JUDGMENT :

DEEPAK ROSHAN, J.

1. Heard learned counsel for the parties.

2. The instant criminal appeal has been preferred against the judgment of conviction and order of sentence dated 12.06.2003 and 13.06.2003, respectively, passed by learned 9th Additional Sessions Judge, Hazaribag corresponding to S.T. No. 257 of 97, whereby the appellant was convicted for the offence under Section 304 B of the IPC and sentenced to undergo R.I. for a period of Eight years.

3. The prosecution case in short is that the marriage of Padma Devi, niece of the informant was solemnized, with Taleshwar Mahto and at the time of marriage Rs. 30,000/- with household articles were given. After the marriage, the appellant (Fufa Sasur) harassed the victim with a direction to bring Rs. 20,000/- as balance of dowry otherwise he would murder her. The victim whenever came to the parental house has complained about the harassment made with her in her sasural. This affair continued after marriage and on 14.11.1996 all the accused persons administered poison with the intention to kill her. Thereafter, she was taken to the RMCH for treatment where she died on the same day.

4. Mr. Niraj Kishore, learned counsel appearing for the appellant made the following submissions:

(i) For the same set of evidences, the other accused persons have been acquitted including the husband but the appellant being uncle (Fufa Sasur) has been convicted for the offence under Section 304(B) IPC.

(ii) No specific date or month has been given so far as demand of dowry is concerned and the learned trial court has given finding that it appears that it was a continued offence. This finding of the learned trial court is perverse in nature, inasmuch as, proximity of demand soon before the death is a sine qua non and if it has not been proved by the prosecution then the benefit of doubt should be given to the appellant. Further, no information with respect to harassment of the victim by the appellant has been ever given to the neighbors and/or to the police.

(iii) Even otherwise, the appellant being uncle (Fufa Sasur) cannot be involved in the demand of dowry.

(iv) The cause of death has been shown to be due to Aluminium Phosphate and the learned trial court himself has admitted that the same is used in agriculture; as such there can be a possibility that the victim might have touched part of Aluminium Phosphate and thereafter consumed the food.

(v) Even otherwise, PW-1, who is uncle of the victim, has admitted in his cross-examination that the victim was suffering from epilepsy.

Relying upon the aforesaid submission he submits that the impugned judgment be set aside.

5. Learned APP has supported the judgment and submits that there is no error or perversity in the impugned judgment.

6. Having heard learned counsel for the parties and after going through the impugned judgment and the documents available on LCR and looking to the comprehensive facts and circumstances of the case, it appears that no specific date or month has been stated by either of the PWs in their deposition. The evidence of PW-1 and PW-2 was not on the point of death or demand of dowry. PW-3 in his examination deposed that “daughter died in RMCH, Ranchi, Dr. Upendra Thakur has stated in his presence at Gola that she was administered poison” however during cross examination he deposed that “I did not go to doctor” and admitted that he gave hearsay evidence and he got information of demand of dowry from father of victim.

Further PW-5 deposed that the daughter narrated the occurrence of torture to him and family members however he could not remember the month or year of assault.

From perusal of the deposition of PWs it clearly transpires that no specific date or month has been brought on record regarding torture in relation to demand of dowry by the appellant. Hon'ble Apex Court in the case of Baijnath vs. State of Madhya Pradesh, (2017) 1 SCC 101 has laid down the essential ingredients of dowry death:

“25. Whereas in the offence of dowry death d