MATHUR, J. - (1.) THIS appeal is directed against the judgment dated 3. 12. 2002 passed by the Additional Sessions Judge (Fast Track), Nagaur convicting the appellants Hira Ram and his wife Smt. Rukma for offence under Section 304-B I. P. C. and sentenced to imprisonment for life and to pay a fine of Rs. 25000/-; in default of payment of fine to further undergo 2 years simple imprisonment. They have also been convicted for offence under Section 498a I. P. C. and sentenced to 3 years simple imprisonment and to pay fine of Rs. 5000/-; in default of payment of fine to further undergo 1 month simple imprisonment. Both the sentenced have been ordered to run concurrently.
(2.) THE prosecution case as unfolded during the trial is that on 19. 1. 96 D. W. 3 Trilok Ram submitted a written First Information Report Ex. P12 at Police Station, Jaswantgarh stating inter alia that his uncle's daughter Buli was married to one Harphool son of appellant Hira Ram of village Laidy. Last evening he was informed that while no member of the family was in house Buli accidentally slipped in the tank and died on account of drowning. THE appellants came to know about the incident when they returned from the field. THE information of the incident was given to the parents of Buli. It was further stated that Buli was married to Harpool about 4 years back, she was 19 years old sick and issueless lady. On this information police commenced inquiry under Section 174 of the Code of Criminal Procedure. No external injury was found on the dead body. In the opinion of the Medical Board Mst. Buli died of asphyxia due to drowning. On 17. 1. 97 P. W. 18 Mst. Dhapu submitted a typed written report at Police Station, Jaswantgarh stating inter alia that his daughter Mst. Buli was married to Harphool son of appellant Hira Ram in village Laidy. She was being harassed for not bringing sufficient dowry. Father-in-law, mother-in-law and the sister-in- law used to threaten her to bring Scooter, Freeze, Cooler and Rs. 50,000/- else she would not be kept in matrimonial home. The appellant Hira Ram used to tease her with bad intention. Her husband P. W. 7 Uma Ram alongwith, P. W. 9 Bhanwar Lal, P. W. 21 Badri Prasad and P. W. 1 Asu Singh implored mercy from the appellant Hira Ram but he did not yield. It was further alleged that there were also complaints against appellant Hira Ram of teasing his elder daughter-in-law P. W. 4 Radha with bad intention. She being tired of his conduct, settled in her parents house. It was further alleged that the appellants Hira Ram and Rukma murdered Buli by drowning in the tank on 18. 12. 96. On receiving information from Triloka Ram her husband went to village Laidy. Seeing the dead body of his daughter he became unconscious. While he was lying unconscious the accused persons got his thumb impressions on certain papers. The delay in filing the First Information Report was due to the mental illness of her husband. On this information police registered a case and proceeded with investigation. It further appears that while investigation was pending efforts were made to settle the matter in a panchayat. The meeting was convened on 17. 3. 99 under the chairmanship of P. W. 26 Karan Singh. The matter was heard by a collegium of 7 panchas. The appellant Hira Ram did not attend the panchayat meeting. The panchayat gave its judgment after a month. In the opinion of the panchayat Mst. Buli died because of the misconduct of her father-in-law Hira Ram. The case was transferred to the C. I. D. (CB) for investigation. The appellants could not be arrested as such police filed a charge-sheet on 12. 5. 98 against them under Section 299 Cr. P. C. for offence under Section 498a & 304-B I. P. C. in the court of Judicial Magistrate First Class, Ladnu. The appellants surrendered before the Trial Court on 24. 8. 98. Thus, the police filed a supplementary charge-sheet against the accused persons. On being committed the case was transferred to the court of Additional Sessions Judge, Nagaur Camp Deedwana for trial. Eventually the case was transferred to the court of Additional Sessions Judge (Fast Track), Nagaur. The appellants denied the charges levelled against them and claimed trial. The prosecution in support of the case examined 26 witnesses. The accused persons in their statement under Section 313 Cr. P. C. denied the correctness of the prosecution evidence appearing against them. The appellant Hira Ram stated that on the date of incident i. e. , 18. 12. 96 he along with his wife Rukma had gone to the field leaving behind their daughter-in-law Buli Devi. At about 8:00 P. M. they returned from the field. Inspite of repeated calls there was no response from inside the house. A young boy named Sharvan Kumar climbed on the wall and made entry in the house and opened the gate. Because of darkness with the help of torch they looked inside the tank and found that Mst. Buli was lying dead. He immediately sent a message to her father namely Uma Ram. He also called Asha Ram, Triloka Ram and Ladu Ram the relatives of deceased Buli Devi. It was unanimous opinion that Buli Devi died because of the accidental slip in the tank. Triloka Ram submitted a report of the incident at the Police Station, Jaswantgarh on the next day. The police visited the site. The dead body was taken out from the tank. All the necessary formalities were completed. The Circle Officer and the Sub Divisional Magistrate, Deedwana also arrived on the spot. The statement of Uma Ram was also recorded vide Ex. D2. The parents of the deceased did not suspect