ORDER
S.S. Grewal, J.
1. This appeal is directed against the order of Additional Sessions Judge, Rohtak, dated 9th September, 1986, whereby Devinder Kapoor Singh and Smt. Murti were convicted under Sections 498A and 306 of the Indian Penal Code. Smt. Murti was released on probation of good conduct for a period of three years on her furnishing personal bond in the sum of Rs. 5,000/- with one surety in the like amount, whereas, Devinder and Kapoor Singh were sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 500/ – each under Section 498A of the Indian Penal Code. In default of payment of fine they were, ordered to undergo further rigorous imprisonment for six months. Both of them were further sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1000/- each under Section 306 of the Indian Penal Code. In default of payment of fine, they, were ordered to undergo further rigourous imprisonment for 2 1/2 years each. The substantive sentences of imprisonment were ordered to run concurrently.
2. In brief facts of the prosecution case as emerge from the first information report recorded on the basis of the statement of Dalip Singh PW on 25-4-1985 are that he had two children. Ram Chander PW is his eldest son whereas Mahle his daughter was the youngest. The latter was married to Devinder accused about 6 or 7 years prior to the present occurrence. He had given sufficient dowry to his daughter. After one year of the marriage his daughter Mahle started visiting her matrimonial home. In the beginning there was no complaint and she continued her visits to the house of her in-laws for one or two years. Mahle since deceased complained to him that her mother-in-law Mst. Murti and her husband Devinder taunted her for bringing inadequate dowry and that she belongs to a poor family. Ultimately the matter was referred to the Panchayat and Mahle came back to her parental house. After some days mother of the deceased expired. Dalip Singh did not want to keep his young daughter all alone at this house. Mst. Murti her mother-in-law came and took Mahle to her house. Ram Chander PW was sent to enquire about the welfare of Mahle who went and complained but was pacified by her brother Ram Chander. The accused, however, did not allow Mahle to live in peace and taunted for not bearing any child and sought divorce. About two years prior to the present occurrence marriage of Ram Chander was solemnised. Mahle and her husband Devinder accused attended that marriage. After the said marriage Mahle stayed at her parental house for sometime. Thereafter Devinder accused himself came and took her to his house. The deceased, however, continued making complaints about the mal-treatment meted out to her. After sometime Ram Chander PW was blessed with a son. On that occasion, only Mahle came to her parental house. Customary gifts including gold ornaments were given by Dalip Singh to his daughter, who stayed with her father for about 4/5 months. Ram Chander PW again went and asked Mst. Murti and Devinder accused to bring Mahle but they were not willing to do so and remarked that it was no use taking Mahle to her matrimonial house when she could not bear a child. Thereafter, Dalip Singh PW along with Devi Dutt, Ex-sarpanch, Kartar and Ranjit went to the village of the accused and collected, a Panchayat from that village also.’ They persuaded and reprimanded the accused and Devinder Singh accused agreed to bring back his wife Mahle. 10/12 days thereafter, Devinder accused came to the house of Dalip Singh PW and wanted to take back Mahle but she was not sent as it was already .4 p.m. During this period parents of Devinder. appellant also came to take their daughter-in-law but she was not sent along with them. Thereafter the accused brought Panchayat from their village and assured that their behaviour towards Mahle would be fair. On this assurance, Mahle was again sent to the house of her in-laws. After a period of 10/12 days Ram Chander PW was sent to the house of the accused in order to enquire about the welfare of Mahle who informed Dalip Singh that she was alright and there was no ill-will against her. After another two days, Kapoor Singh accused came to the house of Dalip Singh PW and informed that his daughter was seriously ill. Thereafter on 18-4-1985 Dalip Singh along with others including Ranbir Singh went to the house of the accused in order to enquire about the welfare of his daughter. On reaching the said village, it was found that his daughter was quite well. On 23-4-1985, Dalip Singh PW again went to the village of the accused and found that his daughter was alright. However, at night Dalip Singh received information through police that his daughter had been admitted to Medical College and Hospital, Rohtak because she had eaten something and had expired. Dalip Singh, Kartar Singh, and Dharmpal went to the said Hospital and identified the dead body of Mahle in the mortuary. According to Dalip Singh his daughter had died as a result of taking some poison due to harassment by her husband and parents-in-law because of inadequacy of. dowry. After completion of the investigation, the accused were challaned, tried, convicted and sentenced as stated earlier.
