JUDGMENT : PRADEEP KUMAR SRIVASTAVA, J. 1. I have already heard the arguments advanced by Mr. Binod Kumar Dubey, learned counsel for the appellants as well as Mr. Bishambhar Shastri and Mrs. Nehala Sharmin, learned Addl. P.Ps. appearing for the State. 2. Both these criminal appeals are directed against the judgment and order of conviction and sentence dated 08/09.03.2007 passed by learned Additional Sessions Judge, Fast Track Court-VI, Hazaribagh in S.T. No.380 of 2003 arising out of Keredari P.S. Case No.24 of 2003 (corresponding to G.R. Case No.1305 of 2003) whereby and whereunder, the appellants have been held guilty for the offences under Sections 304(B) and 498(A) read with Section 34 of the Indian Penal Code and sentenced to undergo R.I. of eight years for the offence punishable under Section 304(B) each and R.I. of one year for the offence punishable under Section 498(A) read with Section 34 of the I.P.C. along with fine of Rs.1000/- with default stipulation. 3. The factual matrix giving rise to this appeal is that one Raju Mahto, brother of deceased Fulko Devi lodged the F.I.R. before Keredari Police Station on 31.05.2003 stating inter alia that his sister Fulko Devi was married with Charku Mahto in the year 2001 in accordance with Hindu rights and customs. It is further alleged that just after the solemnization of marriage, there was additional demand of dowry in the shape of T.V. and motorcycle by her husband and in-laws which could not be fulfilled. Hence, Fulko Devi was subjected to cruelty and harassment in her matrimonial home by the accused persons. It is further alleged that on 23.05.2003, informant’s sister came to her paternal home and thereafter, went to her sasural. Today, i.e., on 31.05.2003, informant came to know that his sister has been died in her sasural by drowning into a well. Informant has claimed that his sister has been murdered by the accused persons by forcibly throwing into well due to non-fulfillment of dowry demand.On the basis of above information, an F.I.R. was instituted as Keredari P.S. Case No.24 of 2003 for the offences under Sections 498(A) and 304(B) of the I.P.C. and Section 3/4 of the Dowry Prohibition Act. 4. After completion of investigation, charge-sheet was submitted for the offence under Section 304(B) read with Section 34 of the I.P.C. against the above named appellants to face the trial. 4. After completion of investigation, charge-sheet was submitted for the offence under Section 304(B) read with Section 34 of the I.P.C. against the above named appellants to face the trial. After commitment of case to the Court of Sessions, charges under Section 304(B) read with Section 34 of the I.P.C. and Section 498(A) read with Section 34 of the I.P.C. were framed which were not accepted and claimed to be tried. 5. After conclusion of trial, the appellants were held guilty for the aforesaid offences and sentenced as stated above which has been assailed in this appeal. 6. Learned counsel for the appellants has contended that appellants Chaita Mahto and Aghni Devi (Cr. Appeal (SJ) No.489 of 2007) are father-in-law and mother-in-law of the deceased who have no concern with the family affairs between deceased and her husband. There is no specific allegation against these appellants as to when they have asked additional dowry in the shape of motorcycle and T.V. and in what manner they had been subjecting the deceased to cruelty. No specific day and date of any event has been alleged against them. These appellants are poor labourers and old persons now about more than 80 years’ of age, having no use of motorcycle or the T.V. The prosecution has miserably failed to prove any of the charges levelled against them beyond all reasonable doubt and they have been convicted only with the aid of Section 34 of the I.P.C., the ingredients of which, have not been conclusively proved by the prosecution. Therefore, conviction and sentence of these appellants is absolutely illegal and not justified under law and liable to be set aside. 7. So far Charku Mahto (appellant in Cr. Appeal (SJ) No.594 of 2007) is concerned, it is argued that the deceased died due to accidental slip into well and no complicity of the appellant has been proved by the prosecution through cogent and reliable evidence that he dashed his wife into well. No specific date and time have been proved by the prosecution that when the demand of additional dowry was raised by the appellant and what type of cruelty was extended to the deceased at the hands of present appellant. No specific date and time have been proved by the prosecution that when the demand of additional dowry was raised by the appellant and what type of cruelty was extended to the deceased at the hands of present