1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. CRIMINAL APPEAL NO. 577 OF 2009. APPELLANTS: 1 Kailash S/o Baluji Lande, aged 25 years, Occu. Nil, 2 Sau. Satyabhama W/o Baluji Lande, aged 41 years, Occupation- Agriculturist, Both are resident of Police Station, Hiwarkhed, Tq. Khamgaon, District Buldhana. -VERSUS- RESPONDENTS: State of Maharashtra, Police Station Hiwarkhed, Tq. Khamgaon, Distt. Buldhana. Shri A. S. Kilor, Advocate for the appellant. Shri V. A. Thakre, APP for the respondent CORAM: A. H. JOSHI, J. DATED: 03rd MAY 2010. ORAL JUDGMENT : 1. This is an appeal arising out of the judgment and order dated 27-11-2009, passed by Additional Sessions Judge, Khamgaon in Sessions Case No.7/2008. 2. The appellants and two other accused namely Narayan and Baluji were charged for the offence punishable under Section 498-A & 304-B read with Section 34 of the Indian Penal Code. 3. The accused appellants were convicted and sentenced 2 to suffer R.I. for seven years for the offence punishable under Section 304-B of I.P.C. and further sentenced to suffer R. I. for two years and to pay fine of Rs.500/- and i/d to suffer R. I. for one month for the offence punishable under Section 498-A of Indian Penal Code. 4. The prosecution has examined in all 8 witnesses. Four witnesses are the father, brother, sister and one of the cousins of the deceased Ganga, and other witnesses are panch and police witnesses. 5. The prosecution case, as to dowry related demand,, consequent harassment of deceased Ganga and her committing suicide, is based on the depositions of PW-1 to 4. 6. Heard learned Advocate Mr. A. S. Kilor for the appellant and the learned APP Mr. V. A. Thakre for State, and perused the record. 7. Learned Advocate Mr. Kilor has advanced his submission urging for acquittal on the following points: (a) Even if the version of all four prosecution witnesses as to each word and sentence therein to be true, even then the prosecution has not proved that: (i) The amount demanded by the accused persons was towards dowry. (ii) That due to non payment of dowry, the deceased was tortured. (iii) The nature and degree of torture offered by the accused persons to the deceased was of 3 such extent and magnitude that thereby the deceased Ganga was driven to commit suicide. (b) The witnesses are all of blood relations of the deceased on maiden side. (c) It is not the prosecution case that no outsider had occasion to see the harassment. (d) No outside witnesses such as neighbour etc. are examined. 8. The learned Advocate Mr. A. S. Kilor has placed reliance on the following judgments: [1] 2007 ALL SCR 1596, Biwajit Halder @ Babu Halder & others Vs. State of W. B. [2] Appasaheb & Anr. Vs. State of Maharashtra, Crl. Appeal No.1613 of 2005, decided on 5-1-2007 by Hon'ble Supreme Court of India. [3] (2003)12 Supreme Court Cases 368, Sakharam and another vs. State of Maharashtra. [4] 2010 ALL SCR 213, Bhairon Singh Vs. State of M.P. 9. Learned APP has argued in support of the conviction. According to him, whatever material has come on record in the form of oral testimony of prosecution witnesses, is adequate to answer the ingredients of Section 498-A and 304-B of the Indian Penal Code. 10. This Court has minutely scrutinized the testimonies of the prosecution witnesses. What is seen in the testimonies of all these witnesses is that the accused no.3 used to express her disappointment on account of non payment of Rs.35000/- for 4 purchase of motor cycle and she declined to come to meet or to send deceased to her maiden house. 11. No other statement than one referred to herein before is seen in the version of these witnesses. Any evidence of cruelty is not brought. The version describing its treatment is vague and does not constitute story & facts consisting demand and cruelty due to non fulfillment of said demand. 12. In order to attract the presumption under Section 113-B of Evidence Act, the prosecution has to prove the following: (1) The death of a woman should be caused by burns or fatal injury or otherwise than under normal circumstances; (2) Such death should have occurred within seven years of her marriage; (3) She must have been subjected to cruelty or harassment by her husband or any relative of her husband; and (4) Such cruelty or harassment should be for or in connection with demand for dowry. 13. It is seen that item Nos.3 and 4 amongst the points noted in foregoing para are not proved by the prosecution. Strict proof of these ingredients is of no excuse. 14. Perused the testimonies of defence witnesses. These testimonies are as vague as the testimonies of prosecution witnesses and any discussion thereon is not worth of it. 5 15. Considering the fact that the prosecution has failed to bring evidence of cruelty on account of dowry related demands, it would not be necessary to discuss the citations relied upon by the appellants. It shall suffice to mention that those are rightly relied upon. 16. In the result, this Court finds that the prosecution has failed to prove the ingredients of the charge under Section 498-A and 304-B read with Section 34 of the Indian Penal Code. 17. The conviction ordered by the learned Sessions Judge is moral perceptible of the fact of the matter and it does not conform to the legal requirements. 18. In the result, appeal is allowed. 19. The judgment and order passed by the Additional Sessions Judge, Khamgaon in Sessions Case No.7/2008 dated 27-11-2009, convicting the accused - appellants for the offences punishable under Section 304(B) of I.P.C. and under Section 498-A read with Section 34 of the I.P.C. is set aside. 20. The appellants be set at liberty forthwith unless required in any other case. JUDGE //MULEY// 6