3. Post-mortem examination on the dead body of Mahle was conducted by penal of doctors including Dr. B. P. Sharma, P.W. 2 on 25-4-1985 at 4.30 p.m. and the said doctor found four injuries mainly contusions including two injuries on the right thigh. Visceras were also sent for analysis to the Chemical Examiner who opined that the deceased died due to intake of aluminium phosphide poisoning. 4. In their statements recorded under Section 313 of the Code of Criminal Procedure, the accused denied that they had harassed or treated Mahle with cruelty for bringing inadequate dowry, or for not bearing a child and denied other allegations appearing in evidence against them and pleaded false implication. According to the accused the marriage between Devinder accused and the deceased took place about eight years before the occurrence. The deceased did not bear any child remained in distress and worried. She felt frustrated. The accused had absolutely no quarrel on account of dowry and they were living peacefully. Devinder accused also pleaded that he does not know how his wife died, whether she took some wrong medicine for headache or insecticide for preservation of the wheat by mistake or it may be food poisoning but the moment she complained of complications in the body, he along with his parents and villagers took her to Medical College and Hospital, Rohtak and sent information to his in-laws who also reached there. After the death of Mahle, they (Dalip Singh) connived with the police and falsely implicated the accused with intent to put pressure for returning dowry articles or value thereof. 5. The learned counsel for the parties were heard. 6. The learned counsel for the appellants submitted that Dalip Singh P.W. 1 father of the deceased had merely mentioned that the marriage of his daughter was solemnised about 6/7 years back and has not given any specific date in respect of the said marriage. On the basis of the aforesaid statement given by Dalip Singh PW, it was further submitted that marriage of the deceased with Devinder appellant took place more than seven years back. Omission' on the part of Dalip Singh PW who is an illiterate person to mention the date, month and year of marriage would not per se be sufficient to hold that the marriage between the deceased and Devinder appellant took place within seven years of her death. In the absence of any other reliable material on the record the oral testimony of Ram Chander brother of the deceased who is serving in the police department, that the date of marriage of Mahle was 10th of June, 1973 cannot be safely relied upon. This witness admitted that his mother died after about 3'/2 or 4 years of the marriage of the deceased. The marriage of Ram Chander P.W. 9 brother of the deceased took place about a year after the death of his mother. A son was born out of the wed-lock of Ram Chander after about 1 or 1 4 years of his marriage. That child was about six months old at the time of the death of Mahle. The testimony of Dalip Singh and Ram Chander referred to above is not sufficient beyond any reasonable doubt to prove that the marriage of the deceased took place within seven years of her death as in the case set up by the prosecution. As such no legal presumption as contemplated under Section 113B of the Evidence Act can be drawn, against the appellant that they are guilty for causing dowry death. The prosecution has not been able to prove that marriage of Mahle and Devinder appellant was solemnised within seven years of the death of Smt. Mahle due to intake of aluminium phosphide. 7. The learned counsel for the appellants next submitted that there is no legal, cogent or reliable evidence on the record to prove either that the appellants instigated, aided or abetted the commission of suicide by Mahle deceased or that the appellant acted with cruelty or that their wilful conduct was likely to drive Mahle to commit suicide or cause her any harassment with a view to coerce her or any of her relations to meet any unlawful demand for dowry or valuable security on account of their failure to meet any such demand. On behalf of the prosecution, it was submitted that there is ample evidence on the record to prove that the appellants maltreated, harassed and taunted the deceased Mahle for bringing inadequate dowry and she could not bear any child compelling her to commit suicide by intake of aluminium phosphide. 8. Both Dalip Singh father and Ram . Chander brother of the deceased deposed that after about two years of the marriage Mahle complained, that she was taunted for inadequacy of dowry given to her and that the appellants were not happy with the deceased for not bearing any child. Dalip Singh P. W. 1, father of the deceased asked his daughter and wife not to be provoked over such matters and that he would persuade in-laws of Mahle to understand. For this purpose he had talked with Kapoor Singh appellant father-in-law of the deceased, who assured Dalip Singh that this matter would be settled in due course by the ladies concerned. Harassment to the deceased allegedly continued because she could not bear any child. Dalip Singh deposed that he had taken Panchayat to the village of the appellants and the latter had assured the Panchayat that there will be no complaint in future. Thereafter Mst. Murti appellant herself came and took Mahle her daughter-in-law with her. After another fortnight Ram Chander PW was sent to see his sister. The deceased again complained about the harassment of her in-laws. On return, brother of the deceased informed his father that the appellants had given assurance that they would treat her (deceased) nicely in future. Thereafter the marriage of Ram Chander PW took place which was attended by Devinder appellant and the deceased. On that occasion customary gifts including one gold ring and one suit was given to Devinder appellant. After that marriage the deceased stayed back at the house of her father and Devinder appellant came after 15 days and the deceased accompanied him to his village. This would indicate that the relations between the deceased and the accused particularly her husband had become normal and unpleasant past seems to have been forgotten for the time being.
