MANMOHAN, J:It is easy for a person in Delhi to reach from one place to other within a hour and the case of the accused is not of that, they were far away from Delhi and it was not possible for them to reach at house on the day of incident.Rather, both the accused were in Delhi and there is no evidence of time of leaving their house in the morning.In the prosecution evidence it is already deposed by the witnesses that accused persons have harassed the deceased in connection with demand of dowry and as the marriage was performed on 13.12.2010 and the death of the CRL.A.606/2018 & Crl.L.P.260/2018 Page 3 of 23 deceased has been caused within one month from the date of marriage.The prosecution witnesses has particularly deposed regarding the demand of dowry, in the shape of share from the Malka Ganj property, where the deceased and her sisters were having share of one room and deceased before her death was asked to sell the property.A.606/2018 & Crl.He did not disclose about harassment or demand of dowry of Rs. 10 lakhs or cruelty to his daughter.Even if it is assumed that the appellant was under the shock of death of his daughter or that appellant came to know about demand of Rs. 10 lakhs after cremation of his daughter, as alleged by him in his statement in the Court, he should have made statement immediately or within one or two days thereafter or should have given some complaint in writing to the police or SDM.It is also relevant to note that no complaint regarding harassment, cruelty or demand of dowry was lodged by the deceased Geeta during her marital life or shortly thereafter.It is also pertinent to note that at no point in time, in his statement before the SDM on 22th September, 1999 exhibited as Ex.PW9/B and his statement under Section 161 Cr.However, the testimonies of Pinky (PW-3) and Rakhi (PW-4) do not inspire confidence inasmuch as they are not corroborated.In fact, other relatives of the deceased, namely, sister Kusum (PW-1), uncle Ganesh Lal (PW-2) and aunt Phoolwati (PW-13) have deposed to the contrary inasmuch as they have not mentioned any demand for dowry by the appellant-A.606/2018 & Crl.L.P.260/2018 Page 16 of 23The relevant portions of the testimonies of sister Kusum (PW-1), uncle Ganesh Lal (PW-2) and aunt Phoolwati (PW-13) of the deceased are reproduced hereinbelow:-I and Tai Ji enquired from Anju as to why she was sust from 06.01.11 to 09.01.11, however, she replied sasural main sab kuch theek thak hai......"B) Testimony of Uncle Ganesh Lal (PW-2) ".......At the time of marriage, no demand of dowry was made from me by accused Rohit @ Sunny @ Sandeep or any of his family member.......Q. When Anju visited your house after her marriage, did you feel that Anju was in any trouble / problem?Yes, I observed that she was lazy (sust thi) On this, I asked my niece that is she having any problem to which she replied that she is living comfortably at her matrimonial home......"C) Testimony of Aunt Phoolwati (PW-13) "..........When Anju came to my house after 4-5 days of her CRL.A.606/2018 & Crl.L.P.260/2018 Page 17 of 23 marriage she did not tell me that any cruelty being committed upon her in respect of demand of dowry in her matrimonial home as to sell out the parental home and give the share to them.A.606/2018 & Crl.However, the appellant- convicts have proved by leading defence evidence that they were not present at their house during those hours.The CDR exhibited by Israr Babu (DW-6) of both the appellant-convicts and the testimonies of Hitesh Sahni (DW-1), Rohit Goyal (DW-2) and Hari Ram (DW-3) prove that the appellant- convicts were not at their residence on 10th January, 2011 at the time of the incident.The relevant portion of the testimonies of Hitesh Sahni (DW-1) and Rohit Goyal (DW-2) are reproduced hereinbelow:-On 10.01.2010, I had sent accused Sandeep with my other employee Rohit Goel to pick up some property documents from Mindray Medicals which is based in Netaji Subhash Place, New Delhi.He requested me to start for my home immediately or he may be relieved as he has an emergency at his home.Since our work of the day had almost finished, we immediately packed up and started for home in the car being driven by Sandeep.On leaving us at our home in Paschim Vihar, Sandeep had immediately left for his home on his bike which he had parked outside my house.Throughout our return journey of about 45 minutes, Sandeep made some calls and also received few calls and therefore almost kept on talking on his mobile phone.We could assess that there was some serious issue in his family for which reason, I could not stop him from talking on mobile while driving otherwise I would have stopped him."A.606/2018 & Crl.A.606/2018 & Crl.L.P.260/2018 Page 23 of 23While Crl.A.606/2018 has been filed by appellant-convict Sandeep @ Sunny @ Rohit (husband