1. This Criminal Appeal has been filed under Section 374 of Cr.P.C. by the sole appellant being aggrieved by judgment dated 30.11.2004 passed by the learned Seventh Additional Sessions Judge, Gwalior in Sessions Trial No.372/2002, thereby convicting and sentencing the appellant under Section 498A of the Indian Penal Code (for short 'IPC') for 03 years' rigorous imprisonment (for short 'RI') with fine of Rs.1,000/- and in default of payment of fine additional 06 months RI; under Section 304-B of IPC for 10 years' RI; and under Section 201 of IPC for 02 years' RI with fine of Rs.1,000/- and in default of payment of fine additional 06 months RI.

2. The prosecution story in short is that the marriage of Bhuri, daughter of Dharmveer Sharma and Smt. Shakuntala Sharma residents of village Piparsana, Police Station Gohad District Bhind was solemnized in April 2000 with Santosh @ Aditya S/o Bhuresingh Sharma and Rupali Sharma residents of village Parsen Police Station Bijoli District Gwalior on mediation of Balveer Sharma, Bhagwan Singh Sharma. Parents of Bhuri gave dowry as per their status. After one year of the marriage, Bhuri was sent to her in-laws' house after performing 'Gauna'. After 6-7 days' Bhuri came to her parents' house and informed that her in-laws are demanding motorcycle saying that less amount was given at the time of marriage and threatening her of life. Dharmaveer informed the same to the mediators to advise in-laws' family after which Bhuri went to her in-laws's house. Thereafter she visited her parent's house regularly and informed that her husband Santoh (appellant), father-in-law Bhure Singh, mother-in-law Rumali, brother-in-law Hari, Naresh son of Balveer, uncle of Santosh, etc. used to harass her on account of not giving motorcycle in dowry and she requested parents not to send her to her in-law's house without giving motorcycle to them. Again the mediators were called and after talk with family of in-laws, appellant Santosh came on 4.4.1982 to take Bhuri Bai to his house after giving assurance that she will not be harassed and there will not be any demand of motorcycle. Earlier Bhuri Bai refused to go with Santosh but after advise from family members, she went with Santosh and started living separately with Santosh.

3. On 27.5.2002 when cousin brother of Bhuri namely Sanjay came to take Bhuri, then Santosh told him that he himself will come to the village with Bhuri but they did not come. On 15.6.2002 also in a marriage of near relation, Bhuri did not come and when Santosh was asked about absence of Bhuri, he told that she is in Parsen. When information was sought from Village Parsen, it was told that she is with Santosh in the room situated at Siddheshwar Colony, Morar. On 18.6.2002 in the marriage of niece of Dharmveer also when Bhuri did not come, Santosh was asked about the same and he said that he is not having any information about Bhuri. On this, Dharmaveer gave information on 19.6.2002 to Police Station Morar about missing of Bhuri on which Missing Report No.44/02 (Ex.P/3) was registered.

4. Family members of Bhuri searched Bhuri at her in-laws house and house of Santosh and during that time on 27.5.2002 dead body of a lady was found near Railway Park of Mela Ground under Police Station Gola-Ka-Mandir and this information was given to Police Station Gola-Ka-Mandir by one Vijay resident of Trimurti Nagar, on which Marg No.16/2002 was registered and investigation was done. Vide Ex.P/1 'Naksha Panchnama Lash' was prepared after calling the witnesses vide Ex.P/2. After seizure of articles, i.e., a sleeper and a key vide Ex.P/3, the dead body was sent for post motem vide Ex.P/4.

5. After seeing the photograph of dead body in the newspaper, Dharmaveer identified the deceased as her daughter Bhuri Bai in the Police Station Gola Ka Mandir, on which Ex.P/7 Identification Panchanama was prepared. In the Marg Inquiry after taking the statements of family members of the deceased, FIR Ex.P/20 was registered, registering Crime No.176/2002 for the offences punishable under Sections 498A, 304B, 201, and 34 148, 149, 302 and 307 IPC. After conducting investigation, challan was filed against all the accused persons and the case was committed and thereafter the appellant and other accused persons were tried.