any foul in the death of Buli Devi. However, after 20 days Uma Ram the father of the deceased sent a message through Triloka Ram to arrange for a sum of Rs. 50,000/- the amount which he incurred in the marriage. The offer was not accepted by him. After some time Uma Ram raised the demand to the tune of an amount of Rs. 1 Lakh. As he did not arrange the money demanded by Uma Ram he lodged a false and fabricated case against him. The statement of second respondent Rukma is almost in the same line. In support of the version the appellants examined D. W. 1 Sharwan Ram, D. W. 2 Mal Chand and D. W. 3 Triloka Ram. The Trial Court found the prosecution case proved and as such convicted and sentenced the appellants in the manner stated above. Challenging the conviction and sentence it is contended by Mr. G. R. Punia learned counsel for the appellants that there has been an inordinate delay of almost one month in lodging the First Information Report, which has not been satisfactorily explained. This raises serious suspicion about the correctness and truthfulness of the prosecution case. It is further submitted that the conviction is solely based on the testimony of P. W. 21 Badri Prasad whose statement has been recorded almost after a month of the incident. It is further submitted that there is not a fringe of evidence that deceased Buli was subjected to cruelty or harassment by the appellants in connection with any demand of dowry soon before her death. Thus, the basic ingredients to constitute dowry death under Section 304b I. P. C. are conspicuously missing. Thus, according to the learned counsel it is not at all a case of dowry death and that provision of Section 113b of the Indian Evence Act raising presumption against the appellants cannot be pressed into service. On the other hand the learned Public Prosecutor sought to explain the delay in filing the F. I. R. on twin grounds. Firstly the father of the deceased P. W. 7 Uma Ram could not bear the shock of the tragic death of his young daughter and he become mentally disturbed. Secondly at the instance of the accused persons D. W. 3 Triloka Ram a close relative of the deceased was pressurizing them not to take matter to the police. He succeeded in misdirecting the victim family to the extent that the initial investigation could not proceed in right direction. Thus, according to the learned Public Prosecutor the delay has been satisfactorily explained and the same is not at all fatal. He referred to the statements of P. W. 7 Uma Ram and P. W. 18 Mst. Dhapu, P. W. 21 Badri Prasad, P. W. 2 Purna Ram, P. W. 10 Bhanwar Lal and P. W. 11 Ramu Ram, P. W. 13 Moola Ram, P. W. 24 Smt. Kamla and P. W. 20 Ladu Ram to show that the deceased Buli was subjected to cruelty and harassment by the appellants in connection with their demand of dowry. The learned Public Prosecutor in addition to the aforesaid witnesses has also referred to the statements of P. W. 3 Asha Ram and P. W. 4 Radha, P. W. 12 Shanta and P. W. 16 Ram Goptal to show that the appellant Hira Ram is a person of bad character. He has been by his conduct seeking sexual favour from his deceased daughter-in-law. It was also a major factor contributing the unnatural death of deceased Buli. He has also referred to the statements of P. W. 19 Bheem Singh, P. W. 23 Mala Ram and P. W. 26 Karan Singh to assert the fact that after the incident a panchayat of more than thousand people had assembled and a group of 7 persons was authorized to find out truth in the matter. The panchayat consisting of 7 persons submitted a report holding that the misconduct of the appellant Hira Ram was the reason of unnatural death. It is also asserted by the learned Public Prosecutor that the size of the mouth of the tank was very small (13 Inches) and as such there could be no possibility of accidental slip of the deceased in the tank. Thus, according to the learned Public Prosecutor the prosecution has successfully proved the death of Buli as occurred within 7 years of marriage in abnormal circumstances and soon before her death she was subjected to cruelty and harassment in connection with the demand of dowry. We have scanned, scrutinized and analyzed the evidence and considered the rival contentions. The demand of dowry is devouring lives of young girls, who marry with high hopes of having a heavenly abode in their husband's house. Attempt was made to control the deep rooted social evil by enacting Dowry Prohibition Act, 1961. However, as the evil could not take care of by this soft statute the Penal Code was amended first by inserting Chapter XXA (containing only 498a) in it, by the Criminal Law (Second Amendment) Act, 1983 and then by insertion of Section 304b. By the Dowry Prohibition (Amendment) Act, 1986. Section 498a I. P. C. seeks to protect a married woman from being subjected to cruelty by her husband or his relatives. Section 304b is aimed at those who indulge in dowry death. To give teeth to these provisions section 113a was inserted in the evidence Act permitting court to presume having regard to circumstances of the case, that suicide by woman was abetted by her husband or his relatives. Similarly, Act of 43 of 1986 inserted Section 113 B in the Evidence Act requiring some presumption to be drawn in case of dowry death. Section 304b reads as follows:- " 304-B. 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 sub-section, "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. "
