ORDER Arun Madan, J.
1. The appellants (Ramanand – husband of deceased Kiran & Sarvan Devi aged 75 years – mother-in-law of deceased Kiran) by way of this appeal have challenged judgment of the learned Additional Sessions Judge Behror (Jaipur District) whereby each of them has been convicted and sentenced as under :-
(1) Under-Section 304B, IPC -Ten years’ RI with a fine of Rs. 1000/-in default further six months’ SI.
(2) Under-Section 498A, IPC – Three years’ RI with a fine of Rs. 500/- in default further three months SI.
(3) Under-Section 201, IPC –Three years’ RI with a fine of Rs. 500/- in default further three months’SI.
2. The relevant facts, briefly stated, as unfolded by the prosecution are that on April 21, 1994. Babulal Yadav (complainant) lodged a written report (Ex. PI) to Police Station Mandhan alleging therein that marriage of his sister Kiran Devi was solemnised with appellantNo. 1 Ramanand s/o Hardayal Singh about one and half years prior to the said complaint, and according to their means and status, the parents of Kiran Devi had given gifts at the time of her wedding but the parents of her husband were not satisfied with those gifts and therefore, on the one pretext of the other they used to cause harassment to the deceased. The allegations levelled against appellant No. 1 and his mother (appellant No. 2) relate to the demand of dowry. It has been alleged that whenever the appellant No. 1. who has been in army service, used to come back home on leave, invariably used to cause harassment to his wife (deceased Kiran Devi) on the issue of dowry demand, besides torture & beatings to her. The mother of Ramanand (appellant No. 1) is also alleged to have caused torture to the deceased on the demand of dowry saying that her son had not been given scooter or fridge at the time of wedding. On the day of the report appellant No. 1 had been on leave and he alongwith his mother had caused torture to the deceased and both of them have been responsible for unnatural death of his sister (deceased) and with a view to destroy the evidence they had also cremated the body of the deceased without any intimation to the deceased’s parents. It has further been stated in the report that on the fateful day in the morning at about 8-9 a.m. an Ambassador car came to their village at Nimot when they were intimated regarding demise of Kiran Devi and that parental members of the deceased were told to accompany them to the village of her in-laws. Thereupon, Kanhaiya (father). Banthi Singh (elder uncle), Ganeshi (grand father), Melaram (uncle), Bhoop Singh (brother) Rajendra Singh and one Babulal accompanied the car driver to village (Kayasa) of the in-laws of Kiran Devi where they found that Kiran Devi had already been cremated. Thereafter the report (Ex. P. 1) was lodged by Babulal on 21-4-94 atb6 p.m. On the basis of that report, police registered the crime vide FIR (Ex. P. 2) and started investigation. After usual investigation, challan was filed in the Court of the Judicial Magistrate, Behror who committed the case for trial to the Court of Sessions. The accused were charged for offences under Sections 304B, 498A and 201, IPC. In support of its case, the prosecution examined as many as nine witnesses and produced documentary evidence. The accused were examined under Section 313, Cr.P.C. and produced five witnesses in defence. The learned trial Court after hearing the parties, under the impugned judgment dated 17-1-1996 convicted and sentenced the accused appellants as indicated above. Hence this appeal.
3. Shri Samander Singh, the learned counsel for the appellants contended that as per the F.I.R. the date of the alleged death of the deceased is reported to be 21-4-1994, her marriage was solemnised with appellant Ramanand about 18 months prior to that date in the year 1992 and further the F.I.R. (Ex. P. 2) is not signed by Babulal (informant) nor police proceedings have been signed by the investigating officer, only receipt of the copy of the FIR has been given on signing by Babulal. Therefore it has been contended that the F.I.R. is not in accordance with law which creates doubt and this has got to be seen in the context of the evidence of the informant in Court wherein he admitted that report (Ex. P.I) was written when he reached Behror and that he never saw Bhoop Singh and Ram Singh (PWs) at the shop. Ramanand was arrested on the same day at the shop of Nandlal. In his statement recorded by the police under Section 161, Cr.P.C, it has been admitted that at the time of the marriage no dowry was settled and it is also noticeable that the appellant No. 2 did not participate in the marriage settlement. He has further contended that as per legal position even if the accused were to be charged for offences relating to the dowry demands punishable under Sections 304B and 498A, IPC, the prosecution must establish offence beyond reasonable doubt and the evidence should also be consistent and cogent so as to prove guilt of the accused and establish as to what were those sparing reasons for both the appellants to remain silent before solemnisation of the marriage with regard to dowry demand. It seems that they were fully satisfied and did not join any issue with members of the deceased’s parental family who were present at the time of the marriage settlement but started causing torture and harassment for demand of dowry after solemnisation of the marriage.