6. Appellant/accused abjured his guilt and submitted that he never demanded any dowry and has been falsely implicated. He never demanded any dowry. While on bail, he has remarried and has two children.

7. Prosecution to prove the charges examined as many as 20 witnesses namely; Surendra Singh (P.W.1), Vijay Katare (P.W.2), Jyoti (P.W.3), Sultan Singh (P.W.4), Mahesh Singh (P.W.5), Jeevaram (P.W.6), Dr.J.N.Soni (P.W.7), Dharamveer Sharma (P.W.8), Shakuntala Bai (P.W.9), Tularam (P.W.10), Hotam Singh (P.W.11), Vijay Kumar Sharma (P.W.12), Harishankar (P.W.13), Vishwanath Sharma (P.W.14), Naresh Bharadwaj (P.W.15), R.S.Chouhan (P.W.16), Sanjay Sharma (P.W.17), Neelam Singh Raghuvanshi (P.W.18), Anil Singh Kushwah (P.W.19), Satish Samadhiya (P.W.20). In defence no witness was examined by the accused persons.

8. After appreciating the evidence available on record, learned trial Court acquitted other accused persons namely Balveer Sharma, Bhuresingh Sharma, Ramjilal, Naresh Sharma, Smt. Rumali Sharma and Raju Sharma for the offences under Sections 498A, 302 in alternative Section 304B of IPC and Section 201 of IPC. Learned trial Court though acquitted appellant Santosh under Section 302 of IPC but convicted him under Section 498A, 304B, 201 of IPC and sentenced for three years' R.I. with fine of Rs.1,000/-, ten years' R.I. and two years' R.I. with fine of Rs.1,000/- respectively with default stipulation.

9. It is the contention of the learned counsel for the appellant that there were no injury marks on the body of Bhuri Bai except legature mark as is mentioned in Ex.P/1. It is also submitted that even in the post-mortem report (Ex.P/6), there is no sign of any injury on the body. In fact, referring to Ex.P/1, it is submitted that there is clear stipulation that even on minute examination of the dead body, there were no apparent injury signs, her personal body parts did not reveal any injury or signs of rape. It is pointed out that there is contradiction even in the colour of clothes inasmuch as, as per Ex.P/1, the dead body was covered with a light yellow colour Sari with sprinkled spots having green maroon and red printed border, whereas in the post-mortem report, colour of Sari has been shown to be saffron. It is submitted that the age of the deceased has been mentioned as 20 years by her father Dharamveer, whereas as per Ex.P/1 Naksha Panchayatnama, her age was between 25 to 30 years and as per the postmortem report, her age was 30 years.

10. It is submitted that PW6 Jeewaram, uncle of the deceased and author of Ex.P/5 has turned hostile and has not supported the prosecution story. This PW6 Jeewaram is real brother of father of the deceased. This PW6 Jeewaram denied the suggestion when leading questions were put to him after declaring him as a hostile witness that his brother Dharamveer had informed him that Bhuri Bai is being physically and mentally tortured for demand of dowry. He also denied that Santosh Sharma and Bhure Singh had entered into a scuffle with Dharamveer and the persons from the colony had saved him. He denied the statement in regard to conciliation between the parties.

11. It is submitted that PW7 Dr. J.N. Soni, who conducted the post-mortem on the dead body of the deceased, admitted that except for a legature mark around her neck, there was no other injury marks or signs of protest on her body. He admitted that such kind of death could have been caused because of throttling which can be caused by more than one person.

12. It is submitted that PW8 Dharamveer Sharma has contradicted the date of marriage and though marriage card was confiscated vide Ex.P/8, but it was never produced. It is also submitted that mother of the deceased Shakuntala in her case diary statement (Ex.D/1) categorically mentioned that the marriage was performed without any kind of demand of dowry and Santosh had only demanded a motor-cycle. She further stated that after marriage, Bhuri Bai had come to their place and she had not narrated anything about any incident. After about one year, she had again visited her parents house when she gave names of her mother-in-law, father-in-law, brotherin-law and uncle-in-law as persons who were harassing her for dowry, but the name of the appellant was not given. It has also come in the statement that Bhuri Bai had started living separately with her husband at Siddheshwar Nagar. Placing reliance on such statements, it is submitted that the prosecution story for demand of dowry has not been proved.

