Bombay High Court Ganesh Y. Bhutekar-vs-State Of Maharashtra on 30 July, 2004
Equivalent citations:2005 CriLJ 1221
Author: P Brahme
Bench: P Brahme
P.S. Brahme, J.
1. Heard Mr. Anand Jaiswal, learned Advocate for the appellant and Mr. Laniewar, learned A.P.P. for the respodnent.
This appeal is directed against the Judgment and Order of conviction and sentence dated 20-11-2003 passed by the 1st Ad hoc Additional Sessions Judge, Buldana in Sessions Trial No. 99/2001 against appellant, convicting him for offences under Sections 304-B and 498-A of I.P.C. and sentencing him to rigorous imprisonment for 7 years and fine of Rs. 1000/-, in default to undergo simple imprisonment for six months for offence under Section 304B, I.P.C., while no separate sentence was awarded for offence under Section 304A, I.P.C.
2. The appellant Ganesh along with his parents — Yadavrao and Sau. Shashikala and his brother Chandrakant was tried for offence under Sections 304-B, 306, 304-A, I.P.C.
and 506 read with Section 34 of I.P.C. in respect of incident that took place on 17-7-2001 when the victim Sharda [wife of appellant — Ganesh] died suicidal death due to consuming poison. Sharda was daughter of witness — Parashram (P.W. 2) and Shantabai (P. W. 3). Witness — Sanjay (P.W. 2) (sic) is her cousin while witness Eknath Shelke (P.W. 4) was her uncle. Admittedly she was married to appellant-Ganesh about 11/2 year before her death. It is the case of prosecution that the appellant demanded Rs. 3000/- after about six months of marriage and witness — Parashram gave that amount to appellant. But thereafter, the appellant, his parents and brother started illtreating Sharda to force her to bring amount of Rs. 10,000/- from her father for purchasing Auto Rikshaw. When Parashram came to know, he brought Sharda to his village –Dhandarwadi. While Sharda was with her parents about 2 months before appellant’s brother Yadavrao and his in-laws had assured to treat Sharda well and therefore, Parashram sent Sharda with them to her matrimonial home. After about 8 days, appellant-Ganesh had demanded Rs. 10,000/- and Parashram gave him that amount. It is the case of prosecution that on 11-7-2001 the appellant — Ganesh met Parashram at Sindkhed Raja and again demanded an amount of Rs. 10,000/-. But that time Parashram could not satisfy demand of Ganesh as he had no money. When Parashram told so to Ganesh, the latter retorted hinting threat to Parashram that he should see what would happen within a week. On 17-7-2001 at about 8.00 a.m. Parashram was informed that his daughter Sharda was vomiting. The driver of the Jeep who was sent for Parashram and his family members, disclosed that Sharda committed suicide by consuming poison. Parashram along with his family members went to Palaskhed Malakdev where he came to know that the appellant and his parents and brother ill-treated Sharda and administered poison.
3. When Sharda expired in the hospital information was given to Police Station on the basis of which accidental death was registered. The Police Officer reached and drew inquest panchnama — Exhibit 19 and Sharda’s dead body was sent for postmortem. The spot panchnama Exhibit 18 was drawn. Bottle containing Endosalfan which was found at the place where she was lying came to be attached in presence of panchas. Medical Officer conducted autopsy on the dead body of Sharda and prepared post-mortem notes — Exhibit 23 wherein he gave his opinion that probable cause of death was insecticide consumption. No external or internal injury was noticed on the body. Parashram gave report Exhibit 31, on the basis of which the first information report Exhibit 32 was drawn and offence was registered. Viscera bottles and bottle containing insecticide were forwarded to Forensic Science Laboratory, Nagpur for analysis. After receiving reports — Exhibits 43 and 44 and on completion of investigation the charge sheet was filed in the Court of J. M. F. C. Deulgaon Raja who in turn committed the ease to the Court of Sessions for trial. Before the Sessions Court when charge was framed vide Exhibit 11, the accused persons including appellant abjured plea and claimed to be tried. Their defence was that of total denial and false implication.
4. At the trial the prosecution examined in all five witnesses including Parashram, Shantabai, Sanjay and Eknath. Defence did not dispute the fact that Sharda committed suicide and died suicidal death. The opinion given by the Medical Officer who conducted autopsy on the dead body clinchingly goes to show that the cause of death of Sharda was due to consumption of insecticide. This therefore, clinches the issue that Sharda died suicidal death. The trial Court accepted evidence of witnesses and came to the conclusion that the appellant was responsible for victim Sharda’s suicidal death as she was subjected cruelty due to nonfulfillment of his unlawful demand of dowry and that is how he was found guilty for offences under Sections 304-B and 498-A, I.P.C.
