JUDGMENT : Heard Sri Indra Deo Mishra, learned counsel for the appellant no. 2, Sri Rupak Chaubey, learned A.G.A. for the State and perused the records. 2. The Chief Judicial Magistrate, Allahabad, submitted a report dated 13.07.2018 stating therein that appellant no.1 Smt. Kunwari Devi and appellant no.3 Ram Pratap, have died. So, vide order dated 11.04.2019 appeal against appellant no. 1 Smt. Kunwari Devi and appellant no. 3 Ram Pratap was abated. Thus, the case of appellant no.2 Ram Autar has to be examined only. 3. Challenge in this criminal appeal is the judgment and order dated 20.02.1992 passed by 1st Additional Sessions Judge, Allahabad, in S.T. No. 361 of 1989 (State Vs Ram Baran and others), under Sections 147, 304B/201 I.P.C., P.S.-Naini, District-Allahabad, whereby the learned 1st Additional Sessions Judge, Allahabad, convicted the appellant no. 2 Ram Autar and sentenced him to undergo 7 years R.I., under Section 304-B read with Section 34 of the IPC. 4. Tersely put, the prosecution case is that complainant Mataru Lal lodged an F.I.R. on 25.02.1989 at 12.50 p.m, at P.S.-Naini, District-Allahabad, stating therein that Smt. Bitola, deceased, was his daughter. She was married with accused Ram Baran, two years before this incident. Accused Ram Baran, his father Khelari and brothers of Ram Baran accused Ram Pratap and Ram Autar were unhappy with the victim, because they were demanding a T.V. set in dowry. Some day before the incident, accused persons attempted to kill the victim by causing her burn injuries. The complainant took the victim, to his house and after treatment the victim recovered. Thereafter, accused persons Ram Baran and Khelari assured the complainant that no untoward incident will take place in future. Believing the assurance, he sent his daughter, the deceased to the house of her in-laws about one month before the alleged incident. On 25.02.1989 at about 8.30 a.m. the accused Ram Baran came to the house of the complainant and asked his son Raj Kumar whether the deceased has come to his house. He further told him that the deceased has run away with 3kg. Silver and Rs. 500/-in cash in the previous night. On this, the complainant and his family members searched the victim. They suspected that the accused persons might have killed the deceased. He further told him that the deceased has run away with 3kg. Silver and Rs. 500/-in cash in the previous night. On this, the complainant and his family members searched the victim. They suspected that the accused persons might have killed the deceased. The complainant along with family members went to the village of accused persons and there they found the dead body of the victim Smt. Bitola in a well situated towards east of the village abadi. The complainant further stated in the complaint that accused persons had killed the deceased because he could not give T.V. set in dowry. Accused persons killed the deceased, threw her dead body into the well. At the time of incident the victim was nearly 20 years old. 5. On the written report submitted by complainant Mataru Lal, the case was registered at P.S. Naini, District Allahabad, in Crime No. 79 of 89, under Sections 147, 304-B, 201 IPC, against accused Ram Baran, Ram Pratap, Ram Autar, Khelari and Kunwari Devi, mother of Ram Baran. 6. Investigating officer started investigation and inquest of the deceased Bitola Devi was done by Nayab Tehsildar, Karachana on 25.02.1989. Postmortem of the dead body of the deceased was conducted 27.03.1989 and statement of witnesses under section 161 Cr.P.C. was recorded. After completion of the investigation, investigating officer filed charge sheet against accused-persons namely Ram Baran, Ram Autar, Ram Prasad and Smt. Kuwari. 7. The then Judicial Magistrate-IV, Allahabad, committed the case of accused persons to the court of sessions for trial. The then the 1st Additional Sessions Judge, Allahabad, on 16.01.1990 charged accused Ram Autar, Ram Pratap, Ram Baran and Smt. Kunwari, under Section 147, 304B read with section 149 IPC and 201 IPC. Accused persons denied the charges and claimed to be tried. Prosecution was called to adduce the evidence. 8. Prosecution produced P.W. 1, Mataru Lal, father of the deceased, P.W. 2 Satya Narain Bharti, scribe of the FIR, P.W. 3 Dr. R.B. Singh, who conducted the autopsy on the dead body of the deceased, P.W. 4 Smt. Rania @ Ranno Devi, mother of the deceased Smt. Bitola Devi, P.W. 5 Raj Kumar, brother of the deceased Smt. Bitoal Devi, P.W. 6 S.I. B.D. Singh, P.W. 7 Latif Ullah, Nayab Tehsildar, P.W. 8 Constable Jai Ram Shukla and P.W. 9 Sri Nasir Kamal. 