4. Shri Samander Singh also contended that Kaneram (P.W. 6) father of the deceased never made any complaint or raised any demand for fridge or scooter before solemnisation of the marriage or even on the date of occurrence and further that though the prosecution witnesses made reference to the dowry demand but even as per version of the prosecution witnesses, the matter was brought to the notice of the village Sarpanch and other members of the Panchayat, no complaint muchless any complaint in writing was made to the village panchayat where the deceased lastly resided nor any such matter was brought even to the notice of the parents of the deceased by Kiran, herself. On the contrary there is documentary evidence comprising of two letters (Ex. P. 4 & P. 5) which are inland letters written by appellant No. 1 to his brother Ram Singh and another by Rajendra Prasad (brother of the deceased) to the appellant No. 1. From a perusal of which it is borne out that there is no dowry demand made either by appellant No. 1 himself, or his relatives nor any apprehension regarding dowry demand has been expressed by Rajendra Prasad (brother of the deceased), rather the appellant No. 1 expressed full concern about domestic happiness and requested the parents to take full care of his wife (deceased). It is also apparent from these letters (Ex. P. 4 & P. 5) that before the alleged occurrence, appellant Ramanand was very much careful and concerned to his wife. There is not an iota of evidence of an independent witness from any public place, except parental relatives of the deceased which would reveal that there was any demand of dowry by members of her in-laws family.
5. The essential requirements so as to attract ingredients of Sections 304-B and 498-A, IPCare lacking and not attracted to the instant case. If there was any harassment or physical torture resulting to the alleged cruelty either by the husband of the deceased or by her in-laws family relatives, nothing prevented the deceased or member of her parental family to report the matter to the police.
(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; or
(b) harrassment of the woman where such harrassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security is on account of failure by her or any person related to her to meet such demand.
7. I am of the view that in the instant case, the ingred nts of Section 498-A, IPC are not attracted to the present case since there is no evidence on record led by the prosecution which would establish alleged cruelty muchless wilful act of culpability of the accused, indicating that any cruelty or harrassment was meted out to the deceased either by the accused appellants or their relatives. Thus, the allegations levelled are not of type of cruelty by the husband or his relatives which is sought to be covered by Section 498-A, IPC rather scope of those provisions has been limited to a particular type of cruelty referred to in Sub-sections (a) and (b) to Section 498-A, IPC, referred to above, which have not been established by the prosecution on rec If there was any harrassment to the deceased with regard to demand of dowry for any property or valuable security such as fridge or scooter as has been alleged by the prosecution witnesses and what were those sparing reasons for the members of the deceased family which prevented them to have lodged any report with the police prior to the death* since admittedly the period of about two years had lapsed from the date of marriage.
8. The learned counsel for the appellants then contended that it is not a case of cruelty relating to dowry demand which would be covered by Section 304-B, IPC. In my view crucial factor to be determined is that the prosecution should establish in a case where the death of a woman is caused by any burns or bodily injury or the death occurs otherwise than under normal circumstances within seven years of her marriage, that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for any demand of dowry, then such death shall be called dowry death and according to Section 304-B, IPC such husband or relative shall be deemed to have caused her death. However, it is trite law that the evidence must be consistent, cogent and directly pointer to the guilt of the accused in order to determine culpabaility of the accused relating to the dowry demand or dowry death, and merely because period of seven years have not elapsed from the date of the marriage, it would not by itself a relevant factor to presume culpability of the accused for offence publishable under Section 304-B, read with Section 498-A, IPC.
9. In the instant case, the prosecution examined in evidence Babulal Yadav (P.W. 1) (brother of the deceased), Ravindra (P.W. 2) (village Sarpanch), Banshi (P.W. 3), Chandan Singh (P.W. 4), Raj Singh (P.W. 5), Kanhiram (P.W. 6), Urmila (P.W. 7), Deenaram (P.W. 8) and Saryabhan Singh (P.W. 9). Babulal (P.W. 1) deposed that the marriage of appellant Ramanand was solemnised according to Hindu rites on 17-4-92 and thereafter till the date of occurrence 21-4-1994 his sister Kiran had visited. In cross-examination Babulal Yadav (P.W. 1) deposed that the car was sent for fetching relatives of the deceased’s parental family on the date of occurrence 21-4-1994 at 8-9 a.m. The distance between village Kayasa and Nimott is 34-35 kms and it is only after reaching Kayasa they came to know that Kiran had already been cremated and it was further brought to his notice that Kiran Devi died as a result of fall in the public well where she had gone to fetch the water. From cross-examination of this witness it is further borne out that the appellant No. 1 was present on the fateful day. In my considered view that if appellant Ramanand had instigated his wife or furiated her consequent upon dowry demand which might have ultimately resulted into her death but what were those sparing reasons for Ramanand (appellant) to be present in the village itself and not to escape from the notice of the people rather proves innocence on his part and not the culpability of the accused. The very fact that the car was also sent by the appellant’s family to fetch parental relatives of the deceased on the day of the occurrence, itself establishes the innocence of the accused since nothing would have prevented them to suppress the incident if the death of deceased had taken place in unnatural circumstances. The prosecution has miserably failed to lead any evidence on record, which would establish any active part of the accused either for instigating the deceased so as to cause her death by jumping into the well on the pretext of the dowry demand. Keeping in view facts and circumstances appearing in the evidence of the prosecution on record, it is borne out that the circumstances relating to the death of the deceased are shrouded with mystery and do not establish culpability against the accused appellants for the alleged offences. The prosecution evidence is consistent to the effect that Kirandevi had gone to the village well to fetch the water voluntarily and the well was already well equipped with electrical motor and there was no necessity to indulged in physical exercise for drawing the water from the said well.