13. It is submitted that even PW8 Dharamveer, father of the deceased, was declared hostile. In para 7, Dharamveer narrated that it was only Santosh who was harassing his daughter and nobody else was harassing her, then he was declared as hostile. He admitted that he had identified jewelry worn by Bhuri Bai at Police Station. Dharamveer admitted that Jeewaram is his elder brother, Tularam is his brother-in-law, Sanjay Sharma is son of Jeewaram and is his nephew.

14. PW9 Shakuntala Bai has admitted that Santosh had a Scooter and he use to commute on the same Scooter.

15. PW10 Tularam, who is brother-in-law of Dharamveer and maternal uncle of the deceased submitted that Bhuri Bai was kept properly by the accused persons and thereafter he was declared hostile. He did not support the prosecution story. In para 9, he admitted that his son Raju and son of Jeewaram, Sanjay are residing at Gwalior and they were visiting Bhuri Bai and she never complained about any dowry demand. In para 10, he deposed that neither his sister nor brother-in-law ever informed them about dowry demand. He supported the statement (Ex.D/1) that marriage was performed in a very healthy atmosphere without their being demand of dowry. He also deposed that financial condition of Santosh is far better than that of his brother-in-law Dharam Singh and he was never informed about demand of dowry.

16. Another prosecution witness PW11 Hotam Singh, uncle of Bhuri Bai, was also declared hostile and did not support the prosecution story.

17. PW12 Vijay Kumar Sharma, who reported about discovery of dead body, too turned hostile.

18. PW13 Hari Shankar, Head Constable, admitted that the date of marriage was 04.04.1999 as per missing person report (Ex.P/13). He further admitted that he was never informed that Bhuri Bai was married on 04.04.1999 to Santosh and the date of marriage as year 2000 was never informed to him. This is an important omission because the date of marriage has been given by PW8 Dharamveer as 18.04.2000 and even seizure memo vide which card of marriage was seized, i.e., Ex.P/8, gives the date of marriage as 18.04.2000. In fact, this PW13 is author of Roznamcha (Ex.P/13) vide which missing person report was lodged. It has also come in Ex.P/13 that the complainant had neither informed as to from which date, Bhuri Bai is missing nor any person was suspected with any foul play.

19. PW16 R.S. Chauhan, ASI, admitted that he had received missing person report No.44/2002 made by Dharamveer Sharma, in which it is mentioned that his son-in-law and Daugher were missing from Siddheshwar Nagar, but he had not carried out any investigation because dead body was recovered.

20. PW17 Sanjay Sharma, is cousin brother of the deceased and in para 8, he admitted that the marriage was performed in a cordial atmosphere and there was no demand for dowry. In para 9, he further admitted that father of Santosh has retired from Military and in front of him, no demand for dowry was made either from Bhuri Bai or his uncle (father of Bhuri Bai). In para 16, he admitted that he gave a statement about murder of Bhuri Bai on the basis of estimation and has no personal knowledge about such murder.

21. PW18, Neelam Singh Raghuwanshi, SDO (P), Kailaras, District Morena admitted that the marriage card was not presented when statements of Shakuntala Bai and Sanjay Sharma were taken. He denied that he had not confiscated the Card on 20.8.2002. He admitted that prior to him, other Officers had conducted investigation, but had not seized the marriage card, for which he cannot assign any reason. He admitted that he had not taken statements of neighbourers of Santosh during investigation. He further admitted that witnesses Shakuntala Bai and Sanjay did not disclose that as to on which date, the demand for motor-cycle was putforth. He admitted that in Ex.D/3, witness Sanjay had not given any statement that Bhuri Bai was killed by her relatives.

22. PW19 another IO Anil Singh Kushwah, Dy. Commandant, APTC also admitted that he had neither taken statements of neighbourers of Santosh in the locality of Siddheshwar Nagar nor the house owner of the locality or other employees of Unique Page Company where Santosh was working. He admitted that Dharamveer and Jeewaram had not given any statements that Santosh had made any demand for motorcycle. He improvised the statement and said that all the accused persons had demanded the motor-cycle. He admitted that on Ex.P/9, Dharamveer had earlier made his statements, which were scored out by him. No reason has been assigned as to why Dharamveer had scored out his signatures on Ex.P/9.