appellant. Therefore, the basic ingredients of Sections 304(B) and 498(A) of the I.P.C. is not proved by the prosecution and there was no occasion to raise the presumption under Section 113B of the Evidence Act regarding dowry death against the present appellant. Therefore, impugned judgment and order of conviction and sentence is also liable to be set aside against the appellant Charku Mahto.In the alternative, it is argued that the appellant Charku Mahto has remained in custody for more than 4 years out of 7 years imprisonment awarded to him and has sufficiently been punished. The appellant has maintained peace and harmony in the society and not indulged in any other criminal activity since his release on bail by this Hon’ble Court. Therefore, the substantive sentence of imprisonment awarded to the appellant Charku Mahto may be reduced to the period already undergone. 8. On the other hand, learned Addl. P.Ps. for the State defending the impugned judgment and order of conviction and sentence of the appellants has contended that the learned trial court has very wisely and aptly analyzed, scanned and appreciated the prosecution evidence in a threadbare manner and arrived at right conclusion about guilt of the appellants. The prosecution has proved the charges levelled against the appellants beyond all shadow of reasonable doubt. Therefore, there is no reason to interfere with the impugned judgment and order of conviction and sentence of the appellants and there is no merit in this appeal which is fit to be dismissed. 9. Perused the case record along with impugned judgment and order in light of contentions raised on behalf of both side. 10. It appears that in order to substantiate the charges levelled against accused persons altogether 9 witnesses were examined by the prosecution. The Investigating Officer of the case could not be examined due to his transfer to Bihar cadre. 11. The most important witness in this case is the informant Raju Mahato himself who has been examined as P.W.8. He has proved the contents of his written report and testified that his sister died in her sasural on 30.05.2003 by drowning into well belonging to her in-laws. 11. The most important witness in this case is the informant Raju Mahato himself who has been examined as P.W.8. He has proved the contents of his written report and testified that his sister died in her sasural on 30.05.2003 by drowning into well belonging to her in-laws. He has further deposed that his sister was married with accused Charku Mahto in the year 2001. He further states that about one and a half years his sister has lived quite well in her sasural, thereafter, her husband, mother-in-law and father-in-law started taunting her about deficient dowry and raised demand of one T.V. and motorcycle and due to non-fulfillment of the same, the deceased was subjected to physical and mental cruelty. She was not provided proper food and other necessities. He has further deposed that on 20.05.2003 his sister had come to her parental home and disclosed to her father that if he would not give the T.V. and motorcycle to husband and in-laws, her survival would be difficult. He has further deposed that due to paucity of money, above demand could not be fulfilled but the deceased was convinced to go to her matrimonial home and was sent to her sasural on 23.05.2003. He has further deposed that on 30.05.2003 at 02:00 a.m. his sister died and he received information on 31.05.2003 in the morning from a resident of matrimonial village of his sister. Thereafter, this witnesses along with his father and other villagers namely Binod Kumar Rana (P.W.5) and Naresh Mahto (P.W.6) proceeded to matrimonial home of his sister at Village Sayal and saw her dead body was lying on a cot in the veranda which was covered with clothes. He removed the clothes and saw that there was some mark on neck and froth had come out from mouth. There were some injuries on right leg heel. He also asked with villagers who disclosed that the deceased has been died due to drowning into well situated at a distance of 1 K.m. from her matrimonial home. But none of the villagers claimed to have seen the deceased while falling into well. This witness has further claimed that seeing the dead body, it was appearing that the deceased was forcibly dashed into well. It is falsely claimed by accused persons that while taking water from well, accidentally the deceased fell into well and died. But none of the villagers claimed to have seen the deceased while falling into well. This witness has further claimed that seeing the dead body, it was appearing that the deceased was forcibly dashed into well. It is falsely claimed by accused persons that while taking water from well, accidentally the deceased fell