of the deceased) and appellant-convict Deepak (brother-in-law of the deceased) challenging the judgment dated 31st January, 2018 passed by the Additional Sessions Judge-04, North-West CRL.A.606/2018 & Crl.L.P.260/2018 Page 1 of 23 District, Rohini Courts, Delhi in Case No.52035/2016 arising out of FIR No.6/2011 registered with Police Station Aman Vihar convicting them under Sections 304B/34 IPC and sentencing them to rigorous imprisonment for ten years with fine of Rs. 15,000/- , as well as under Sections 498A/34 IPC for which they were sentenced to rigorous imprisonment for three years with fine of Rs. 5,000/-; Crl.L.P. 260/2018 has been filed by the State, against the same judgment challenging the acquittal of the appellant-convicts under Section 302 IPC.A.606/2018 & Crl.L.P.260/2018 Page 1 of 23CASE OF THE PROSECUTIONThe case of the prosecution in brief is that appellant-convict Sandeep had married Anju (deceased) on 13th December 2010 and that on 10th January 2011 i.e. within a month of her marriage, she was found dead at her matrimonial home.The FIR bearing No. 6/2011 under Sections 302, 304B and 34 of the IPC was registered with Police Station Aman Vihar.After the investigation, the appellant-convicts were arrested on 5th April, 2013 and a charge sheet under Sections 302, 304B, 498A and 34 of the IPC was filed against them.L.P.260/2018 Page 3 of 23xxxx xxxx xxxx xxxxApart from the facts discussed above, I deem it appropriate to discuss the conduct of accused persons also before coming to the conclusion.As it is established on record by the prosecution witnesses, particularly PW 1 that she received a telephonic message from the sister of accused in the night at around 11:00 PM on 10.01.2011 regarding the illness of the deceased.No efforts has been made by them to took the deceased to a Doctor at the earliest.Even no message to the Police had been given in the 100 number at the night.The DW 5 has deposed that they remained in the house throughout a day and they were aware that the deceased was not feeling well.No such well being of the deceased was asked by the accused persons or their family members in the day time.They were silent throughout the period and did not made any efforts to know the reality or truth regarding the death of deceased Anju.This also casts a doubt on their role.A.606/2018 & Crl.L.P.260/2018 Page 4 of 2374. ....... Though, there is no direct evidence to establish on record by the prosecution that the deceased has been murdered by the accused persons.Therefore, in absence of any direct evidence regarding strangulation and causing death of deceased Anju therefore, they can not be convicted for the offence under Section 302 IPC.However, there is sufficient material available on record which has been proved and corroborated by the prosecution witnesses by leading oral and medical evidence.Therefore, I am of the considered opinion that prosecution has been able to prove the case against the accused persons beyond any reasonable doubt and there was a rebuttable presumption under Section 114 B of Evidence Act as well as under Section 304 B IPC, which is not being rebutted by the accused persons.The death of deceased has been caused in unnatural manner within seven years of her marriage as provided under Section 304 B IPC and here the death has been cause within one month of the marriage and there are allegations of demand of dowry and harassment on account of demand of dowry.Let they be heard on the quantum of sentence."ARGUMENTS ON BEHALF OF THE APPELLANT-CONVICTSMr. Mohd. Ahmed, learned counsel for the appellant-convicts stated that the marriage between the deceased and appellant-convict Sandeep was a love marriage.He further stated that no cruelty was inflicted upon the deceased as there was no demand for dowry by the appellant-convicts and that she was comfortable in her matrimonial home.A.606/2018 & Crl.L.P.260/2018 Page 5 of 23He contended that even the statements made by the sister of the deceased, Kusum (PW-1) and their uncle, Ganesh Lal (PW-2) to the SDM (PW-24) on the day after the death of the deceased i.e 11th January 2011 did not contain any allegations of demand for dowry and the same was corroborated by the testimony of the SDM (PW-24).He emphasised that as there was no allegation against the appellant-convicts they were not arrested for more than two years after the death of the deceased.Learned counsel for the appellant-convicts contended that the allegations with regard to demand for dowry by the appellant-convicts were for the first time made in vague statements to the SDM (PW-19) by two other sisters of the deceased - Pinky (PW-3) and Rakhi (PW-4), nearly two years after the death of the deceased.He pointed out that the sisters of the deceased while getting their statements recorded under Section 161 