9. 9. After conclusion of the evidence, statement of accused persons under section under Section 313 Cr.P.C. was recorded. Accused Ram Avtar denied the evidence and said that he has been falsely implicated. 10. After hearing the learned counsel for the prosecution and defence, learned lower court convicted the appellants Smt. Kunwari, Ram Autar and Ram Pratap under Section 304-B read with section 34 of the IPC and sentenced them to undergo 7 years R.I. 11. Aggrieved by the aforesaid judgment and order dated 20.02.1992 passed by 1st Additional Session Judge, Allahabad, appellants Kunwari, Ram Autar and Ram Pratap have preferred this appeal before this Hon'ble Court. Appeal was admitted on 25.02.1992. 12. Learned counsel for the appellant no.2 Ram Autar submitted that appellant no.2 Ram Autar, is elder brother of husband of deceased Bitola Devi. There is no evidence of demand of dowry and harassment of the deceased against appellant. Appellant no. 2 was living separately. He has nothing to do with the alleged demand of T.V. set. He could be not beneficiary of T.V. set. There is no evidence against the appellant to convict him under section 304-B IPC. Hence, this appeal should be allowed and the appellant Ram Autar should be acquitted. 13. Per contra, learned A.G.A. countered the above submissions and contended that there is sufficient evidence of demand of dowry against appellant no. 2 Ram Avtar. This is the consistent case of the prosecution that all the appellants were living in one house although they were having two other houses also. The victim was done to death by the appellant no. 2 Ram Avtar along with other co-accused persons, therefore, appeal has no legs to stand and it may be dismissed. 14. Before dwelling in the merits of the appeal provisions of Section 304-B of I.P.C. need mention here which are as follows: “304-B. 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.” 15. In SunilBajajv.StateofM.P.2000(9)SCC417, it has been held by Hon’ble Apex Court that in order to convict an accused for an offence under Section 304-B I.P.C., the following essentials must be satisfied: (1) the death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances: (2) such death must have occurred within 7 years of her marriage; (3) soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband; (4) such cruelty or harassment must be for or in connection with demand of dowry. It is only when the aforementioned ingredients are established by acceptable evidence such death shall be called “dowry death” and such husband or his relative shall be deemed to have caused her death.” 16. Learned A.G.A. submitted that the death of deceased Bitola was due to bodily injury and otherwise than under normal circumstances, I agree with the aforesaid contention of the learned A.G.A. 17. PW3 Dr. R.B. Singh who conducted the post mortem over the dead body of the deceased Bitola found following injuries on her person: 1. Multiple abrasion on left side of face and contusion was present. 2. Ligature mark present on left side face upper 1/3rd beck, placed transversely 26cmx2cm in fractions under big area is abraded and contused. Cloth was inserted in the mouth of the deceased, there was blood on the cloth In the opinion of the doctor, death was caused due to asphyxia which was result of injury no. 2. Injury no. 2 was sufficient in the ordinary course of nature to cause the death. Thus, from the evidence of PW3 Dr. R. B. Singh, it is manifest that death of deceased Bitola was not natural, she died due to bodily injury as mentioned in the post mortem report. Learned counsel for appellant no. 2 Ram Avtar did not dispute the above fact. 18. The deceased Bitola died within seven years of her marriage. Thus, from the evidence of PW3 Dr. R. B. Singh, it is manifest that death of deceased Bitola was not natural, she died due to bodily injury as mentioned in the post mortem report. Learned counsel for appellant no. 2 Ram Avtar did not dispute the above fact. 18. The deceased Bitola died within seven years of her marriage. PW1 Matru, PW4 Rania and PW5 Raj Kumar have given evidence to this effect. This fact was also not disputed by the learned counsel for the appellant no. 2. 