9. However, from the testimony of Dalip Singh and Ram Chander PWs it transpires that after one year of the marriage of Ram Chander a son was born out of the said wed-lock. Mahle alone attended the function for celebration of the new born child. Neither Devinder nor his mother Smt. Murti attended that function. This aspect of the case indicates that the relations between the deceased with her husband and in-laws were again strained and Smt. Mahle continued to stay at the house of her father. After waiting for 2/3 months Dalip Singh along with Devi Dutt village Sarpanch went to the house of the appellants and at that time two brothers of Kapoor Singh appellant and their wives were present. At that time according to Dalip Singh PW those persons including parents of Devinder reprimanded Devinder (appellant) for not bringing his wife. After ten days, his son-in-law Devinder came to his house and threatened his wife that she would not be spared and would not be allowed to come to see her parents. Devinder reached the house of his in-laws at 3 p.m. and wanted his wife to be sent along with him on the same day as he wanted to return to his village by last bus which would leave at 4 p.m. The deceased was not sent along with her husband at that time and Devinder appellant had to return alone. Thereafter mother-in-law of the deceased Mst. Murti appellant came for taking her daughter-in-law to their house. The deceased did not accompany her mother-in-law, at that time. The explanation furnished by Dalip Singh PW is that the mother-in-law could not give any guarantee about the safety of her daughter-in-law. According to Dalip Singh PW, Kapoor Singh appellant (father-in-law of the deceased) also came to take his daughter-in-law but he declined to give any assurance on behalf of his son Devinder, so Dalip Singh did not send his daughter with Kapoor Singh. This version was introduced for the first time when Dalip Singh appeared, in the trial Court and is conspicuous by its absence from the earliest version given by Dalip Singh PW which constitutes the first information report in this case. The same cannot be safely relied upon without any plausible explanation concerning such omission. After about 10/12 days thereafter Devinder and Kapoor Singh appellants accompanied by 2/3 other persons including one doctor came to the house of Dalip Singh and on their assurance for safety of Smt. Mahle the latter was sent along with them. Dalip Singh PW himself stated that after, another 10/12 days his son Ram Chander went to the house of his sister Mahle in order to enquire about, her welfare and at that time she told him that she was happy and made no complaint.
10. Two days after the return of Ram Chander PW from the house of his sister, Dalip Singh PW after learning from Kapoor Singh appellant that his daughter Mahle was in critical condition, the former along with Kartar Singh and others including Ranbir Singh P W went to the house of the in-laws of his daughter and found that his daughter was quite well and was attending to her daily work. On enquiry by Dalip Singh, Suraj Bhan, brother of Kapoor Singh appellant told Dalip Singh PW that Kapoor Singh might have been under the influence of liquor when he gave such false and baseless information Kapoor Singh was also reprimanded1 by Suraj Bhan. These circumstances would also indicate that Mahle had not been mal-treated or in any manner harassed after she went back to the house of her in-laws.