(3.) ANALYZING the provision recently the Apex Court in Sunil Bajaj vs. State of M. P. Reported in 2001 (9) SCC page 417 has pointed out the following essential ingredients of offence under Section 304b I. P. C. " (1) the death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances; (2) such death must have occurred within 7 years of her marriage; (3) soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband; (4) such cruelty or harassment must be for or in connection with demand of dowry. " The Court held that it is only when the aforesaid ingredients are established by the acceptable evidence such death shall be called "dowry death" and as such husband or his relative shall be deemed to have caused her death. Thus, in case of offence under Section 304b I. P. C. an exception is made by deeming provision as to the nature of death as "dowry death" and that the husband or the relatives as the case may be is deemed to have caused such death, even in the absence of evidence to prove these aspects but on proving the existence of the ingredients of the said offence by convincing evidence. At the cost of repetition it must be noticed that the expression "soon before" is relevant when Section 113b of the Evidence Act and Section 304b are pressed into service. The burden is on the prosecution to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Thus, it is not enough that harassment or cruelty was caused to the woman for demand of dowry, if Section 304b I. P. C. is pressed, it must have happened soon before the death. The said expression is no doubt elastic in nature and can refer to period either immediately before her death or seven a few days or even a few weeks. However, proximity with her death is the pivot indicated by the expression. In the instant case as far as the first ingredient is concerned, it is not in dispute that the deceased Buli died of homicidal death otherwise than under normal circumstances. P. W. 17 Dr. Bhanwar Singh has stated that he was one of the member of the Medical Board which conducted autopsy on the dead body of deceased Buli. He has proved the post-mortem report Ex. P11. In the opinion of the Board the cause of death was asphyxia due to drowning. It is stated by the father and mother of the deceased namely P. W. 7 Uma Ram and P. W. 18 Dhapu that she was married to Harphool the son of the appellants 4 years prior to the date of the incident. Thus, the second ingredient of the offence is also established that death had occurred within 7 years of the marriage of the deceased. Before we proceed further to see whether the remaining two ingredients are also satisfied, it would be convenient to deal with the major criticism levelled by the appellant to the effect that there is an inordinate delay of almost one month in lodging the First Information Report without satisfactory explanation which raises a serious suspicion about the correctness and truthfulness of the prosecution case. In the instant case the alleged incident took place on 18. 12. 96. A First Information Report of the incident was lodged at Police Station, Jaswantgarh on 19. 12. 96 at 7:45 A. M. by D. W. 3 Triloka Ram. On the basis of that report an inquiry under Section 174 Cr. P. C. Commenced. However, a typed written First Information Report was submitted by P. W. 18 Dhapu Devi on 17. 1. 97 at Police Station, Jaswantgarh. On the basis of that report a case was registered against the appellants for offence under Section 498a & 304b I. P. C. Thus, apparently there is a delay of almost one month in lodging the First Information Report. It is sought to be explained by the informant Dhapu Devi herself when she stated in the F. I. R. , that her husband on receiving the shocking news reached to the house of appellant Hira Ram and seeing the dead body of his daughter he became unconscious. It is also averred that while her husband was unconscious his thumb impressions were taken on papers. It was further averred in Para 8 of the F. I. R. , that her husband became mentally sick seeing the dead body of their daughter and as such he could not narrate the entire incident immediately. The same explanation has been given by her when she appeared in the witness box as P. W. 18. In the cross examination she admitted that though her husband Uma Ram remained unconscious for about 12 days but she did not consult any doctor. P. W. 7 Uma Ram has stated that on 18. 12. 97 he was informed by Triloka Ram about the death of his daughter Buli. He accompanied him in the jeep to Laidy. Seeing the dead body of his daughter he became unconscious. However, he has further stated that he inquired from Hira Ram as to the cause of death on which he disclosed that he had gone to the field with his wife and when returned in their absence Buli accidentally slipped in the tank. He also confronted him as to how she could slip in a tank having a small hole. After 15 days of the incident when he gained consciousness his wife inquired about the details of the incident. It was also decided to make an inquiry into the matter. After verifying the facts a First Information Report was lodged. The statements of both the witnesses on the question of delay in filing the First Information Report does not inspire confidence. Even according to P. W. 7 Uma Ram he gained consciousness after 15 days. He could have lodged the First Information Report even after 15 days but in fact it was lodged after one month. If Uma Ram had in fact become unconscious his family members would have definitely arranged the medical assistance. It is admitted by P. W. 18 Dhapu that no medical assistance was sought during the entire period of unconsciousness of her husband. ;