Vivek Puri, J.

1. The appeal has been preferred against the judgment of conviction dated 03.09.2003 passed by the learned Additional Sessions Judge, Bathinda, vide which Rakesh Kumar-appellant has been convicted under Section 304-B of the Indian Penal Code (for short `IPC’) and the order of sentence dated 05.09.2003 vide which he has been sentenced to undergo rigorous imprisonment for a period of 8 years and to pay fine to the tune of Rs.5,000/-, in default whereof to further undergo rigorous imprisonment for a period of 6 months.

2. The appellant along with his brother Amarjit Kumar have been sent up to face trial for having committed the offence under Section 304-B IPC by the officer incharge, Police Station Maur. The facts as put forth by the prosecution are to the effect that Brij Lal-complainant was running a shop of Radio/TV mechanic at Sirsa. His son Anil Kumar was serving in Navy and he had two daughters Sunita and Anju. The marriage of his eldest daughter Sunita was solemnized on 13.12.1995 with the appellant in accordance with Hindu Rites and Ceremonies. Sufficient dowry articles were given at the time of marriage. After some time of the marriage, the family members of her in-laws started mal-treating and harassing Sunita for bring less dowry and had been taunting her. They were mal-treating and harassing her for bringing more dowry. The complainant had been fulfilling the demands raised by the appellant, his brothers Amarjit Kumar and Surinder Kumar and sisters-in-law Kirna Rani and Kamlesh Rani with a hope to settle his daughter in the matrimonial house. Two children i.e. a daughter aged about 3-3/4 years and a son aged about 2-1/2 years were born to her daughter. In the month of December 1999, the family members of her in-laws again started mal-treating and harassing the deceased and they raised a demand of Rs. 1 lakh. The complainant took a sum of Rs. 50,000/- from his relatives and along with his brother Kundan Lal delivered the same to Amarjit Kumar in the presence of the appellant. They were requested to refrain from harassing Sunita. Even thereafter, Sunita informed that they are not refraining from mal-treating her. A month prior to the occurrence, Sunita disclosed that the family members of her in-laws were raising demand of motorcycle. On 16.09.2000, the complainant had a telephonic talk with her daughter who informed that on the previous night, she was given beatings on account of demand of motorcycle. The complainant along with his brother Kundan Lal visited the house of the appellant, who along with other family members threatened to kill Sunita in the event, the demand was not honoured. The complainant and his brother returned back and at about 9.30 p.m., he received an information that Sunita has died. After making arrangement for vehicle, the complainant along with his relatives came to Maur Mandi and found the dead body of Sunita lying in the lobby of the house. She was bleeding from her nose and ear. It has been alleged that the deceased has been killed on account of demand of dowry by the appellant along with his brothers and sisters-in-law.

3. During the course of investigation, Surinder Kumar, his wife Kirna Rani and Kamlesh Rani wife of Amarjit Kumar were found innocent. The challan was presented against the appellant and his brother Amarjit Kumar. As the offence under Section 304-B IPC was exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions by the learned Judicial Magistrate First Class in terms of order dated 23.12.2000. A prima facie case under Section 304-B IPC and in the alternative under Section 302 IPC was made out against the accused. The charge was accordingly framed. The contents thereof were read over and explained to them to which they pleaded not guilty.

4. In order to substantiate its case, the prosecution has examined 07 witnesses. The statements under Section 313 of the Code of Criminal Procedure (for short `Code’) of the appellant and his co-accused Amarjit Kumar were recorded and they have examined 05 witnesses in defence evidence.

5. In terms of the judgment dated 03.09.2003, the learned trial Court acquitted Amarjit Kumar –accused by extending benefit of doubt, whereas the appellant was held guilty and convicted under Section 304-B IPC and sentenced as afore-said.

