ARORA, J. - (1.) THIS appeal is directed against the judgment dated 30-8-93, passed by the Additional Sessions Judge No. l, Hanumangarh, by which the learned Additional Sessions Judge convicted the accused-appellant for the offences under sections 304-B and 406 I. P. C and sentenced him to undergo ten years rigorous imprisonment and a fine of Rs. 1000/- and in default of payment of fine further to undergo six months rigorous imprisonment for the offence under section 304-B, I. P. C. and six months rigorous imprisonment and a fine of Rs. 50 ()/- and in default of payment of fine further to undergo three months rigorous imprisonment for the offence under section 406 I. P. C.
(2.) THE case of the prosecution is that Narain Ram's daughter Maina Devi was married to accused Chhanga Ram eight months before the date of the incident. After her marriage, she went to her in- Law's house and started living with the accused-appellant in village Baniyawali Dhani. Twice she came to her parents' house and again went to her in Law's house. Whenever she came to her parents' house, she complained her father that Chhanga Ram demanded she-buffalo and some cash and used to say that he should be given gold ear-rings in place of the silver pair. On 24-2-89, she died due to burn injuries. According to the prosecution, she was murdered by the accused-appellant. THE accused was tried by the learned Additional Sessions Judge No. l, Hanumangarh for the offences under Sections 302, 304-B and 406 I. P. C. THE prosecution, in support of its case, examined eight witnesses. THE accused, in his defence, examined three witnesses. PW 1 Vasu Deo Bhatt was the Deputy Superintendent of Police, Police Circle, Sangaria, who investigated the matter under Section 174 Cr. P. C. when a report of the death of deceased was received. He inspected the site alongwith Mr. Khem Raj, Sub- Divisional Magistrate, prepared the site-plan and recorded the statements of the witneses. PW 2 Dr. K. N. Markandey was the Medical Jurist in Government Hospital, Sri Ganganagar,' who was, also, one of the Members of the Medical Board appointed by the Chief Medical and Health Officer to examine the deadbody of Maina Devi and he prepared the report EX. P. l, which is signed by him. According to the post-mortem report, the cause of death of Maina Devi was asphyxia due to burns. PW 3 Jagdish Kumar is the Photographer, who took the photographs of the deadbody of Maina Devi. PW 4 Het Ram is the cousin of deceased Maina Devi. PW 5 Kheraj is the real brother of deceased Maina Devi. PW 6 Ramphal Sharma was the Station House Officer, Police Station, Lalgarh, before whom accused Chhanga Ram lodged the F. I. R. EX. P. 8. On this report, an information was given to the Sub-Divisional Magistrate and the matter was enquired into and investigated under Section 174 Cr. P. C. He is, also, the person, who, later on, investigated the matter and submitted the challan against the accused-appellant. PW 7 Narain is the father of deceased Maina Devi. PW 8 Bhanwar Lal is the maternal - uncle of the deceased. This is whole evidence produced by the prosecution. The prosecution case mainly rests upon the statements of four witnesses, viz. , PW 4 Het Ram - the cousin of the deceased, PW 5 Kheraj - the brother of the deceased, PW 7 Narain - the father of the deceased and PW 8 Bhanwar Lal - the maternal - uncle of the deceased. PW 4 Het Ram has stated that accused Chhanga Ram is his brother-in-law and his first cousin Maina Devi was married to the accused-appellant. After her marriage she came twice to her parent house and he was informed by his uncle Narain Ram that accused Chhanga Ram used to annoy Maina Devi and made a demand for she-buffalo, cash and gold ear-rings. Thereafter they went to Ramji and asked him to pacify the matter. About a year before, he was informed that Chhanga Ram has killed Maina Devi. Deceased Maina Devi never reported the matter to this witness nor he had any personal information or knowledge regarding the demand of dowry by the accused-appellant or that Maina Devi was subjected to cruelty. Maina Devi used to come to the house of her parents but she never reported the matter regarding demand of dowry or cruel treatment of the accused towards her, to this witness and, therefore, his statement does not lend any support to the prosecution case. Pw 5 Kheraj is the real brother of the deceased. He has stated that his sister Maina Devi was married to accused Chhanga Ram eight months before her death. Once he went to the in-laws house of Maina Devi and at that time she informed him that Chhanga Ram used to give beatings to her and was demanding gold ear- rings, she buffalo and cash. Prior to her death she twice came to her parents' house and at that time his father informed him that accused Chhanga Ram was cruelly treating Maina Devi and was,also, demanding she buffalo, cash and gold ear-rings and when he enquired from his sister Maina Devi, she affirmed the same and stated that the accused used to beat her for these reasons. Bhanwar Lal informed him about the death of Maina Devi and thereafter they went to the Dhani of the accused and on enquiry they came to know that Maina Devi was subjected to cruelty for the demand of dowry. He, however, admitted that he does not know how Maina Devi died. In the cross-examination he has admitted that no demand for dowry was made from him. He has, also, admitted that when his sister informed him regarding the demand of dowry made by the accused, he did not hear. He,also,did not make any enquiry from her nor made any complaint to the accused. They were informed by Bhanwar Lal that Maina Devi was murdered by the accused-appellant. The