23. PW20 Satish Samadhiya, Inspector, CID Ujjain, admitted that at the time of investigation, he had not found ingredients of Section 302 of IPC to have been made out, therefore, he had not registered the case under Section 302 of IPC. He admitted in para 8 that he had carried out Marg investigation, her family members had narrated it to be a case of dowry death. He admitted that none of the relatives during investigation handed over the marriage card. In para 11, he admitted that in the statements taken during Marg investigation, name of Santosh alone is not mentioned making a demand for motor-cycle. He also admitted that the statements of neighbourers of Santosh at Siddheshwar Nagar or his employer at Unique Page Company were not taken.

24. Learned Sessions Judge has acquitted the appellant from the charge under Section 302 of IPC. In this regard discussion made by the trial Court in relation to issues no.2 and 5, namely, whether death of deceased Bhuri Bai will come in the category of homicidal death and whether the accused persons caused death or murder of the deceased knowingly is to be considered.

25. While discussing issue no.2, it has been held that the death was homicidal. This finding has been recorded on the basis of the statement of Dr. J.N. Soni (PW7).

26. While discussing issue no.5, the learned Sessions Judge has though appreciated the fact that PW6 Jeewaram, PW10 Tularam and PW11 Hotam Singh have been declared as hostile, but merely their turning hostile will not spoil the prosecution case because they have admitted giving statements to the Police. The Sessions Court has also believed on the statement of Shakuntala Bai (PW9), who deposed that her daughter used to inform her that for demand of motorcycle, Santosh was excessively beating her, but this statement is contradictory to the statement given in case diary (Ex.D/1). In Ex.D/1, Shakuntala Bai had admitted that the marriage was performed in a very healthy atmosphere and there was no demand for dowry. She also admitted that Bhuri Bai used to take names of her mother-in-law, father-in-law, uncle-in-law, etc., but the name of Santosh for demand of dowry is missing. This fact in the light of the conduct of Santosh, who had taken a separate house at Siddheshwar Nagar and started living with Bhuri Bai, corroborates that it was not Santosh who was demanding any dowry, but his relatives. The statement of Shakuntala Bai that Bhuri Bai was blatantly beaten to red and blue is also not corroborated and does not inspire any confidence as there were no injury marks either in the postmortem or in Naksha Panchayatnama (Ex.P/1).

27. As has been discussed above, except Shakuntala Bai and Dharamveer Sharma, all the witnesses have turned hostile and they have not supported the prosecution story.

28. Even the investigation is faulty when the appellant was living separately with his wife after taking a house on rent, then it was incumbent upon the Investigating Officer to have taken the statements of persons from neighbourhood to ascertain the factum of cruelty being meted out to the deceased. IO's after IO's have admitted that they had not taken statements of anybody from the neighbourhood or from the office of Santosh.

29. The statement of witnesses that Santosh did not visit his in-laws place and on two occasions on an enquiry informed that she had gone to Jaipur to visit his sister, who was not keeping well, may give rise to suspicion towards the conduct of appellant Santosh. But the learned Sessions Judge has acquitted him for the charge under Section 302 of IPC. To sustain the ingredients of dowry death not only death should have occurred within 07 years of marriage, due to burn or bodily injury or an unnatural death, but also it should be proved that the deceased was subjected to cruelty or harassment by her husband or any of his relatives, then death shall be called dowry death.

30. In the present case, there is no evidence on record to show cruelty in immediate past. It is also true that there is contrast between cruelty of wife under Section 498-A of IPC and dowry death under Section 304-B of IPC. It has come on record that the dead body was taken and cremated properly.

