to the conclusions that statements of PW1 and PW2, the only witnesses of fact, have not at all any reliability regarding the phone call made by Pooja. It is not at all proved by their statements that any such phone call was made by Pooja to her brother at 6:00 pm on 13.08.2012 as said by the prosecution because in this regard the prosecution evidence is wholly unreliable and when the above said phone call is not proved, then it is also not proved that appellant was taking Pooja from Delhi to village Akbarpur in District Bulandshahr in order to kill her because the above said alleged phone call, which is not proved as discussed above, was the only source of information to PW1 and PW2. 26. Learned trial court has drawn presumption under Section 113B of Indian Evidence Act only against the appellant and not against all other accused persons on the same evidence of alleged phone call. Trial court has not mentioned how it reached to the conclusion of drawing presumption of Section 113B of Evidence Act only against the appellant and not against other co-accused persons. It means that the trial court has relied on a portion of the phone call and disbelieved the remaining portion of the same phone call. Trial court has only said that PW1 Ravi and PW2 Ajay have not stated regarding any specific role of other co-accused persons except appellant Amit and on the basis of which it is opined by trial court that presumption under Section 113B Indian Evidence Act is drawn against accused Amit and it is not drawn against other co-accused persons. Trial court has not mentioned even a single word what other evidence was found against the husband which was not found against other co-accused persons. 27. Application under Section 156(3) Cr.P.C. was moved by informant Ravi after a long delay of 14 days of the occurrence. Trial court has not mentioned even a single word what other evidence was found against the husband which was not found against other co-accused persons. 27. Application under Section 156(3) Cr.P.C. was moved by informant Ravi after a long delay of 14 days of the occurrence. If phone call was there, the fact as to why the application was not moved forthwith by the informant, is not explained any where. 28. Hence, in the opinion of this Court evidence of PW1 and PW2 is not at all reliable regarding the phone call made by Pooja at 6:00 pm on 13.08.2012 to her brother. And as except this alleged phone call, there was no other source of information to informant Ravi or his brother Ajay and hence, PW1 and PW2 were not in a position to state that Pooja was subjected to cruelty or harassment soon before her death in connection with demand of additional dowry. It is very interesting to note that as per the prosecution case in application under Section 156(3) Cr.P.C., on the basis of which FIR was lodged, prosecution itself states that accident took place in conspiracy with truck driver. Truck number is also mentioned in the first information report. Inquest report also states that Pooja died due to sustaining injuries in accident and trial court confused on this issue because at one place trial court opined that if it would have been an accident then accused Amit also should have sustained injuries and motorcycle would have been damaged and on the other hand, trial court has drawn presumption against the appellant under Section 113B of Indian Evidence Act on believing the evidence of PW1 and PW2 regarding the alleged killing of Pooja by accident in connivance with the truck driver. 29. Further for the sake of argument, for a while, if it is presumed that presumption of Section 113B of Indian Evidence Act is rightly drawn by the trial court then also the appellant has rebutted this presumption. Accused has three stages during trial to rebut the presumption of Section 113B Indian Evidence Act. 29. Further for the sake of argument, for a while, if it is presumed that presumption of Section 113B of Indian Evidence Act is rightly drawn by the trial court then also the appellant has rebutted this presumption. Accused has three stages during trial to rebut the presumption of Section 113B Indian Evidence Act. First stage is to give suggestion to prosecution witness and put his case before him; second stage is that accused will take his defence when evidence against him will be put under provision of Section 313 Cr.P.C., although, statement under Section 313 Cr.P.C. is not substantive piece of evidence and third stage is to produce defence witnesses. In the case in hand, suggestion was given to PW4 Dr. Preetam Singh, who conducted the postmortem of the deceased, that if a lady is sitting on the motorcycle and truck passes by due to which motorcycle falls then in such type of accident the lady can sustain such injuries, which were sustained by the deceased. Dr. Pretaam Singh PW4 answered in affirmative and opined that in such a situation, the deceased could sustain ante mortem injuries. Suggestions were also given to PW1 Ravi and PW2 Ajay regarding death of deceased in accident. It was stated before PW1 that one Rakesh s/o Raj Pal, who was cousin of appellant Amit Kumar, he was seriously ill on 13.08.2012 and died on 14.08.2012. It is specifically suggested to PW1 that appellant and his wife were going to see Rakesh on 13.08.2012. To this suggestion PW1 showed ignorance but it is said by him that later on he got to know that Rakesh, cousin brother of appellant, was seriously ill on 13.08.2012 and died on 14.08.2012. This factum also co-relates with the situation where accident could happen and in which deceased sustained fatal injuries. It is very much relevant that it