6. Aggrieved by the aforesaid judgment of conviction and order of sentence, the present appeal has been preferred.

7. I have heard learned counsel for the parties and perused the record.

8. As per the version of the prosecution, the marriage of the appellant was solemnized with the deceased on 13.12.1995. The allegations put forth are to the effect that the appellant and other family members had been subjecting the deceased to cruelty and harassment on account of demand of dowry. The death had occurred on 16.09.2000 and the cause of death has been stated to be organo phosphorous poisoning.

9. The case has been registered on the basis of the statement (Ex.PA) of Brij Lal, PW1, who is the father of the deceased. While appearing in the witness box, he has deposed to the effect that the marriage of the deceased was solemnized with the appellant on 13.12.1994 at Sirsa in accordance with the Hindu rites and ceremonies. The appellant along with other family members had been raising demand of dowry including Rs. 1 lakh in cash and motorcycle. A sum of Rs. 50,000/- was paid and a request was made to the appellant and other family members not to mal-treat the deceased. However, the mal-treatment continued and it resulted into death of the deceased on 16.09.2000. Kundan Lal PW3, is the brother of the complainant, who had also reiterated the version as put forth by the prosecution. He has also testified with regard to the demands raised by the appellant, payment of Rs. 50,000/- and further demand of motorcycle raised by the appellant. Dr. Sushil Gupta, PW2, was a member of the Medical Board, who conducted the post mortem examination on the body of the deceased and as per the opinion, the cause of death has been stated to be due to Organo Phosphorous group of Insecticide poisoning, which was sufficient to cause death in the ordinary course of nature. The investigation of the case has been conducted by SI Joginder Singh, PW4. HC Balbir Singh, PW5 had taken the dead body for the post mortem examination. HC Inderjit Singh, PW6, had retained the parcel in the malkhana and HC Amrik Singh, PW7, had taken the parcel to the office of chemical examiner.

10. In his statement recorded under Section 313 of the Code, the appellant has denied the correctness of the incriminating evidence appearing against him. It has been alleged that the marriage was solemnized more than 7 years prior to the occurrence. He has put forth the following defence version:-

“I am innocent. I am living separately in my newly constructed Kothi No. 14 in Ganesh Colony, Ward No.7, Maur Mandi. My ration card is separate from my brother. I have separate LPG connection, separate telephone, separate electricity connection in my name. I was having Maruti Car No. JK-08-0689 and the same was being maintained by me and after the sale of that Car I purchased Maruti 800 bearing Regn. No. PB-03F/8388 in 1998 which is still with me. I am having scooter No. PB03D/0424 since 1995. I have flourishing business and an Income Tax Assessee. Sunita Rani deceased was beautiful girl and having very good height. Her personal merits were the only consideration for her marriage with me because in Aggarwal community beautiful girls were rarely found. Due to her merits, I preferred to have simple marriage with her as her father was poor person. No demand of Rs. 1 lac was ever made by me or by other brothers and their wives nor any amount of Rs.50,000/- as alleged was paid by Brij Lal and Kundan Lal to me or my elder brother Sh. Amarjit Kumar. At the time of marriage Sunita Rani was a thin built girl. After marriage she was provided all her comforts and luxuries and relations between me and Sunita Rani were very cordial. We have been enjoying Hill Station and other tours even with her father, mother, younger sister as the photos on the file proves it. I and my wife accompanied by my father-in-law, mother-in-law and younger sister-in-law visited in MayJune, 2000 and remained for 5/6 days at Mussoorie and Haridwar. The photos on the file also proves that she was well built and well nourished when she died and this was all due to love and affection given by me to her. From our wedlock one son and one daughter were born, who were students of Sant Fateh Singh Convent School, Maur Mandi and I was to pay Rs. 25,000/- as fee per year for both my son and daughter. No dowry was ever demanded either from Sunita Rani or from her parents. No Hero Honda Motor Cycle was ever demanded by me or by my brothers or by their wives. We need not to have Hero Hondas Motor Cycle for local use I was having scooter make Vespa No. PB03D-0424 and for out station use I was having Car No. PB-03F-8388. Sunita’s brother Anil Kumar Gupta was employed in Navy about 8 months prior to the occurrence and during this period he wrote letters dated 20.8.99, 30.8.2000 and also another letter which are Ex.DB,DC and DD. I and my brothers or their wives never maltreated Sunita Rani nor any dowry was ever demanded. On 16.9.2000 the complainant Birj Lal and his brother Kundan Lal did not visit my house at Maur Mandi. There was a pesticide store near my house and pesticides were being stored there. Sunita Rani accidently inhaled some pesticide while spraying some insecticide for killing some insects in the house before going to bed. She died accidental death. At that time she was wearing 4 gold bangles worth Rs. 50,000/-, one gold nose pin and other silver ornaments. On telephone Brij Lal, father of Sunita Rani was informed about the accidental death. Brij Lal along with his brother Kundan Lal and other relations accompanied by Advocates came in a mob to my house. After deliberations and consultations with Advocates a false case was got registered to extort money.”