into well and died. He has further proved signature on his written report which was scribed by Vinod Kumar Rana on his dictation which is marked as Ex.1. In his cross-examination, this witness claims that on 20.05.2003 his sister alone came to her matrimonial home and on 23.05.2003, she went to her sasural with her elder sister Jhalo Devi. He has further stated that Jhalo Devi was not allowed to enter into the matrimonial house of the deceased. He further admits that no case under Section 498A of the I.P.C. was instituted when the demand was at first raised. P.W.7 Parsad Mahato is the father of deceased. According to his evidence, his deceased daughter was married with Charku Mahto in the year 2001. After marriage his son-in-law raised demand of motorcycle and T.V. Then this witness showed his inability by saying that he had five daughters and cannot give these items. Thereafter, when this witness used to go to bring his daughter from matrimonial home on the occasion of Holi and Dusshera festival, she was not allowed to come due to non-fulfillment of above demand. He has also stated that when his wife fell ill then about eight days prior to occurrence his daughter has come to see her and told that her husband is assaulting her due to non-fulfillment of demand of motorcycle and T.V. Just after one week, when his daughter went to her matrimonial home again, he received information about her death due to drowning into well. He also went to her matrimonial home along with his son Raju Mahato and other villagers namely Naresh and Vinod and saw the dead body of his daughter lying on a cot in the veranda. The villagers also disclosed that she drowned into well situated near the house at about 03:00 a.m. in the night. He suspects that his daughter was killed and thrown into well by her husband due to non-fulfillment of above demand. The villagers also disclosed that she drowned into well situated near the house at about 03:00 a.m. in the night. He suspects that his daughter was killed and thrown into well by her husband due to non-fulfillment of above demand. In his cross-examination also, he reiterates that the motorcycle and T.V. was being asked by his son-in-law since, he came for ^^f}jkxeu** of his daughter. P.W.5 Binod Kumar Rana is scriber of the written report and friend of informant. According to his evidence, Fulko Devi died in her sasural on 31.05.2003. He has further deposed that prior to one week of her death Fulko came to her parental home at Village Pokla. He has also stated that whenever deceased used to come to her parental home, she complained about demand of dowry by her husband and in- laws in the shape of motorcycle and T.V. which could not be fulfilled by her father due to poverty. He came to know about the above occurrence from his friend Raju Kumar Mahato who is brother of the deceased and he along with his friend and other family members went to matrimonial home of deceased at Village Sayal and saw her dead body lying on a cot in a veranda of her matrimonial home. The villagers disclosed that at about 02:00 to 02:30 a.m., she had gone to fetch water from the well then slipped into well and died. He also noticed that there were some marks on neck, leg and hand of the deceased which indicate that she was killed by throttling. He has also proved his signature on the written report which was scribed by him as Ex.1. In his cross-examination, he has deposed that in his statement under Section 161 of the Cr.P.C. he has stated before the police that about one week prior to incident deceased had come to her parental home. He also admits that he is neighbour of the informant. He also admits that the deceased herself disclosed him about demand of dowry and cruel treatment with her by the accused persons. P.W.6 Naresh Mahto is another resident of Village Pokla and went to matrimonial home of deceased along with her brother Raju Mahato (informant). He has also claimed to have seen the dead body of the deceased lying in the baramda of matrimonial home on a cot. P.W.6 Naresh Mahto is another resident of Village Pokla and went to matrimonial home of deceased along with her brother Raju Mahato (informant). He has also claimed to have seen the dead body of the deceased lying in the baramda of matrimonial home on a cot. The villagers disclosed that while fetching water from well, the deceased slipped into a well and died due to drowning. He also came to know from the informant and his father that at the time of marriage, no dowry was given but after marriage accused persons were demanding T.V. and motorcycle and due to non-fulfillment of which, the deceased was subjected to torture. He has disclosed nothing else. P.W.1 Kunwar Yadav is a local villager of the place of occurrence. According