, I.P.C. and accordingly sentenced as stated in earlier part of Judgment was awarded. However, he was acquitted for offence under Sections 306 and 506 of I.P.C. The other accused persons were acquitted of all the offences with which they were charged. Hence this appeal by the appellant challenging his conviction and sentence.
5. I have heard Mr. Jaiswal, learned counsel for the appellant and Mr. Lanjewar, learned APP. for respondent. I have gone through the evidence on record with the assistance of learned counsel for the parties. The counsel for appellant assailed conviction of appellant for offence under Sections 304-B and 498-A, I.P.C.
contending that the evidence on record is not at all sufficient to establish that the victim Sharda was subjected to cruelty by the appellant and that too for non-fulfillment of demand as alleged by the prosecution. He submitted that evidence of Parashram, Shantabai, Sanjay and Eknath on the point of physical cruelty to Sharda is vague and of general in nature. No witness has stated in his evidence as to what type of ill-treatment Sharda was subjected. Even as regards the demand of amount, alleged to have been made by the appellant from time to time, the learned counsel submitted that the evidence is inconsistent and contrary to each other. It is contended that the inconsistency in the evidence of the witnesses is so glaring that their evidence does not inspire confidence and therefore on such evidence the offences are not made out. The evidence is not probable. The learned counsel pointed out that no complaint was lodged in the police station when the parents of Sharda came to know that their daughter was subjected to ill-treatment, on account of non-fulfillment of demand. As regards the third demand of amount of Rs. 10,000/- which was stated to be at Sindkhed Raja, it is submitted that intrinsically the claim in that regard does not stand probable as there was no occasion for the appellant and Parashram — father of victim Sharda to meet at that place on 11-7-2001. He therefore, urged that the trial Court has committed an error in convicting the appellant when on the same evidence the trial Court acquitted him of the offence under Section 306 of I. P. C.
6. The learned APP Mr. Lanjewar, submitted that admittedly victim Sharda died suicidal death within 11/2 year after her marriage with appellant. It is borne out on the evidence on record that earlier twice demand of appellant for amount of Rs. 3,000/- and Rs. 10,000/- was fulfilled by Parashram. However, his third demand for amount of Rs. 10,000/- could not be fulfilled by him as he had no money. So, when it was frankly told by Parashram to appellant — Ganesh, he almost threatened Parashram of consequence of non-fulfillment of demand and admittedly within 7 days the victim Sharda committed suicide. The learned APP submitted that having regard to this factual position and taking into consideration the corn-mission of suicide by Sharda within 7 days of non-satisfying the third demand of appellant, in the nature of things, makes it probable and legitimate to hold that Sharda committed suicide as she was subjected to ill-treatment by the appellant. The learned APP submitted that in the nature of things Sharda who was married with the appellant just 11/2 years before and having lived with him in matrimonial home, had no reason to end her life by committing suicide. He therefore urged that appeal merits no consideration.
7. Victim Sharda died suicidal death on 17-7-2001. She was married to appellant –Ganesh about 11/2 years prior to her death. It is the case of prosecution that Sharda was subjected to cruelty by the appellant on account of non-fulfillment of his demand of amount. As the death of Sharda was otherwise than under normal circumstances and that too within seven years of her marriage and soon before her death, she was subjected to cruelty or harassment by her husband for or in connection with any demand for dowry, the appellant is held accountable for her “Dowry Death”. For such dowry death punishment is provided under Sub-section (2) of Section 304-B, I.P.C. The said dowry death is defined under Sub-section (1) of Section 304-B, I.P.C. It is crystal clear from the wording of Sub-section (1) of Section 304B that when the death of a woman is caused by burns or bodily injuries or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death” and such husband or relative shall be deemed to have caused her death. In this context it is very relevant to refer to presumption under Section 113B of Evidence Act. Section 113B reads :
“Section 113B — Presumption as to dowry death — When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.”
Explanation : For the purposes of this section “cruelty” shall have the same meaning as in Section 498A of the I.P.C.”
Section 498-A, I.P.C.
of Indian Penal Code added by virtue of the Criminal Law (2nd Amendment) Act 1983 reads as follows :
“Husband or relative of husband of a woman subjecting her to cruelty — Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation : For the purposes of this section cruelty means :
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health [whether mental or physical] of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”
A Bare reading of this newly added provision of law makes it clear that when husband or any relative of his is guilty of cruelty to the wife as defined by explanation to Section 498-A, I.P.C.
and if the woman has died otherwise than under normal circumstances, within 7 years of her marriage and cruelty to which she was subjected was in connection with non-fulfillment of demand for dowry, then the husband is accountable for such death of the woman.