11. During the course of defence evidence, the appellant and his co-accused had examined Sukhchain Singh, DW1, who produced the record pertaining to the Gas connection indicating separate connections in the name of the appellant and the co-accused. Parshotam Dass, DW2, had prepared the site plan Ex.DW2/A. Satpal, DW3, was working as Inspector in Food and Supply Department and testified with regard to the separate ration cards in the name of the appellant and his brother Amarjit Kumar. Jugraj Singh, DW4, was working as LDC in the Punjab State Electricity Board and as per his deposition, separate electricity connections were released in the name of the appellant and Kamlesh Rani, wife of the Amarjit Kumar. Vivek Rattan, DW5, was working as a clerk in District Transport Office, Bathinda and as per his deposition, a car bearing registration no. JK-08-0689 was transferred in the name of the appellant. Besides, another car bearing registration no. PB-03F-8388 was registered in the name of the appellant. LML Vespa scooter bearing registration no. PB-03D-0424 was also registered in his name.

12. Before proceeding further, it may be mentioned here that as already observed, Amarjit Kumar, co-accused was acquitted. During investigation, three other persons, who were named in the FIR i.e. Surinder Kumar, Kirna Rani and Kamlesh Rani were found to be innocent. During the course of trial, an application under Section 319 of the Code was also moved for summoning the three persons as an accused, however, the said application was dismissed in terms of the order dated 28.11.2001.

13. While assailing the judgment of the learned trial Court, it has been argued by the learned senior counsel for the appellant that there is no reliable evidence to indicate the date of marriage. The first version of the case has been unfolded in the statement Ex.PA of Brij Lal, PW1, wherein the date of marriage has been specified as 13.12.1995. However, while appearing in the witness box, Brij Lal, PW1 and Kundan Lal, PW3, have given date of marriage as 13.12.1994. It is also emerging in the cross-examination of Kundan Lal, PW3, that the marriage ceremonies were performed by Vinod Kumar, who is alive. Even the marriage was performed in a Dharamshala which was booked by the father of the deceased. Significantly, neither Vinod Kumar has been examined nor any document with regard to the booking of the venue of the marriage has been produced on record indicating the exact date of marriage. The version given by Brij Lal, PW1, with regard to the demand of cooler, fridge and Rs. 10,000/- in cash is an improved version and nothing in this regard has been mentioned in the statement Ex.PA. Even there are vague allegation with regard to the demand of Rs. 1 lakh and payment of Rs. 50,000/- alleged to have been borrowed from the relative. The name of the relative or the person from whom the amount of Rs. 50,000/- was procured has not been specified and even such person has not been examined during the course of trial. The appellant was owner of a car and a two wheeler at the time of the occurrence. He was having a flourishing business and an income tax assessee, whereas, Brij Lal, PW1, the father of the deceased was running a radio/TV mechanic shop and was not even assessed to income tax or sale tax. The personal merit of the deceased was the primary consideration for marriage. The appellant belongs to a well - off family and there was no occasion to raise any demand of dowry. Furthermore, at the time of the death, the deceased was wearing sufficient jewellery articles which are also indicative of the fact that she was kept in a nice manner in the family of her in laws. The matter with regard to the demand of dowry as alleged to have been raised by the appellant was never reported at any forum during the life time of deceased. It sounds improbable that such a demand could have been raised after a period of about six years from the marriage. The appellant has also moved an application under Section 391 of the Code for placing on record the sale deeds dated 06.01.1997 and 07.12.1999 vide which the properties have been purchased in the name of the deceased along with Kamlesh Rani and Kirna Rani, sisters-in-law of the appellant. The purchase of immovable properties in the names of the daughters-in-law of the family is further indicative of the fact of cordial relations and the faith which the appellant along with his brothers were reposing upon the daughters-in-law of the family. The brother of the deceased was undergoing naval training and he has sent letters which reflect happy state of affairs. An amount of Rs. 50,000/- is stated to have been paid to Amarjit Kumar, the brother of the appellant, who has been acquitted. The case of the prosecution cannot be termed to be free from reasonable doubt.

