Hon'ble CHAUHAN, J.—Having been convicted for offence under Section 498-A and 304-B IPC by the Additional Sessions Judge (Fast Track), Dungarpur whereby, for offence under Section 498-A IPC, the learned Judge has sentenced the appellant to three years of rigorous imprisonment and imposed a fine of Rs. 2,000/- and further directed to undergo three months of additional imprisonment in default thereof, and for offence under Section 304B IPC, the learned Judge has sentenced the appellant to seven years of rigorous imprisonment, and imposed a fine of Rs. 2,000/- and to further undergo three months' of additional imprisonment in default thereof, the appellant has challenged the judgment dated 15.4.2009.

2. The brief facts of the case are that on 13.5.2008, Punjilal (P.W.1) had submitted a written report (Ex.P/1) at Police Sation Sagwara, wherein he had claimed that his daughter, Asha, was married to Sharad Kumar, the appellant, two years prior to the date of the incident. He further claimed that Sharad Kumar had been demanding Rs. 30,000/- by way of dowry. Sharad Kumar asked Asha to go to her parental place and to bring the said money. He further alleged that his daughter would come back home, and tell him and his wife that the appellant is demanding Rs. 30,000/-. As the said amount was not paid to him, Sharad Kumar tend to physically assault her and threatened her that he will kill her. He further claimed that fifteen days ago, his daughter was sent by Sharad Kumar to bring the said amount with her. He also claimed that Sharad Kumar threatened her that in case she did not bring the said amount, he would kill her. According to him, he called up Govind Lal, his brother-in-law, and told him about the illegal demand being made by Sharad Kumar. Govind Lal told him to keep his daughter at home. Subsequently, eight days ago, Sharad Kumar came to pick up his wife. He called Govind Lal. Govind Lal, the complainant and his wife tried to clarify things with Sharad Kumar. They sent their daughter with him. However, when she was leaving, she told her parents that "surely the appellant will kill me". He further alleged that on 12.5.2008 Sharad Kumar, along with Kala Suthar, killed his daughter and hung her from the ceiling. Lastly, he claimed that his daughter studied upto tenth class and used to write with her right hand. He also claimed that there is a suicide note written on the palm of the right hand of Asha. But the said suicide note had been written after his daughter was killed. On the basis of the said report, a formal FIR, FIR No. 98/2008, was chalked out for offences under Sections 498A and 304B I.P.C.

3. In order to support its case, the prosecution examined nine witnesses and submitted ten documents. Although the defence did not examine any witness, but it submitted four documents. After going through the oral and documentary evidence, vide judgment dated 15.4.2009, the learned Judge convicted and sentenced the appellant, as aforementioned. Hence, this appeal before this Court.

4. The learned counsel for the appellant has raised the following contentions before this Court; firstly, the FIR lodged by Punji Lal was a second F.I.R. As on 12.5.2008, the appellant's brother had already lodged a F.I.R. with regard to Asha's death.

5. Secondly, although the date of incident is 12.5.2008, although the complainant and his family members had participated in the last rites, the F.I.R. was not lodged till 13.5.2008. Therefore, there is inordinate delay in lodging of the F.I.R. The inordinate delay has not been explained by the prosecution. The non-explanation is fatal to the prosecution.

6. Thirdly, according to Punji Lal (P.W.1) and according to Punji Bai (P.W.2), the couple used to live happily. Thus, there is no evidence of a dowry demand.

7. Forthly, there is no evidence to show that "soon before death", there was a dowry demand. Therefore one of the ingredients of offence under Section 304B I.P.C. is not made out.

8. Lastly, relying upon the case

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