8. In the case before hand cruelty alleged is as defined under explanation (b) of Section 498-A, I.P.C.
. The reason being that the prosecution has come up with the case that deceased Sharda was subjected to cruelty and harassment by the appellant for nonfulfillment of his demand. Our High Court in the decision reported in 1993 Cri LJ 3019 in the case of Ravindra Pyarelal Bidlan v. State of Maharashtra — has observed :
“Sub-section (b) of the explanation to Section 498-A, I.P.C. provides that cruelty means harassment to a woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her meet such demand. Sub-clause (b) does not make each and every harassment cruelty. Harassment has to be with a definite object, namely to coerce a woman or any person related to her to meet any unlawful demand. Hence mere harassment by itself is not cruelty. Mere demand for property etc. by itself is also not cruelty. It is only when harassment is shown to have been committed for the purpose of coercing a woman to meet demand that is cruelty and this is made punishable under section. In other words it is not every type of harassment or every type of cruelty that would attract Section 498-A, I.P.C.. It must be established that beating or harassment with a view to force the wife to commit suicide or to fulfill illegal demands of husband or in laws.”
9. It is therefore, clear in mind that in order to bring home guilt to the accused to offence under Section 498-A, I.P.C.
, I.P.C., it is imperative for the prosecution to establish 1] that there was unlawful demand by him and 2] the victim i.e. wife was subjected to harassment with the definite object i.e. to coerce her to meet unlawful demand. It is in this sense that the prosecution has to establish on evidence on record the factum of cruelty as well as harassment on account of non-fulfillment of demand.
As a consequence of this legal position, for raising presumption under Section 113B of Evidence Act, it is imperative to establish that a married woman is subjected to cruelty or harassment. Presumption would be drawn only when suicide is committed within seven years of marriage of the woman, the married woman is subjected to cruelty and this cruelty was on account of non-fulfillment of illegal demand. Therefore, it goes without saying that unless the factum of cruelty is proved and established beyond doubt, on the evidence on record, no presumption could be drawn,
10. The counsel for the appellant submitted that even for conviction for offence under Section 304B, I.P.C. it must be established that there had been demand for amount and the deceased had been harassed in connection with demand of amount as contemplated under Section 498-A, I.P.C.
, Explanation (b) I.P.C. His submission is that there is no convincing evidence on demand and cruelty in connection with that. The harassment on account of non-fulfillment of demand must also be proximate to the time of death and if demand of dowry had been made long back and thereafter there is no evidence that such demand had continued thereafter, the conviction under Section 304B cannot be based even if unnatural death takes place long after the demand had been made. The learned counsel for the appellant also submitted that conviction under Section 498-A, I.P.C. is not warranted in the facts and circusmtances of the case because the evidence of cruelty is absent.
11. I have critically examined the material evidence led by the prosecution. The evidence consists of evidence of Parashram, Shantabai, Sanjay and Eknath. I have also considered the surrounding circumstances. It is pertinent to note that on the factum of demands and cruelty the prosecution is resting its claim on the evidence of these four witnesses which are close relations of deceased — Sharda. It has come in the evidence of Investigating Officer — Sanjay Dhumal (P.W. 6) that he has recorded statements of persons residing in the neighborhood of the appellant. However, the prosecution has not examined even a single witness whose statement has been recorded. It does appear that relations between the accused and the witnesses were not happy. The relations between the families were strained. Hence it is possible that these witnesses who were close relatives of deceased — Sharda, have a natural grouse against the accused. Their tendency to exaggerate cannot be ruled out as such the tendency is natural and it is part of human nature. It therefore becomes necessary to examine the evidence more critically especially because in the present case no independent evidence is forthcoming though it was available. One therefore, naturally looks for some assurance for holding that the evidence is genuine and deserves to be accepted. With these remarks I shall proceed to examine the evidence of these witnesses. Before I do so, I would like to observe that the prosecution case rests solely on the evidence of witnesses who are close relations of Sharda and witnesses who are hostile towards the accused.