is also the prosecution case that deceased Pooja died at near Nehrupur Chungi within the jurisdiction of Police Station Khurja District Bulandshahr. This fact gives strength to the defence taken by the appellant that Pooja died due to simpliciter road accident. Apart from this, it is important that prosecution itself has set up a case of the accident as stated by the complainant Ravi in application under Section 156(3) Cr.P.C. in which even truck No. UP78 BT 0879 is given. This fact gives strength to the defence taken by the appellant that Pooja died due to simpliciter road accident. Apart from this, it is important that prosecution itself has set up a case of the accident as stated by the complainant Ravi in application under Section 156(3) Cr.P.C. in which even truck No. UP78 BT 0879 is given. The version of FIR is that appellant hatched conspiracy with above truck driver and got Pooja murdered but the truck driver was not prosecuted. No charge sheet was filed against truck driver for the offence of criminal conspiracy. Charge sheet against truck driver under Section 279, 304A and 427 IPC in Case Crime No.655 of 2012 was cancelled by Senior Superintendent of Police. Even the appellant or any other accused persons were not charged with the offence of criminal conspiracy. Therefore, prosecution story of murder itself gets falsified and the trial court did not give any finding as to how the deceased was died. Learned trial court has opined that appellant in his statement under Section 313 Cr.P.C. has stated that he was bringing his wife from Delhi to village Akbarpur and all of a sudden he met with an accident with the truck due to which Pooja fell down and died, but no evidence is produced regarding this fact. Learned trial court failed to consider the fact that charge sheet was prepared against the said truck driver pursuant to the FIR of the accident. Nothing more could be shown by the appellant to rebut the presumption when investigating officer of Case Crime No.655 of 2012 reached to the conclusion of accidental death and prepared the charge sheet. DW2 Gulab Singh, who is retired DIG, who had cancelled the charge sheet prepared by the investigating officer in Case Crime No.655 of 2012, has stated in his statement that C.O. was investigating the Case Crime No.655 of 2012 which was registered under Section 304B, 498A IPC. On the basis of his case diary charge sheet was cancelled. Learned trial court has opined regarding the evidence of DW2 that he has only given the evidence regarding cancellation of charge sheet of Case Crime No.655 of 2012. This fact was overlooked by trial court that firstly charge sheet was prepared under Section 304A, 279 and 427 IPC after completion of investigation, although it was cancelled before submission in concerned court. 30. This fact was overlooked by trial court that firstly charge sheet was prepared under Section 304A, 279 and 427 IPC after completion of investigation, although it was cancelled before submission in concerned court. 30. On the basis of above discussion, this Court has reached to the conclusion that prosecution has miserably failed to prove the phone call made by the deceased Pooja at 6:00 pm on 13.08.2012 to her brother as discussed above and in the absence of that phone call there remains no evidence on record to show that the deceased was subjected to cruelty or harassment soon before her death for or in connection with demand of dowry, meaning thereby prosecution has not brought forward any evidence to show that soon before her death deceased was subjected to cruelty. Therefore, trial court erred in drawing the presumption of Section 113B of Indian Evidence Act and in the absence of above presumption, no onus can be shifted on the shoulders of appellant/accused to rebut the presumption. Therefore, the death of deceased Pooja does not fall within the purview of “Dowry Death”. Section 304B IPC reads as under :- Section 304B in The Indian Penal Code 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.” 31. It is provided under Section 304B of IPC that the death of a woman should occur otherwise than under normal circumstances. Prosecution could not prove the death of deceased Pooja “otherwise than normal circumstances”. Moreover, as discussed above, prosecution could not prove that soon before her death, deceased Pooja was subjected to cruelty or harassment for or in connection with demand of dowry. 32. Prosecution could not prove the death of deceased Pooja “otherwise than normal circumstances”. Moreover, as discussed above, prosecution could not prove that soon before her death, deceased Pooja was subjected to cruelty or harassment for or in connection with demand of dowry. 32. With the aforesaid discussion, this Court is of considered opinion that learned trial court has not appreciated the evidence on record in right perspective and wrongly drew the presumption under Section 113B of Indian Evidence Act against the appellant. Prosecution has also failed to prove the death of deceased Pooja as dowry death. Learned trial court has wrongly convicted the appellant for the offences under Section 498A, 304B of IPC and under Section 4 Dowry Prohibition Act, 1961. Hence, appeal is liable to be allowed. 33. This appeal is accordingly, allowed. 34. Conviction of appellant under Sections 498A, 304B IPC and under Section 4 Dowry Prohibition Act, 1961 is hereby set aside and he is acquitted of all charges framed against him. The appellant be released forthwith if not wanted in any other case. 35. Let a copy of this order be sent to concerned court and jail authorities for ensuring necessary compliance.