11. Thereafter Kapoor Singh appellant is said to have appeared before the village Sarpanch where Panchayatnama Ex.PA was recorded. Therein, it is mentioned that Kapoor Singh, his son Devinder and his wife Mst. Murti gave beating and mal-treated Mst. , Mahle daughter of Dalip Singh and made her life miserable because of demand of dowry including scooter. It is also mentioned in the Panchayatnama Ex. PA that on persuasion Kapoor Singh agreed that in future they would neither mal-treat Mahle nor demand scooter. This Panchayatnama is alleged to have been executed on the insistence of Dalip Singh PW. Ranbir Singh Sarpaneh while appearing as P.W. 10 admitted in his cross-examination that he was not on visiting terms with Kapoor Singh (Accused). He also admitted that Khazan Singh is elder brother of Kapoor Singh appellant and that Mst. Ram Rati wife of Khazan Singh is a member Panchayat. He further admitted that enquiry regarding embezzlement of funds was conducted against him several times but denied that application against him was submitted by Mst. Ram Rati aforesaid. The latter while appearing as P.W. 3 deposed that she gave application against Ranbir Singh, PW about embezzlement on Panchayat fundt? Another important aspect of the case is that even though the Panchayatnama is said to have been executed on 18-4-1985 yet there is neither any specific mention in the F.I.R. about the Panchayatnama or the other aforesaid facts including holding of any Panchayat or allegations against the appellants for beating or harassing the deceased before any such Panchayat, nor there is any specific mention in the earliest version given by Dalip Singh PW which constitutes the first information report that Kapoor Singh admitted his guilt or begged pardon or gave assurance that in future none of them would maltreat Mahle. The explanation given by Dalip Singh that he had mentioned all these facts before the police at the time when his statement was recorded on 25-4-1985 and that the police declined to record the same on the ground that his statement would be recorded only after the production of the Panchayatnama, does not seem to be a plausible or satisfactory explanation. Rather, the defence plea that the Panchayatnama Ex.PA was prepared at a later stage to fill in the lacuna in the prosecution story seems probable in the peculiar facts and circumstances of the present case.
12. It is also significant to note that after the appellants came to knew that the deceased was unwell, she was immediately removed by Suraj Bhan brother of Kapoor Singh, appellant and Smt. Murti, mother-in-law of the deceased, to the Medical College and Hospital at Rohtak, at 7.35 a.m. on 24-4-1985 where she was examined by Dr. Kitab Singh, P.W. 3. According to the said doctor, the patient had consumed some tablets used for preservation of wheat mistaking it for some tablets used for headache, as stated by the mother-in-law accompanying the patient whereas patient herself refused to give any details. Obviously the deceased was removed to the hospital for treatment much before the arrival of the complainant party. These circumstances rather indicate that the conduct of the appellant was not consistent with the guilty conscience. The reports of the Chemical Examiner also indicates that visceras taken from stomach, small intestines, liver, spleen and kidney contained aluminium phosphide. Post mortem report further shows that the deceased also had four injuries on her body including injuries on her right thigh. The said injuries, however, were not sufficient in the ordinary course of nature to cause death and death of Mahle in all probability was due to intake of phosphide poisoning. In the absence of other material evidence, this circumstance alone would not be sufficient to prove the guilt against the appellants beyond reasonable doubt.
13. There is no reliable material on the record to prove that the appellants within reasonable time before the death of Smt. Mahle had abetted the commission of suicide by her or that Devinder appellant husband and Kapoor Singh and Mst. Murti appellants, parents-in-law of Mahle deceased subjected her to cruelty by wilful conduct which drove Smt. Mahle to commit suicide or caused her harassment with a view to coerce her and her father to meet their unlawful demand for dowry or valuable security, on account of their failure to meet such demand. Rather the defence plea that the deceased was frustrated and greatly perturbed or agitated because she could not bear any child even after more than seven years of her marriage and committed suicide by intake of aluminium phosphide on that account seems probable, in view of the peculiar facts and circumstances of the present case. 14. For the foregoing reasons, I am of the considered view that the prosecution has failed to bring home charge framed against the appellants beyond reasonable doubt and giving them the benefit of doubt, I hereby acquit them. Fine, if realised, be refunded to the appellants. This appeal is accordingly allowed.