Cr.P.C., added a new allegation that on 1st January, 2011 when they had gone to the matrimonial house of the deceased, she had informed them that there was a dowry demand with regard to her share in her ancestral one room house and consequently, the appellant-convicts were arrested.It is only for the first time on 22nd September, 1999 (after about 37 days of incident) that the appellant and his wife Suman Gupta made statement to SDM and made allegations regarding harassment and demand of dowry.A.606/2018 & Crl.L.P.260/2018 Page 6 of 23Further, the appellant has not alleged that any demand was made from him rather Suman Gupta (PW-12) has deposed that Satpal, uncle of Rajesh Gupta, his mother Pushpa Devi and Suman (sister-in-law) used to demand dowry from the deceased Geeta.PW-12 has deposed that after three days of marriage, her daughter came to her house and disclosed that she was being harassed and money was being demanded.L.P.260/2018 Page 8 of 23L.P.260/2018 Page 9 of 23ARGUMENTS ON BEHALF OF THE APP FOR STATEPer contra, Ms. Aasha Tiwari, learned APP for the State contended that as per the Post Mortem Report (Ex. PW 12/A) the cause of death of the deceased was asphyxia consequent to obstruction of the airway by strangulation of the neck and Dr. Manoj Dhingra, (PW-12) who conducted the post mortem on the body of the deceased had opined that "the injuries on the neck were sufficient to cause death in the ordinary course of nature".She pointed out that as per the Post Mortem Report, all the injuries on the body of the deceased were ante mortem in nature and fresh in duration.She also stated that as per the subsequent opinion on the Post Mortem Report, the injuries were not self inflicted and there was least likelihood of the deceased strangulating herself.12. Learned APP for the State further stated that the dead body of the deceased was found in her matrimonial house itself and the sister of the appellant-convicts, Seema (DW-5) had deposed that on the day the deceased had died, she along with her mother and sister remained in the house throughout the day and no outsider had entered the house.She contended that in view of the aforesaid, the burden was on the appellant-convicts to explain how the death of the deceased had happened and they had failed to discharge the said burden.L.P.260/2018 Page 10 of 23 and Rakhi (PW-4) had deposed that the appellant-convicts had harassed the deceased in connection with a demand for dowry.She pointed out that they had deposed that the demand for dowry was specifically in regard to the deceased's share in the ancestral property situated in Malkaganj and that the deceased before her death was asked to sell the property.A.606/2018 & Crl.L.P.260/2018 Page 10 of 23She pointed out that it was not the appellant- convicts' case that they were far away from Delhi and that it was not possible for them to reach their house on the day of the incident.She emphasised that both the appellant-convicts were in Delhi and it is very easy for a person in Delhi to reach from one place to another within an hour and that there was no evidence of the time on which the appellant-convicts had left their house in the morning on the date of the incident.Learned APP for the State also stated that as per the evidence on record, a telephone call was made to the sister of the deceased Kusum (PW-1) at about 11 pm on 10th January, 2011 to inform her that the deceased was not waking up.PW 2's evidence that he met Archana at their parental home on 9-8-1997 and that Archana informed him about the demand of Rs 5,00,000 and cruelty meted out to her and that he proceeded to the house of the appellants to settle the dispute amicably is quite natural and inspires confidence.PW 2 acted like a loving brother and probably he did not want to give tension to his old parents and on seeing the urgency of the matter, went to the appellants' house to convince them.By perusal of evidence of PW 2, it is seen that he remained consistent throughout his cross-examination and nothing CRL.A.606/2018 & Crl.L.P.260/2018 Page 13 of 23 substantial was elicited to discredit his version.Merely because PW 2 has not produced documents showing the permission granted to him to be away from the headquarters Tehri from 7- 8-1997 to 10-8-1997, version of PW 2 cannot be doubted.The reasons stated by PW 2 for his stay in hotel is quite convincing and the contention assailing the credibility of PW 2 was rightly rejected by the trial court and the High Court.A.606/2018 & Crl.L.P.260/2018 Page 13 of 23It has been further contended on behalf of the appellants that there was delay in recording the statement of PW 2 by the investigating officer and therefore his evidence should be viewed with suspicion, especially when he did not disclose about the alleged dowry demand before he left for Dehradun or