to him on the date of occurrence at about 05:00 a.m., he came to know that Fulko has died in a well belonging to Chaita Mahto but he cannot say how she drowned into well. The dead body was pulled out in his presence from the well. He has disclosed nothing else material to the case and declared hostile by the prosecution. P.W.2 Jitan Mahato is also local person of Village Sayal but he has failed to disclose any untowards happening with the deceased rather admits that Fulko Devi has died due to drowning into a well on 30.05.2003. He came to know about the incident at about 04:05 a.m. He cannot tell about any ill- treatment or torture meted with the deceased in any manner whatsoever at the hands of accused persons. There is nothing else in his evidence. P.W.3 Chotan Mahato is also a local person of Village Sayal. According to his evidence, Fulko Devi died due to drowning into a well and after hearing hullah, he, at about 05:00 a.m., went towards the well of Chaita Mahto and saw the dead body of Fulko Devi which was brought out from the well. There is nothing else in his evidence. This witness has also been declared hostile by the prosecution. In his cross-examination by defence, he admits that there was no ill-treatment or torture of the deceased at the hands of accused person. P.W.4 Bhorosi Mahato is also a local person of Village Sayal. According to him also, the deceased has died due to drowning into a well but how she fell down, he does not know. In his cross-examination by defence, he admits that there was no ill-treatment or torture of the deceased at the hands of accused person. P.W.4 Bhorosi Mahato is also a local person of Village Sayal. According to him also, the deceased has died due to drowning into a well but how she fell down, he does not know. He also admits cordial relationship of the accused persons with deceased. P.W.9 Dr. Rajesh Kumar Gupta has conducted autopsy and found following: (i) Rigor mortis present in all four limbs. Regarding decomposition, abdomen distended, faul smailing gas present, face blacken and swallen, marbling of veins present, blisters present. (ii) Anal orifice facial matters present. (iii) The brain was congested, larynx and trachea congested, lungs by latoraly enlarged and congested and miled decomposed, heart empty, stomach miled congested, watery contents present. Small intestine wall miled congested no water seen. Liver and splin, miled congested, decomposed partly, kidney miled congested, blader empty. The doctor opined cause of death asphyxia due to throttling and suffocation. Time lapse since death approximately 12 to 48 hours. 12. At the outset for better appreciation of the case, the relevant provisions are extracted as under: Section 498A of the I.P.C. reads as follows: “498A: Husband or relative of husband of a woman subjecting her to cruelty- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation – For the purpose of this section 'cruelty'means – (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman. Explanation – For the purpose of this section 'cruelty'means – (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman. (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand." The essential ingredients of Section 498A of the I.P.C.are as under: “Essentials (i) That there was a married woman; (ii) that such woman was subjected to cruelty; (iii) that such cruelty consisted of any willful conduct of such nature as was likely to drive such woman - to commit suicide, or to cause grave injury or danger to her life, limb or health, whether mental or physical; harassment of such woman where such harassment was - with a view to coercing such woman or any person related to her to meet any unlawful demand for any property or valuable security, or on account of failure by such woman, or any person related to her to meet the unlawful demand in able and the woman was subjected to such cruelty by - the husband of that woman; or any relative of the husband of that woman.” Section 304B IPC deals with dowry death which reads as follows: “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 same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). Explanation – For the purpose of this sub-section 'dowry' shall have 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.” The essential ingredients of the offence of dowry death as per above Section are as under: “(i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance. (ii) Such a death should have occurred within seven years of her marriage. (iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband. (iv) Such cruelty or harassment should be for or in connection with demand of dowry. (v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death.” Section 113B of the 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 had 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. 