14. On the contrary, while supporting the judgment of the learned trial Court, it has been mainly argued by the learned State counsel that the relationship between the appellant and the deceased has not been disputed. The marriage was solemnized on 13.12.1994 and two children were born from the wedlock. The death has occurred under unnatural circumstances within a period of seven years of the marriage in the house of the appellant. The cause of death is organo phosphorous poisoning. As per the version of Brij Lal , PW1, and Kundan Lal, PW3, the deceased was subjected to cruelty and harassment in connection with demand of dowry. The essential ingredients of Section 304-B IPC are attracted in the instant case. The sale deeds which have been proved on record by invoking the provisions of Section 391 of the Code cannot be relied upon as no such plea has been put forth by the appellant in his statement under Section 313 of the Code. Furthermore, the letters written by the brother of the deceased cannot be termed to be a factor to conclude happy state of affairs as he was undergoing naval training in coastal area and it is quite possible that the deceased and her parental family might have concealed the state of affairs in the matrimonial house of the deceased to avoid any mental disturbance to him during the course of his training.

15. In the instant case, the charge was framed under Section 304-B IPC and in the alternative under Section 302 IPC. The learned trial Court has observed that the learned Additional Public Prosecutor had conceded that the charge under Section 302 IPC is not established and the case was pursued only with regard to the commission of offence under Section 304-B IPC. Even after minutely going through the evidence, the learned trial Court had concluded that there was no evidence adduced by the prosecution to bring the instant case within the ambit of Section 302 IPC. Even during the course of hearing in this Court, no such argument has been put forth with regard to the commission of offence under Section 302 IPC.

16. The relationship of the appellant with the deceased has not been disputed. Two children were born from the wedlock. The death has occurred on account of organo phosphorous poisoning on 16.09.2000. The version put forth by the prosecution is to the effect that the marriage was solemnized about 6 years prior to the occurrence. The appellant had been raising demand of dowry and mal-treating the deceased soon before her death and caused the dowry death. The question which arises for consideration is as to whether the case under Section 304-B IPC is made out against the appellant or not.

17. Section 304-B IPC provides as following:-

“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 subsection, “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.”

18. As per the provisions of Section 304-B IPC, in the event of proof of the fact that soon before death, the deceased was subjected to cruelty or harassment by her husband or any of the relative for or in connection with any demand of dowry and the death has occurred otherwise than under normal circumstances, within a period of seven years of marriage, such death shall be called “dowry death”.

19. At this stage, it will be appropriate to mention here that presumption has to be raised with regard to the dowry death as per the provisions of Section 113-B of the Indian Evidence Act, which provides as under:-

“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.

Explanation – For the purposes of this section, “dowry death” shall have the same meaning as in Section 304-B of the Indian Penal Code (45 of 1860)”

20. On a conjoint reading of Section 304-B IPC and Section 113-B of the Indian Evidence Act, the essential ingredients pertaining to the offence are enumerated herein-below:

(i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstances,

(ii) Such 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 soon before her death,

(iv) Such cruelty or harassment should be for or in connection with demand of dowry.