till his statement was recorded by the police.In this context as pointed out earlier, PW 2 went to Mumbai for treatment of his wife and on 14-8-1997 he was informed about the death of Archana and on the next day he returned to Delhi by air and from Delhi he reached Dehradun by taxi.Learned APP vehemently denied that the prosecution had withheld the best evidence.She referred to the testimonies of the investigating officer Insp.Vijender Pal (PW-28) and Israr Babu (DW-6).The relevant portions of the said testimonies are reproduced hereinbelow:-A.606/2018 & Crl.This information was also furnished to me by the service provider through email.I do not remember now the name of service provider.I had send the said request to service provider through E-mail, copies of said e-mails were not made part of record....."PP for the State.It is correct that the updated Cell ID chart Ex.I was able to retrieve the CDR Ex.DW6/A and Ex.DW6/D after about 5-6 years because the same must have been generated initially on the request of any investing agency....."The investigation was also stated to be defective since the gun was not sent for forensic test.L.P.260/2018 Page 15 of 23COURTS REASONING IN VIEW OF TESTIMONIES OF THE SDM (PW-24) (WHO IS AN INDEPENDENT WITNESS) UNCLE GANESH LAL (PW-2), AUNT PHOOLWATI (PW-13) AND SISTER KUSUM (PW-1), (WITH WHOM THE DECEASED HAD STAYED FROM 06TH JANUARY, 2011 TILL 09TH JANUARY, 2011), THIS COURT IS OF THE OPINION THAT THE TESTIMONIES OF TWO OTHER SISTERS I.E. PINKY (PW-3) AND RAKHI (PW-4) ARE CONTRARY TO THE EVIDENCE ON RECORD, UNCORROBORATED AND AN AFTERTHOUGHT.ACCORDINGLY, THE TESTIMONIES OF PINKY (PW-3) AND RAKHI (PW-4) CANNOT BE RELIED UPON.CONSEQUENTLY, STATUTORY PRESUMPTION FOR DOWRY DEATH UNDER SECTION 304B IPC CANNOT BE DRAWN AGAINST THE APPELLANT-CONVICTS.L.P.260/2018 Page 17 of 23My niece Anju did not tell me that on 1.1.2011, her sisters Pinki and Rakhi went to her matrimonial home for giving new year wishes.(Vol.Nobody went to house of Anju after her marriage).Anju had not told me that on the said new year day, Sunny and Deepak had threatened Pinki and Rakhi to kill Anju if money after selling the parental house is not given to them as dowry.It is correct that I had/have cordial relations with all sisters namely Anju, Pinki and Rakhi and they used to share their happiness and sorrow with me.Till 14.1.2011, when my statement was recorded by the IO, Pinki and Rakhi did not tell me about the incident that took place on new year day at matrimonial house of Anju.I met Pinki and Rakhi, after the marriage of Anju, on the day of death of Anju.Pinki and Rakhi used to talk me on telephone.(Vol.I do not remember whether they had called me before the death of Anju.) After 14.1.2011 till today, Pinki and Rakhi had not told me that accused persons were demanding money after selling share of deceased in her parental house......"(emphasis supplied)In fact, perusal of the paper book reveals that on 11th January, 2011 the SDM (PW-24) had recorded the statements of sister of the deceased, Kusum (PW-1) and uncle Ganesh Lal (PW-2) and they had not mentioned about the demand for dowry.The SDM (PW-24) had also asked other relatives to come forward to make statements, but no one including Pinky (PW-3) and Rakhi (PW-4) came forward.The relevant portion of the testimony of the SDM (PW-24) is reproduced hereinbelow:-No one else including any other sister of deceased volunteered to get her statement recorded before me.Neither any complaint was given to me by any relative of the CRL.A.606/2018 & Crl.L.P.260/2018 Page 18 of 23 deceased nor any request was made for recording their statements....."A.606/2018 & Crl.L.P.260/2018 Page 19 of 23Further, the prosecution has failed to prove that the deceased was subjected to cruelty by the appellant-convicts or that they had made demands for dowry soon before the death of the deceased or at any time prior.After taking those documents, CRL.A.606/2018 & Crl.L.P.260/2018 Page 20 of 23 both of my aforesaid employees delivered the same documents to Sh.Harvinder Singh, property broker in Bhera Enclave, New Delhi on my instructions.They had thereafter returned back to our office in Connaught Place.In the evening at about 7:00 pm, I had received a call from the accused Sandeep in a very shocking state.Accordingly, Crl.A 606/2018 is allowed and the impugned judgment of conviction and order on sentence are set aside.The appellant-convicts are acquitted for the offences punishable under Sections 498A, 304B and 34 IPC and are directed to be released forthwith.MANMOHAN, J SANGITA DHINGRA SEHGAL, J OCTOBER 24, 2019 rn CRL.

Sections cited: Section 304B in The Indian Penal Code, Section 302 in The Indian Penal Code, Section 34 in The Indian Penal Code, Section 498A in The Indian Penal Code, Section 304 in The Indian Penal Code