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: SUNITA GUPTA, J.
1. By virtue of this appeal u/s 374 (2) of the Code of Criminal Procedure, the appellant challenges the impugned judgment and order on sentence dated 28th April, 2014 and 30th April, 2014 in Sessions Case No. 95/2001 arising out of FIR No.410/2010 whereby he was convicted u/s 498A/306 IPC and was sentenced to undergo rigorous imprisonment for a period of six years and fine of Rs.15000/- in default to undergo rigorous imprisonment for six months u/s 306 IPC and rigorous imprisonment for three years and fine of Rs.5000/- in default to undergo rigorous imprisonment for a period of three months u/s 498A IPC. Both the sentences were to run concurrently.
4. By placing reliance on the testimony of PW10 and PW13, learned Trial Court observed that prosecution succeeded in establishing beyond reasonable doubt that the accused being the husband of the deceased subjected her to cruelty with a view to coerce her, her relatives to meet the unlawful demands of dowry of the accused. Hence, accused was convicted u/s 498A IPC. However, as regards offence u/s 304B IPC, learned Trial Court observed that one of the essential ingredients for proving the charge u/s 304B IPC is that the prosecution has to prove that harassment or cruelty given to the deceased was related to demand of dowry and was 'soon before her death'. Although PW10 & PW13 had orchestrated a story regarding unlawful demand of Rs.1 lac by the accused for purchasing of computer, however, discrepancies regarding the same were noted by observing that PW10-Mohd. Kasim deposed that his daughter telephoned him and informed about the demand of Rs.1 lac and beatings given by the accused to her and that 10 days prior to her death, his daughter telephonically informed him regarding the cruelty, harassment and beatings given to her by accused due to non fulfilment of this demand. The factum of this demand of Rs.1 lac for purchase of computer was not disclosed by this witness when his statement was recorded by the SDM-PW12-Sh. Pradeep Baijal and the explanation given that due to death of his daughter, he was disturbed is not a proper explanation as when he disclosed all other material facts to the SDM, he could not have forgotten this very important and recent fact which was the immediate cause of death of his daughter. Furthermore, according to him the telephone call was received by his son Mohd. Sikandar but Mohd. Sikandar did not corroborate his version by stating that he was informed by his father that the accused was demanding Rs.1 lac to purchase a computer. Further, according to the witness, the accused also demanded Rs.1 lac from Rawana Parveen, sister of the deceased and on that issue, abuses were exchanged between accused and Rawana Parveen. However, Rawana Parveen was not examined by the prosecution. Under the circumstances, prosecution has failed to prove that 'soon before death', the deceased was subjected to cruelty or harassment by the accused in connection with demand of dowry. As such, the evidence fell short of proving the essential ingredients of Section 304B IPC.
5. However, learned Trial Court convicted the appellant for offence u/s 306 IPC on the ground that factum of commission of suicide by the deceased by hanging herself within seven years of her marriage with the accused is not disputed. He has also been convicted u/s 498A IPC. That being so, a presumption arises u/s 113A of the Indian Evidence Act, 1872 that the husband has abetted the suicide of the deceased. The accused has failed to rebut the presumption, as such, he was held guilty of offence u/s 306 IPC.
28. Accordingly, the appeal is partly allowed. While upholding the conviction of the appellant for offence u/s 498A IPC, his conviction under Section 306 IPC is set aside. The appellant was sentenced to undergo rigorous imprisonment for three years and fine of Rs.5000/- for offence u/s 498A IPC. As per the nominal roll dated 27th February, 2015, the appellant has already undergone a period of 4 years, 2 months and 12 days besides earning remission of 2 months and 14 days. It is also reported that fine has already been paid in the Court.