10. From the perusal of statement of Ravindra (P.W. 2) Sarpanch of Village Nimott it is clear that his evidence is based on hearsay information having come to his knowledge from third person regarding the occurrence. This witness despite being Sarpanch had made no efforts to ignore about the matter particularly when it was brought to his notice regarding alleged demand of dowry by members of the deceased its parental family. In cross-examination this witness has deposed that he had not received written complaint from any members of parental family of the deceased. His evidence is totally unreliable based on hearsay information on the basis of which it was not proper for the trial Court to have convicted the accused.
11. Likewise the evidence of other rest of the prosecution witnesses for the death of the deceased is hearsay. The witnesses appear to have been made to give out parrot like statement regarding alleged dowry demand at the instance of the relatives of the deceased. The prosecution witnesses if despite having been aware of the alleged dowry demand, pleaded ignorance for the occurrence and even the events which resulted in the deceased having jumped into the well, have not been disclosed. If there was dowry demand by the appellants or by any of the relatives then what were those sparing reasons which prevented them for inquiring either from the deceased or her in-laws as to the dispute at issue so that they could have made sincere efforts to arrive at any amicable settlement between the parties as to the dowry demand. The prosecution evidence is totally silent on this aspect and the prosecution has miserably failed to lead plausible and credible evidence which would establish culpability of the accused appellants for the alleged offences. The law is well settled that where who two are possible one pointing to the guilt and other to the innocence of the accused then it would be unsafe to convict the accused rather benefit of doubt should be extended to the accused in such circumstances.
12. I am further of the view that the prosecution has miserably failed to explain as to what were those sparing reason for the deceased not to have immediately brought to the notice of her mother regarding the alleged dowry demand, if any, which is most unnatural and improbable conduct of the deceased. Normally it is expected of a married daughter to immediately repose confidence in her mother if she faces any harassment at the instance of her in-laws which the prosecution in the instant case has miserably failed to explain, rather the mother of the deceased has not been examined as witness by the prosecution as she would have been most natural, reliable and credible witness In these circumstances, the conclusions arrived at by the learned trial Court are based on conjectures and surmises and even presumption as per Section 304-B, IPC as to the death of the deceased having taken place within seven years of the marriage is by itself not sufficient to determine the culpability of the accused. In the absence of independent, corroborative and reliable evidence, which is altogether lacking in the instant case, the possibility of the deceased taking extreme steps by jumping into the well are shrouded with mystery and there are missing links in the chain of circumstantial evidence which is wholly untrustworthy and incredible. The crucial aspect whether the death was accidental or as a result of her being pushed into the well by any person has not been explained by the prosecution. Hence no presumption could be drawn that the events of the death as a result of coercion and torture to the deceased resulting in taking extreme steps have remained unexplained in the prosecution evidence on record, rather from the defence evidence it stands proved that the appellants had not made any dowry demand and the couple were leading happy life. Even there is no evidence of any neighbour from which it could be established that the deceased was being harassed for dowry demand. From the evidence of Babulal Verma (D.W. 2) Sub-Engineer RSEB, it is brone out that there has been no electricity connection in the name of the appellants family members inasmuch as in the village itself electricity supply was commenced since June, 1995 i.e. after the date of occurrence. In these circumstances, the allegation of dowry demand pertaining to fridge is altogether ruled out. This shows that the entire story is concocted and full of imaginary version of the prosecution. I am fortified by the observations of the Apex Court in Salamat Ali v. State of Bihar AIR 1995 SC 1863, wherein it has been held that in the absence of clear and pointed evidence it would be unsafe to maintain the conviction of the accused on vague allegations.
13. In Salamat Ali v.state of Bihar (supra) the Apex Court convicted the husband (accused) under Section 304-B, IPC simpliciter, without aid of Section 34, holding that the demand of scooter predominantly must have been raised by the husband; and that it cannot be expected that the father-in-law would be demanding a scooter for himself or that the mother-in-law needed it for her use. However, the Apex Court held that the allegations against the appellants are general in nature attributed to the husband’s family and they have been identified because they were members of his family and it is not clear on the record as besides them who else were members of the family. In these circumstances, the Apex Court held that in the absence of clear and pointed evidence it would be unsafe to maintain the conviction of the parents on vague allegations.
14. As a result of the discussion made herein above, this appeal is allowed. The judgment dated 17-1-1996 passed by the Additional Sessions Judge, Behror in Sess. Case No. 21 /94 is set aside and consequently the impugned conviction and sentence awarded against the appellants (Ramanand & Smt. Sarvan Devi) are quashed & set aside. The appellants are acquitted of the offences under Sections 304-B, 498-A & 201, IPC. Appellant No. 1 is in jail, therefore, he be set at liberty forthwith if not wanted in any other criminal case. Appellant No. 2 is on bail, therefore, her bail bonds stand discharged.