JUDGMENT

1. These appeals have been preferred against judgment dated 15.01.2018 and order of sentence dated 20.01.2018 passed in Sessions Trial No. 551 of 2014/56 of 2016 arising out of Bairgania P.S. Case No. 175 of 2013. The appellants were charged for offences under Sections 304(B)/34 IPC and 302 IPC, however, acquitted of the charge under Section 302/34 IPC. The learned trial Judge awarded rigorous imprisonment for ten years and a fine of rupees ten thousand for the proved charge under Section 304(B)/34 IPC. In default of payment of fine, the appellants were directed to undergo three months simple imprisonment. The fine amount was to be paid to the legal heirs of the deceased.

2. The prosecution case as disclosed in the written report of Chandtara Khatoon (PW-4) is that her sister "A" was married with appellant Sadre Alam Khan seven months back. After few days of marriage, Sadre Alam Khan started demanding a motorcycle, however, the matter was pacified and the sister of the informant went to her Sasural. Again the demand started.

The informant came to know that appellant Sadre Alam Khan had illicit relation with his Bhabhi. This fact was reported by deceased "A". Thereafter, the informant enquired about this relationship and came to know that the information was correct one.

Sadre Alam Khan sent to his sister to her parents house saying that until motorcycle is provided to him, he would not keep her. However, under a conspiracy, pretending illness of his mother, Sadre Alam took the victim to his house on 13.12.2013. On 15.12.2013, the sister of the informant was poisoned to death and strangulated with a rope. FIR was registered under Section 302/34 IPC. However after investigation, the police submitted charge sheet under Section 304(B)/34 IPC.

3. Mr. Ashhar Mustafa, learned counsel for the appellants submits that there is lack of acceptable evidence of "torture to the victim before her death by the husband and other relations for non fulfillment of dowry demand," hence, most important ingredient of the offence under Section 304(B) IPC is missing. That is the reason that this incriminating circumstance was not put to the appellants while they were examined under Section 313 Cr.P.C. Moreover, not drawing attention of the appellants, at the time of examination under Section 313 Cr.P.C. regarding cruelty/harassment to the deceased by her husband and other relations for non fulfillment of dowry demand seriously prejudiced the defence of the accused because they could not get opportunity to explain such circumstance. Learned counsel submits that the prosecution case is that Panchayats were held for resolution of the demand of motorcycle but no Pouches were produced before the court of law. Learned counsel contends that none of the prosecution witnesses of the occurrence are eye witnesses of the alleged act of torture for non fulfillment of dowry demand before death nor there is trustworthy evidence that the victim had disclosed them about torture and demand though she had occasion to remain in the parents' family for long. No witness of the vicinity of place of occurrence was produced to support torture to the victim for non fulfillment of dowry demand by the husband and others.

4. To contra, Mr. Zeyaul Hoda learned counsel for the State submits that the learned trial Judge has considered that ingredients of the offence under Section 304(B) are proved against the appellants, hence, presumption under Section 113 B of the Evidence Act would be applicable.

5. PW-1 Jalaluddin Khan, PW-2 Salauddin Khan, PW-3 Alauddin Khan and PW-4 Chandtara Khatoon are siblings of the deceased.

PW-1 deposed that the deceased was married with the appellant Sadre Alam Khan. Thereafter, there was demand of motorcycle. The witness promised that whenever he would manage money, he would give motorcycle but the accused persons sent his sister to his house and said that until motorcycle would be provided they would not keep her. On the fateful morning, the victim wa