21. On adverting to the merits of the present case, as per the version put forth in the FIR, the date of marriage has been stated to be 13.12.1995. However, Brij Lal, PW1 and Kundan Lal, PW3 while appearing in the witness box have deposed to the effect that the marriage was solemnized on 13.12.1994. Furthermore, the copy of the wedding invitation car (Ex.PD) also indicates that the marriage was solemnized on 13.12.1994. Although, Vinod Kumar, who had performed the ceremonies on marriage has not been examined and even no document pertaining to the booking of the venue of the marriage has been proved on record, but the same cannot be termed to be a circumstance to conclude that the marriage was solemnized on a day other than 13.12.1994. In his statement recorded under Section 313 of the Code, the appellant has alleged that the marriage was solemnized more than seven years prior to the occurrence, but significantly, he has not specified the date on which the marriage was solemnized. In view of the statements of Brij Lal, PW1 and Kundan Lal, PW3 clubbed with the copy of the wedding invitation card and silence on the part of the appellant with regard to the date of marriage, it has to be concluded that the marriage was solemnized on 13.12.1994. Death has occurred on 16.09.2000 i.e. within a period of seven years from the date of marriage and that too due to organo phosphorous poisoning indicating the death to be otherwise than under normal circumstances.

22. The relationship between the appellant and the deceased has not been disputed. The material on record indicates that the marriage was solemnized about 6 years prior to the occurrence and two children were born from the wedlock. The significant question which is to be adjudicated in the instant case is as to whether the deceased was subjected to cruelty or harassment by the appellant soon before her death and such cruelty or harassment was for or in connection with demand of dowry. It may be mentioned here that prior to the registration of the FIR, there is nothing to suggest that any complaint was made at any forum or the matter with regard to the demand of dowry and subjecting the deceased to cruelty was reported at any forum. With regard to Brij Lal, PW1, the father of the deceased had testified to the effect that he had been meeting with the demand as raised by the appellant and his family members. Sometimes, they had demanded a cooler, fridge and also a sum of Rs. 10,000/- in cash and such demands were met with by him. Significantly, this is an improved version as put forth by the father of the deceased. When confronted with the statement Ex.PA, it was found that no such allegation has been specified therein. Consequently, it has to be concluded that such allegation has been put forth by the father of the deceased as a result of afterthought and the same cannot be accepted to be true and correct being an improved version.

23. The prosecution has further put forth a case to the effect that the appellant had raised a demand of Rs. 1 lakh and a sum of Rs. 50,000/- was paid after collecting the same from his relatives by Brij Lal, PW1. The amount of Rs. 50,000/- was handed over to Amarjit Kumar. It may be mentioned here that Amarjit Kumar, the brother of the appellant, has been acquitted. Although, it has also been alleged that the amount was paid to Amarjit Kumar in the presence of the appellant, but significantly, there is a lack of material on record to indicate the source from where such amount was procured. There is a bald assertion that the amount of Rs. 50,000/- was collected from the relative, but the name of such relative has not been specified. Even no such relative has been examined during the course of trial to indicate passing of amount of Rs. 50,000/- which was further handed over to the brother of the appellant.

24. The next aspect of the case is to the effect that about a month prior to the occurrence, the appellant and his family members started raising demand of motor cycle. Significantly, no motor cycle was given to the appellant or his family members. Moreover, the material on record is indicative of the fact that the appellant was having a car and a two wheeler even at the time of the occurrence. The appellant has examined Vivek Rattan, DW5, who was working as a Clerk in the District Transport Office and he has testified with regard to the registration of two cars and a scooter in the name of the appellant. Even in his statement recorded under Section 313 of the Code, the appellant has put forth a version to the effect that he was having a Maruti Car and after selling the same, he purchased another Maruti 800 car. Besides, he was having a scooter. Furthermore, he was having a flourishing business and was also an income tax assessee. Even in his cross-examination, Brij Lal, PW1, has not specifically denied that the appellant was having a scooter or car with him. He has even stated that the appellant might be having these articles at the time of death of his daughter. The appellant was from a well-off family. Brij Lal, PW1, has also testified to the effect that he was running a Radio/TV mechanic shop and was not income tax or sale tax assessee. The appellant was adequately well-off and it sounds unnatural and improbable that he would have raised a demand of motor cycle particularly when he was already having a car and two wheeler with him.