31. In the case of Ravinder Kumar v. State of Haryana as reported in 2005 Cr.LJ 84 (P & H) it has been held that if the demand of dowry was not proved, conviction under Section 304B of IPC was set aside, but the offence of cruelty having been proved, conviction under Section 498A of IPC was upheld. It is surprising that though witnesses have deposed that earlier due to harassment, Panchayat was convened and relatives were examined, but no independent witnesses forming part of the Panchayat were examined to support the story of immediate harassment. Neighbourers of Santosh where apparently Bhuri Bai was living with Santosh could have been the best witnesses to have proved the aspect of demand of dowry or harassment soon before her death, but unfortunately and admittedly the Investigating Officers did not take any pains. Demand of motor-cycle was assigned when Bhuri Bai had visited her mother after about one year of the marriage, whereas death has occurred in 2002. Therefore, the dowry related harassment was not proximate to the date of death and, therefore, conviction under Section 304B of IPC does not seem to be made out.

32. In the case of Vijay Kumar Yadav & Ors. v. State of Bihar as reported in 2006 Cri.L.J.105, it was noted that the father of the deceased alone supported allegations of demand of dowry and cruelty meted out by the appellants. However, the other witnesses did not support the prosecution allegations and there is evidence of Shakuntala Bai in the form of Ex.D/1 that the marriage was performed in a very cordial atmosphere without there being any demand of dowry. In this regard, the law laid down by this Court in the case of Vijay Bahadur Singh & Ors. v. State of MP as reported in ILR 2010 MP 473 is relevant, wherein in para 17, it has been held that in order to attract Section 304B of IPC, the essential ingredients are to be satisfied, namely, death of a woman should be caused by burns or bodily injury or otherwise than under normal circumstances; such death should have occurred within 07 years of her marriage; she must have been subjected to cruelty or harassment by her husband or any relative of her husband; and such cruelty or harassment should be for or in connection with demand of dowry; and such cruelty or harassment should be meted out to the woman soon before her death. Later in the case of Vijay Bahadur Singh (supra), it is held that there is no dependable evidence against the appellants that they subjected the deceased to cruelty or harassment in connection with demand of dowry. There is no evidence against the appellants that the deceased was subjected to harassment during the period of 2-3 months when she stayed in her matrimonial home before her death.

33. In the present case, the fact is that before death of Bhuri Bai, Shakuntala Bai had met her as recently as on 25th May, 2002 as is evident from Ex.D/1, she has not narrated any act of cruelty described by Bhuri Bai on such date when she had met her just prior to her death. In fact, she has given statements before the Court which are not only inconsistent with her case diary statement, but also they are in the form of exaggeration and afterthought.

34. In the case of Baijnath & Others v. State of MP as reported in (2017) 1 SCC 101 , the Hon'ble Supreme Court has held that the prosecution is required to prove the crucial ingredients of cruelty and harassment by direct and cogent evidence to prove a charge under Section 304B of IPC or to attract the statutory presumption available under Section 113B of the Evidence Act. Absence of there being any cogent and direct evidence will dis-entitle to take benefit of statutory presumption available under Section 113B of the Evidence Act.

35. In the present case, the fact is that there were no antemortem injuries on the body of the deceased as has been mention in Ex.P/1 Naksha Panchayatnama so also post-mortem report Ex.P/7. There is no other direct evidence or independent evidence to rope in the appellant under charge of Section 304B of IPC. Therefore, in absence of there being any specific instance of cruelty or harassment made by the accused and there being no corroboration of such charge of cruelty or harassment, this Court is of the opinion that the conviction under Section 304B of IPC is not sustainable though the ingredients under Section 498A of IPC are available and, therefore, the appellant deserves to be extended the benefit of doubt. Therefore, he is acquitted from the charge under Section 304B of IPC. Similarly, the prosecution has failed to make out the charge under Section 201 of IPC as there is no cogent evidence in this regard and, therefore, the appellant is acquitted from the charge under Section 201 of IPC also.

36. However, the conviction of appellant under Section 498A of IPC is upheld. It is submitted that the appellant is on bail since 28.03.2008. In the bail order dated 28.03.2008, it is mentioned that by now the appellant has already undergone four and half years imprisonment and, therefore, he was released on bail. Since the appellant has already undergone the sentence of four and half years, the appellant has already undergone sentence under Section 498A of IPC given to him. Therefore, his bail bonds be discharged. Appeal is partly allowed.