19. Learned counsel for the appellant submitted that the appellant Ram Avtar has not demanded anything in dowry. He drew attention of the Court towards the page no. 6 of the paper book, which is a letter written by Ram Baran (husband of the deceased) wherein demand of Rs. 5000/-, Tape recorder, Transistor, Cycle, Utensils and some other house hold goods have been made. Learned counsel for the appellant submitted that demand was made by the husband (Ram Baran) of the deceased only and appellant no. 2 Ram Avtar has nothing to do with the aforesaid demand. 20. PW1 Matru has admitted in his statement, at page no. 26 of the paper book, that two accused persons present in the court did not demand any dowry. He has further stated that except Ram Baran none has demanded dowry from him. Further he has stated that when his daughter comes to his house, she tells about the demand of dowry and beatings. 21. PW2 Satya Narayan has also stated in his cross-examination at page no. 31 of the paper book that Ram Baran used to demand dowry which was opposed by his brothers. He further stated that two accused persons present in the court opposed the demand of dowry. In the opinion of this witness, the deceased Bitola was done to death by her husband, her mother-in-law and her father-in-law. Accused persons present in the court were not involved in the murder of the deceased Bitola. 22. PW4 Smt. Rania @ Ranno Devi who is mother of the deceased Bitola has deposed in page no. 36 of the paper book that accused persons Ram Avtar, Pradeep and their mother did not demand any dowry from her. 23. PW5 Raj Kumar who is brother of the deceased Bitola has stated in his cross-examination at page no. 22. PW4 Smt. Rania @ Ranno Devi who is mother of the deceased Bitola has deposed in page no. 36 of the paper book that accused persons Ram Avtar, Pradeep and their mother did not demand any dowry from her. 23. PW5 Raj Kumar who is brother of the deceased Bitola has stated in his cross-examination at page no. 41 of the paper book that accused persons present in the court and their mother did not demand dowry from him or from his mother and father before him. From the perusal of the letter sent by Ram Baran to his in-laws, which is at page no. 6 of the paper book, it is evident that only and only Ram Baran demanded dowry. Moreover, there is general allegation of demand of dowry and harassment. 24. In case of Kansraj v. State of Punjab 2000 (5) SCC 207 , the Hon’ble Apex Court has held in para no. 5 as follows: “5…….In the light of the evidence in the case we find substance in the submission of the learned counsel for the defence that respondents 3 to 5 were roped in the case only on the ground of being close relations of respondent No.2, the husband of the deceased. For the fault of the husband, the in-laws or the other relations cannot, in all cases, be held to be involved in the demand of dowry. In cases where such accusations are made, the overt acts attributed to persons other than husband are required to be proved beyond reasonable doubt. By mere conjectures and implications such relations cannot be held guilty for the offence relating to dowry deaths. A tendency has, however, developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case.” 25. In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case.” 25. From the perusal of the evidence of PW1 Matru, PW2 Satya Narayan, PW4 Rania & PW5 Raj Kumar, it is clear that there is no specific allegation with regard to demand of dowry or harassment in pursuance of aforesaid demand against appellant No. 2 Ram Avtar. He is the elder brother of the husband of the deceased Bitola so the dictum of Kans Raj (supra) is squarely applicable to the facts of the present case. 26. Learned counsel for the appellant submitted that there is no evidence with regard to soon before the death of deceased Bitola, she was subjected to cruelty or harassment by appellant no. 2 Ram Avtar in connection with demand of dowry. In Sham Lal v. State of Haryana AIR 1997 SC 1873 , the Hon’ble Apex Court has held as follows: “11. It is imperative, for invoking the aforesaid legal presumption, to prove that "soon before her death" she was subjected to such cruelty or harassment. Here, what the prosecution achieved in proving at the most was that there was persisting dispute between the two sides regarding the dowry paid or to be paid, both in kind and in cash, and on account of the failure to meet the demand for dowry, Neelam Rani was taken by her parents to their house about one