25. The appellant has put forth a version to the effect that the deceased was a pretty girl and her personal merit was the only consideration for marriage. The matter does not rest here. The brother of the deceased was undergoing naval training and he had written the letters (Ex.DB to DD) to the appellant and the deceased. The contents of the letters are indicative of the fact that there was happy state of affairs and do not in any manner to indicate there was any stained relations or discord between the appellant and the deceased. Had the deceased been harassed or subjected to cruelty either by the appellant or his relatives, either the deceased or the relatives from her parental side would have shared about such a state of affairs with the brother of the deceased. Letters are indicative of the fact that the deceased was having comfortable and cordial matrimonial life.

26. Furthermore, at the time of the death, the deceased was wearing two gold bangles in the left hand, two gold bangles in the right hand, one golden ring, one golden nose pin, one pair of silver pajeb, a silver ring on the right toe and one silver ring on the left toe. This aspect of the matter has emerged in the statement of Dr. Sushil Gupta, PW2, SI Joginder Singh, PW4 and also the inquest report (Ex.PG). Even it is emerging in the cross-examination of Brij Lal,PW1 that the deceased was wearing gold jewellery.

27. During the pendency of the appeal, an application under Section 391 of the Code has been moved on behalf of the appellant for producing two sale deeds dated 06.01.1997 and 07.12.1999, which have been executed in favour of the deceased and others. The sale deeds have been executed in favour of Sunita, deceased, Kirna Rani and Kamlesh Rani, the other two daughters-in-law of the family. The appellant had appeared on behalf of the purchasers at the time of the execution and registration of the sale deeds.

28. In terms of the order dated 19.07.2019, the application under Section 391 of the Code was allowed and as per the statement of the appellant the original sale deeds dated 06.01.1997 and 07.12.1999 were tendered in evidence as Ex.DX and Ex.DY.

29. The said two sale deeds are duly registered documents indicating that the properties have been purchased in the name of three daughters-in-law of the family including the deceased. Merely because the appellant remained silent in his statement recorded under Section 313 of the Code cannot be a ground to disbelieve the execution of the sale deeds, which have been proved by way of additional evidence, particularly because, it cannot be said that the duly registered documents could have been manufactured at a subsequent stage to create false evidence. Moreover, the standard of proof required to establish a defence version is preponderance of probability.

30. The material on record is indicative of the fact that the deceased was wearing sufficient jewellery even at the time of death. Furthermore, the investment was made in the immovable properties situated at the place of her in-laws in her name along with two other daughters-in-law. The sale deeds have been executed on 06.01.1997 and 07.12.1999. One of the sale deeds has been executed in the year 1999 itself and it sounds improbable that during that period of time, the appellant would have raised any demand of cash or motorcycle from the parental family of the deceased. There is nothing to suggest that any demand was made prior to or at the time of marriage. There is lack of sufficient and reliable evidence to indicate demand of dowry even subsequent to marriage.

31. Although the death has occurred otherwise than under normal circumstances within a period of seven years, but there is lack of satisfactory and reliable material to indicate that the deceased was subjected to cruelty or harassment by the appellant at any point of time in connection with the demand of dowry. As such, the presumption under Section 113-B of the Indian Evidence Act cannot be raised. In these circumstances, the case of the prosecution cannot be termed to be free from reasonable doubt and the appellant is held entitled to benefit of doubt.

32. For the aforesaid reasons finding sufficient merit in the appeal, the same is accepted. The judgment of conviction dated 03.09.2003 and order of sentence dated 05.09.2003 are set aside. The appellant stands acquitted.

33. Appeal is allowed, accordingly.