alleged demand of dowry, which was made by the ac-cused,also,does not inspire confidence. It was not such a demand which may lead the accused to commit the murder of Maina Devi, particularly when the niece of the accused was married to the brother of the deceased - the present witness. Not making any complaint to the accused, not informing any person of the family and even not satisfying himself, show that no such demand of dowry was ever made by the accused. Even if we admit that such demand was made even then it cannot be said to a demand made as a dowry. Pw 7 Narain Ram is the father of deceased Maina Devi. He has stated that his daughter Maina Devi was married to accused Chhanga Ram and his son Kheraj was married to the niece of the accused and after her marriage a demand for she-buffalo and some cash was made by the accused from Maina Devi and the accused, also, made a demand for gold ear-rings. He was informed by Maina Devi that for these articles she was subjected to cruelty and was given beatings by the accused. He told this fact to his son Kheraj and Kheraj made a complaint to his father-in-law Ramji, who is the elder brother of the accused, and Ramji tried to pacify the matter. He was informed by his brother-in-law Bhanwar Lal that his daughter Maina Devi has been killed by the accused. Thereafter he, his son Kheraj, nephew Het Ram and Bhanwar Lal went to the house of Chhanga Ram and there they were informed that Maina Devi was killed by pouring Kerosene-oil on her and litting fire for demand of dowry, or she had committed the suicide. Next day the police came and registered the case. In the cross-examination he has admitted that nothing was agreed to be given in dowry and whatever he thought propoer, he gave as gifts to his daughter. No demand for gold ear-rings was made at the time of the marriage, he could not name the person who informed them that the girl was killed by accused Chhanga Ram. He has stated in the cross-examination that some persons standing there informed him this fact. He has,also,admitted that they never made any complaint to the accused regarding his demand for she-buffalo, cash and gold ear-rings. He has, also, admitted that these demands were, also, not made. They only made a complaint to Ramji and Ramji assured that he would settle the matter. Pw 8 Bhanwar Lal is the maternal - uncle of deceased Maina Devi. His statement is only to the effect that Leela Ram, on the date of the incident, came to him at about 12. 00 in the noon and informed that accused Chhanga Ram has murdered his wife Maina Devi and a Panchayat be held so that the matter could be settled. He immediately went to Goluwala and informed Narain Ram. Thereafter Narain Ram informed him that the accused used to raise demand for she-buffalo, some cash and gold ear-rings and the girl was subjected to cruelty for the same. Thereafter they went to the Dhani of the accused and there they were informed that Maina Devi had been taken to Ganganagar Hospital and she was subjected to cruelty for demand of dowry. This Leela Ram, who is alleged to have informed this witness regarding the murder of Maina Devi by the accused, has not been produced in evidence. He has admitted that on the point of demand of alleged dowry, neither any quarrel took place between the parties at the time of the marriage or thereafter. He has,also,admitted that no Panchayat was ever held with respect to the demand of the dowry. He could not state the name of the person who informed that the murder of Maina Devi was committed by the accused or the lady was subjected to cruelty.
(3.) FURTHER, no witness of the area or the village has been produced to show that Maina Devi was subjected to cruelty by the accused-appellant. Only the vague allegations have been made by the prosecution against the accused regarding the demand of dowry or that the lady was subjected to cruelty. No charge under Section 498-A, I. P. C. has been framed against the appellant and even if there was some, then too the accused could not have been convicted for this offences because the ingredients of the offence under Section 498 -A, I. P. C. are not proved by the evidence produced by the prosecution. The learned Additional Sessions Judge convicted the appellant for the offence under Section 304-B, I. P. C. For establishing the guilt of the accused for the offence under Section 304-B, I. P. C. , the prosecution has to prove that the death of the woman was caused by any burns or bodily injury or the death was caused otherwise than in the normal circumstances within the seven years of the marriage and it is shown that soon before the death the victim was subjected to cruelty or harassment by the husband or any relative of the husband for or in connection with any demand for dowry and in such cases, the death caused can be termed as 'dowry death'. So far as the first part of the Section is concerned, it stands proved that the death of Maina Devi took place within a year of her marriage; but the prosecution failed to prove that she was subjected to cruelty or harassment by the husband for or in connection with any demand for dowry. What to say about the 'demand of dowry',there is no evidence that she was subjected to cruelty and , therefore, the offence under Section 304-B I. P. C. is not proved against the accused-appellant. The conviction of the appellant for the offence under Section 406 I. P. C. is, also, not maintainable because none of the witnesses has stated regarding the commitment of criminal breach of trust by the accused-appellant. In the absence of any evidence regarding the criminal breach of trust by the appellant, no conviction can be made for this offence. ;