and a half years before her death. Further evidence is that attempt was made to patch up between the two sides for which a panchayat was held in which it was resolved that she would go back to the nuptial home pursuant to which she was taken by the husband to his house. This happened about ten to fifteen days prior to the occurrence in this case. There is nothing on record to show that she was either treated with cruelty Or harassed with the demand for dowry during the period between her having been taken to the parental home and her tragic end. 12. This happened about ten to fifteen days prior to the occurrence in this case. There is nothing on record to show that she was either treated with cruelty Or harassed with the demand for dowry during the period between her having been taken to the parental home and her tragic end. 12. In the absence of any such evidence it is not permissible to take recourse to the legal presumption envisaged in Section 113-B of the Evidence Act. That rule of evidence is prescribed in law to obviate the prosecution of the difficulty to further prove that the offence was perpetrated by the husband, as then it would be the burden of the accused to rebut the presumption.” 27. So far as the facts of the present case are concerned, prosecution in the F.I.R., has alleged that on the assurance given by Ram Baran and his father, deceased Bitola was sent to her nuptial home before one month of the alleged incident. PW1 Matru has also deposed about the aforesaid fact in the court. 28. During one month before the incident, there is no evidence on file that there was any communication between the deceased and the prosecution witnesses. The deceased was sent to her in-laws house on the assurance of good behaviour by her husband and father-in-law. After coming there to her in-laws house, there is no evidence on record so as to ascertain that the deceased was ill-treated by the appellant no. 2, hence the factum of soon before death is also not established in the present case. 29. Upshot of the above discussion is that the husband, mother-in-law and father-in-law of the deceased Bitola have already died, only appellant no. 2 Ram Avtar is surviving and contesting the appeal. He is the elder brother of the Ram Baran (husband of the deceased) and there is no specific allegation against the appellant no. 2 Ram Avtar regarding demand of dowry and harassment. The alleged letter demanding dowry was written by the husband of the deceased Ram Baran. PW2 Satya Narayan has specifically stated in his cross-examination that appellant no. 2 Ram Avtar used to oppose the alleged demand of dowry by husband (now deceased) of the deceased Bitola. 30. 2 Ram Avtar regarding demand of dowry and harassment. The alleged letter demanding dowry was written by the husband of the deceased Ram Baran. PW2 Satya Narayan has specifically stated in his cross-examination that appellant no. 2 Ram Avtar used to oppose the alleged demand of dowry by husband (now deceased) of the deceased Bitola. 30. It is settled law of the Hon’ble Apex Court that in order to convict an accused for an offence under Section 304-B of I.P.C., prosecution is obliged to establish four ingredients beyond reasonable doubt. So far as the facts of the present case are concerned, prosecution has been able to establish that deceased Bitola died within seven years of her marriage, she died due to bodily injuries or other than normal circumstances but the prosecution has failed to prove the fact that soon before her death deceased Bitola was subjected to cruelty or harassment by appellant no. 2 Ram Avtar in pursuance of demand of dowry. 31. In view of the above facts and circumstances, I am of the considered opinion that appellant no. 2 is entitled to benefit of doubt, accordingly the appeal of the appellant no. 2 Ram Avtar succeeds and deserves to be allowed. 32. Appeal is accordingly, allowed. 33.The judgment and order dated order dated 20.02.1992 passed by 1st Additional Sessions Judge, Allahabad, in S.T. No. 361 of 1989 (State Vs Ram Baran and others), under Sections 147, 304B/201 I.P.C., P.S.-Naini, District-Allahabad, qua the appellant no. 2 Ram Avtar is set-aside. Appellant no. 2 is acquitted of the charges leveled against him. His bail bonds are canceled and sureties are discharged. 34. Copy of this judgment be certified to the court below for compliance. Lower court record be transmitted to the District Court, concerned.