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4. After committing the case to the Sessions Court on evaluation of the charge sheet, the charge of Section 304 -B and Section 498-A of IPC were framed against both the accused. They abjured the guilt, on which the trial was held. On appreciation of the evidence with the assistance of the provision of presumption enumerated under Section 113-A of the Evidence Act, the present appellant was held guilty for the offence of Section 304-B and 498-A of IPC and was punished with the above mentioned punishment. While his father, Daryao Singh was acquitted from all the charges. Being dis-satisfied with such conviction and sentence, the appellant has come forward to this court with this appeal.

5. Shri Surendra Singh, learned Sr. Adv assisted by Shri Manish Mishra, learned counsel for the appellant after taking me through the record of the trial court including the evidence led by the prosecution as well as defence and exhibited papers alongwith the impugned judgment argued that on taking into consideration the entire evidence led by the prosecution as accepted in its entirety, even then the person like the appellant could not have been convicted by the trial court for the offence under Section 304-B of IPC. In continuation by referring the depositions of Dr. K.K. Sohit, (PW-1) and the postmortem report of the deceased, (Ex. P-4) said that on carrying out the autopsy of the corpus of deceased by this witness, he had not found any external or internal injury on the dead body of Mamta Bai either in deposition or in the postmortem report no definite opinion regarding mode of death of Mamta was given whether she had died due to homicidal death or suicidal death of otherwise. According to further deposition of this witness, the viscera of the deceased was preserved to send to forensic lab for chemical examination, and as per record, the same was sent but its examination report has neither been placed not proved on record. So in the lack of such FSL report merely on the oral testimony of some witnesses from the parental family of the deceased, it could not be said or assumed that the deceased had died with unnatural death or in any case, it could not be said that soon before her death on account of demand of dowry, she was subjected to any cruelty by the appellant. So in such premises, firstly in the lack of medical evidence to show that she died unnatural death and secondly on the basis of vague ocular deposition of the witnesses examined from the parental family, the impugned conviction and sentence of the appellant under Section 304-B of IPC is not sustainable. In continuation, he said that the ingredients of Section 498-A of IPC are also not proved against the appellant and in any case on appreciation of available evidence if other co-accused Daryao Singh was acquitted by the trial court, then there was no occasion with the trial court to convict the appellant on the basis of same evidence. In this regard he also argued that as per deposition of Asha Ram (PW-4), the demand of the motor cycle and the alleged goods/articles was made by the appellant alongwith his father before four years from the date of death of deceased Mamta and, therefore, in view of Section 468 of Cr.P.C., there was no limitation to file the charge sheet against the appellant for the offence of Section 498-A on the date of filing the charge sheet. As such the same was filed barred by three years. Thus, the conviction and sentence of the appellant under Section 498-A of IPC is not sustainable. In continuation, he said that in any case, if the court comes to the conclusion that approach of the trial court holding conviction against the appellant under Section 498-A of IPC does not require any interference at this stage, then considering the circumstances that the incident was happened long before in the year 1994 and appellant did not possess any criminal antecedents by adopting the lenient approach, he be extended the benefit of Probation of Offenders Act. In alternate he said that by adopting the lenient approach, his awarded jail sentence under such Section be reduced upto the period for which he has already undergone in the judicial custody during pendency of the trial between 1.9.1994 to 7.9.1994, so also subsequent to passing the impugned judgment on dated 10.3.1997 till 6.5.1997, the date on which the remaining jail sentence of the appellant was suspended by this court in this appeal, i.e. near about two months by enhancing the amount of fine under discretion of the court and prayed to allow the appeal accordingly. In support of his contentions, he also placed his reliance on the decisions of the Apex Court in the matter of Tarsem Singh Vs. State of Punjab reported in AIR 2009 SC 1454 and in the matter of Sanjay Kumar Jain Vs. State of Delhi reported in AIR 2011 SC 363.

It was furthermore held :-

Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman are required to be established in order to bring home the application of Section 498- A IPC. Cruelty has been defined in the Explanation for the purpose of Section 498-A. Substantive Section 498-A, IPC and presumptive Section 113-B of the Evidence Act have been inserted in the respective statutes by Criminal Law (Second Amendment) Act, 1983. It is to be noted that Sections 304-B and 498-A, IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the Sections and that has to be proved. The explanation to Section 498-A gives the meaning of 'cruelty'. In Section 304-B there is no such explanation about the meaning of 'cruelty'. But having regard to the common background of these offences it has to be taken that the meaning of 'cruelty' or 'harassment' is the same as prescribed in the Explanation to Section 498-A under which 'cruelty' by itself amounts to an offence. Under Section 304-B it is 'dowry death' that is punishable and such death should have occurred within seven years of marriage. No such period is mentioned in Section 498-A. A person charged and acquitted under Section 304-B can be convicted under Section 498-A without that charge being there, if such a case is made out. If the case is established, there can be a conviction under both the sections. (See Akula Ravinder v. The State of A. P.). (1991 Supp. (2) SCC 99). Section 498-A IPC and Section 113-A of the Evidence Act includes in their amplitude past events of cruelty. Period of operation of Section 113-A of the Evidence Act is seven years, presumption arises as to dowry death when a woman committed suicide within a period of seven years from the date of marriage.

16.True it is that in view of Section 468 of Cr.P.C., charge sheet of the offence defined and made punishable under Section 498 -A of IPC should have been filed within three years from the date of committing such offence, but it is apparent from Section 468 of Cr.P.C. that there is no limitation to file the charge sheet for the offence of Section 304-B of IPC in which also the charge sheet was filed against the appellant alongwith the averments of the offence of Section 498-A of IPC. So firstly, in such a situation, the charge sheet could not be dismissed partially or by holding the same as barred by time. Besides this, it is apparent from the deposition of Asha Ram, (PW-4) as well as Kusumrani, (PW-5) that the demand of motor cycle was lastly made by the appellant from the deceased-Mamta before two years from the date of her death. So in such premises, also the alleged demand being made within two years from the date of filing the charge sheet, the same could not be said to be barred by limitation. Thus, I am of the considered view that the prosecution has successfully proved the offence defined under Section 498-A of IPC against the appellant but has failed to prove the material ingredients of the offence of Section 304-B of IPC, as stated above. In such premises, the findings and approach of the trial court holding guilty to the appellant for the offence under Section 498-A of IPC is hereby affirmed.