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A. K. PATNAIK, J.

This is an appeal by way of special leave under Article 136 of the Constitution against the judgment dated 16.09.2004 of the Punjab and Haryana High Court in Criminal Appeal No.337-SB of 1992.

Facts:

2. The facts very briefly are that on 26.02.1991 at 11.20 P.M., the Assistant Sub-Inspector of Police of Police Station-City Dabwali, District Sirsa in Haryana, Madan Lal recorded a statement of Vandana at CHC Hospital, Mandi Dabwali. She stated that about two years ago, she was married to the appellant and the appellant used to taunt her on petty matters and earlier the appellant used to tease her for dowry and on being fed up with the habits of the appellant, on 26.02.1991 between 7.00 and 7.30 P.M., she sprinkled kerosene on her and set herself on fire. The statement of Vandana was registered as First Information Report (FIR) by the S.I. of P.S. Dabwali, Kuldeep Singh. Soon thereafter on 26.02.1991, the Judicial Magistrate, First Class, R.S. Bagri, recorded a statement of Vandana under Section 164 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) in which Vandana reiterated her statement to the Police. On 27.02.1991 at 2.20 A.M., Vandana died.

Post mortem was carried out on the body of Vandana (hereinafter referred to as ‘the deceased’) by Dr. S.S. Bansal. The Police then took up the investigation and submitted a charge-sheet against the appellant.

3. On 28.08.1991, the Sessions Court framed a charge under Section 304B, IPC, against the appellant to which the appellant pleaded not guilty. At the trial, the prosecution examined Kedar Nath, who had prepared the scaled plan (Ext. PA) on the place of occurrence, as PW-1; Dr. R.C. Chaudhary, Medical Officer, General Hospital, Mandi Dabwali, who had examined the deceased and found the burn injuries on her body as PW-2; S.I. Kuldeep Singh of P.S. Dabwali, who had registered the FIR as PW-3; the landlord of the house in which the deceased lived with her husband as PW-4; Niranjan Ram Gupta, the father of the deceased, as PW-5; Bhupinder Kumar, the uncle of the deceased as PW-6; Dr. S.S. Bansal, who conducted the post mortem on the body of the deceased as PW-7; R.S. Bagri, the Judicial Magistrate, who recorded the statement of the deceased under Section 164, Cr.P.C. as PW-8 and ASI Madan Lal, the Investigating Officer, as PW-9. The statement of the appellant was recorded under Section 313, Cr.P.C. In defence, the appellant examined Ramesh Devra as DW-1; Jagdish Kumar as DW-2; Nihal Singh, Assistant Chief Medical Officer, Sirsa, as DW-3; Dr. Ajay Kumar Gupta, Medical Officer, Civil Hospital, Sirsa, as DW-4 and Dr. J.L. Bhutani as DW-5. After considering the evidence and the arguments on behalf of the parties, the learned Additional Sessions Judge, Sirsa, in his judgment dated 31.08.1992 held that the prosecution has been able to prove the charge against the appellant and accordingly convicted him under Section 304B, IPC. Thereafter, the learned Additional Sessions Judge heard the accused on the quantum of sentence and ordered that the appellant be sentenced to seven years R.I. with a fine of Rs.2,000/- and in default of payment of fine, to undergo further imprisonment of six months.

I was married to Dr. Rajiv Singla 2 years back. My husband used to get upset on petty issues. My in-laws lived separately. They are living after the 6 months of my marriage. My daughter is of 2 months. Today about 7.30 p.m., in evening I was fed up with activities of my husband and put on kerosene oil and burn myself. Earlier my husband used to taunt me for dowry. Action should be taken against my husband.

                                        Sd/- R.C. Bangri
        RO & AC                              JMIC
                                       Dabwali, 26-2-91
        RTI of Vandana
        Identified
        Sd/-
        Madan Lal, ASI
        P.C. City Dabwali,
        Dated: 26-2-91”

On the night of 24.2.91, I had received anonymous telephone call on the telephone no. 242 that Rajiv Kumar has fled away leaving his minor daughter alone. On hearing this, my daughter Vandhana got perturbed and wanted us to leave her at Mandi Dabwali immediately. On 25.02.91 (25.2.91) we left Vandhana at Mandi Dabwali. I was accompanied by my wife Pushpa Rani and Bhupinder Kumar. On reaching at Dabwali we found Rajiv Kumar present in his clinic and later on he came to the house. We told Rajiv Kumar that he should not repeatedly give beating to Vandhana. We told him that it was not proper for him to do so. We also advised our daughter Vandhana to adjust with her husband and to remain calm and quiet and not to speak. On 25.2.91 itself after advising Rajiv Kumar and Vandhana we came back to Kartarpur after staying at night at Bhatinda. On 27.2.91, I received a telephonic message that Vandhana after sprinkling kerosene oil on her body has put herself fire and that she is dead and no longer alive.” From the aforesaid evidence of PW-5, it is clear that the marriage between the appellant and the deceased took place on 28.01.1989 and the demand of dowry by the appellant and the beatings for more dowry was after the marriage. PW-5 has also stated that on 19.02.1991 the deceased came to him at Kartarpur and told him that two days prior to 19.02.1991, the appellant gave her merciless beating. PW-5 has, however, not stated that the beating that the appellant gave to the deceased on 19.02.1991 was in connection with demand of dowry. One of the essential ingredients of the offence of dowry death under Section 304B, IPC is that the accused must have subjected a woman to cruelty in connection with demand of dowry soon before her death and this ingredient has to be proved by the prosecution beyond reasonable doubt and only then the Court will presume that the accused has committed the offence of dowry death under Section 113B of the Indian Evidence Act. As this ingredient of Section 304B, IPC, has not been established by the prosecution, the trial court and the High Court were not correct in holding the appellant guilty of the offence of dowry death under Section 304B, IPC.