13. The Hon’ble Apex Court in the case of Kans Raj v.State of Punjab, (2000) 5 SCC 207 held as under: 9. The law as it exists now provides that where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within 7 years of marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative for or in connection with any demand of dowry such death shall be punishable under Section 304B. In order to seek a conviction against a person for the offence of dowry death, the prosecution is obliged to prove that: (a) the death of a woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances; (b) such death should have occurred within 7 years of her marriage; (c) the deceased was subjected to cruelty or harassment by her husband or by any relative of her husband; (d) such cruelty or harassment should be for or in connection with the demand of dowry; and (e) to such cruelty or harassment the deceased should have been subjected to soon before her death. 14. From the aforesaid discussion of prosecution evidence, it is crystal clear that there are general and omnibus allegation against the appellants Aghni Devi @ Adhni Devi and Chaita Mahto who happens to be mother-in-law and father-in-law of the deceased. Admittedly, the marriage was solemnized in the year 2001 and death of the deceased happened in the year 2003. It is also admitted fact that till one and a half years, the deceased remain quite well in her matrimonial home. Whatever demand of dowry in the shape of motorcycle and T.V. alleged to be raised is against the husband alone as per evidence of informant and his father Parsad Mahato P.W.7. It is also alleged that the deceased was being tortured and physically assaulted by her husband due to non-fulfillment of over above demand. Soon before her death also, the deceased has disclosed to her parents and the informant about her physical assault and apprehension that she will be killed, if the above demand of her husband is not fulfilled and just after that within a week, the deceased has died an unnatural death at her matrimonial home. It is also apparent from the P.M. report of the deceased that it was a case of throttling and not of accidental slip into well. The time of occurrence as disclosed by witnesses is between 03:00 to 04:00 a.m. which is also odd time when no one goes to fetch water from a well. The overall evidence available on record clearly proves the foundational facts attracting the offences under Section 304B and 498A of the I.P.C. against the appellant Charku Mahto alone. 15. The time of occurrence as disclosed by witnesses is between 03:00 to 04:00 a.m. which is also odd time when no one goes to fetch water from a well. The overall evidence available on record clearly proves the foundational facts attracting the offences under Section 304B and 498A of the I.P.C. against the appellant Charku Mahto alone. 15. It appears that appellant Chaita Mahto and Aghni Devi who happens to be father-in-law and mother-in-law of the deceased are roped in this case without any cogent and reliable evidence and no specific overt act or participation in any manner in the alleged offence has been attributed against them. 16. In view of above discussion and reasons, the conviction of the appellant Charku Mahto appellant in Cr. Appeal (S.J.) No.594 of 2007 is upheld and affirmed but the conviction and sentence of the appellants, Aghni Devi @ Adhni Devi and Chaita Mahto, mother-in-law and father-in-law in Cr. Appeal (S.J.) No.489 of 2007 are hereby set aside and they are acquitted from the charges levelled against them and also discharged from the liability of their bail bonds and sureties are also discharged. 17. So far alternative plea of learned counsel for the appellant Charku Mahto is concerned, it is obvious that he has remained more than four years in judicial custody while facing trial. More than two decades have been lapsed from the date of commission of offence. The appellant has undergone the agony of trial since long and has not been involved in any other criminal activities. Therefore, in the facts and circumstances of the case, it appears that he has been punished sufficiently for his guilt. Therefore, sentence awarded to the appellant Charku Mahto is reduced to the imprisonment already undergone. 18. In view of aforesaid reasons, Cr. Appeal (S.J.) No.489 of 2007 is allowed and Cr. Appeal (S.J.) No.594 of 2007 is dismissed on merits with modification in sentence to the extent of imprisonment already undergone. 19. Pending I.A., if any, stands disposed of. 20. Let a copy of this judgment along with Trial Court record be sent back to the concerned Trial Court for information and needful.