12. The witness — Parashram in his evidence stated that for about two months his daughter — Sharda was happy. At the time of Panchami he went to matrimonial home of Sharda and as there was ill-treatment to her he brought her to his house. Sharda disclosed him that accused No. 1 used to beat her on the ground to bring amount from him. After about 6 months of the marriage — accused No. 1 had come to demand amount and he gave Rs. 3000/- to him. When he went to the matrimonial home, his daughter — Sharda stated that accused No. 1 was demanding Rs. 10,000/-for purchase of Auto Rickshaw. At the time of Holi he gave Rs. 10,000/- to accused No. 1 for purchase of Auto Rickshaw. On 11-7-2001, accused No. 1 had again demanded Rs. 10,000/- at Sindkhed Raja, but that time he told him that he had no amount. The accused No. 1 thereafter stated that he would see as to what would happen within a week.
13. This version of witness — Parashram is inconsistent with the report Exhibit 31 which he lodged in the Police Station on 17-7-2001. He admitted that accused No. 1 had maintained his daughter — Sharda nicely for two months, but that fact is not mentioned in the report Exhibit 31. He admitted that at the time of giving report he has not disclosed that at the time of Holi he gave Rs. 10,000/-, but he claimed that at the time of giving the report he stated that after six months of marriage he gave Rs. 3000/- to accused No. 1. He admitted that in the report Exhibit 31 nothing of that sort was mentioned. He could not assign any reason for the omission in his statement and report as regards the payment of amount of Rs. 10,000/- and Rs. 3000/-. He admitted that he did not give report against accused No. 1 complaining that he was demanding Rs. 10,000/- and that he was giving ill-treatment to Sharda. In his report he has stated that all the accused were beating Sharda and asking her to bring Rs. 10,000/- from him for the purchase of three wheeler, he fetched Sharda to Dhandarwadi village and that two months ago her father in law, the non-applicant No. 2 and his brother in law hailing from Narayankhed, came and took Sharda along with them by giving assurance to treat her well. Then after 8 clays Sharda’s husband came to him and demanded Rs. 10,000/- which he paid. It is seen that the evidence of Parashram as to demand of Rs. 10,000/- for purchasing vehicle and also payment of the said amount is inconsistent with what has been stated in the report Exhibit 31.
14. The witness — Sanjay (P.W. (sic)) in his evidence stated that deceased Sharda used to come to his house at the time of festival and after about two months when ever she used to come to his house, on his enquiry, she disclosed that accused No. 1 was demanding amount and giving ill-treatment to her and that at the time of Sankrant she told that the appellant was demanding amount and when appellant had come at the time of Sankrant, her father gave Rs. 3000/- to him and thereafter Sharda went with appellant to her matrimonial home. He further stated that at time of Holi, Sharda had come with her father and that time she disclosed about ill-treatment by the appellant and 011 demand of amount by the appellant his father gave. Rs. 10,000/- to him. But due to ill-treatment they did not send Sharda to her matrimonial home. He stated that accused No. 1 along with Nimbaji Cheke had come to their house of father of Sharda and on their assurance they sent. her to her matrimonial home. He further stated that before about 8 months of Nag Panchami the appellant met father of Sharda who disclosed him that the appellant had demanded Rs. 10,000/- for purchasing Auto Rickeshaw and after about 8 days they were informed about death of Sharda. Evidence of this witness has been totally shattered in his cross-examination by the defence. He fairly admitted that Police did not ask him any thing about the incident, he could not tell the date, month or the year of giving of amount of Rs. 10,000/- to accused No. 1. That apart his evidence is totally at variance with that of witness — Parashram. According to him the demand of Rs. 3000/-was at the time of Sankrant while witness Parashram stated in his evidence that the demand was made at the time of Panchami. As regards the second demand of Rs. 10,000/- for purchase of Auto Rickshaw though he stated that the amount was paid, Sharda was not sent to her matrimonial home due to ill-treatment. In addition to that he stated only about demand of further amount of Rs. 10,000/-. But his version in that regard is totally inconsistent with that of witness — Parashram in as much as this witness has not stated that. Parashram expressed his inability to pay additional amount of Rs. 10,000/- for purchase of Auto Rickshaw. He did not state that when Parashram refused to pay amount, the appellant almost threatened him saying that within a week thereafter he would see the consequences of non-payment of amount. Even as regards the payment of amount of Rs. 10,000/- there is disparity in the sense according to this witness the amount was paid at the time of Holi. According to this witness the demand for amount of Rs. 10,000/- was before 8 days of Nag Panchami. It is thus seen that there is glaring disparity in the evidence of these two witnesses as to the date, time and time of demand and about the sequence of events. It is again very significant to note that though the witness stated about ill-treatment, his evidence in that regard lacks of necessary details as to the time when she was subjected to ill-treatment as also the type of ill-treatment meted out to her. On that the witness has stated that Sharda used to tell him that the accused No. 1 was demading amount and giving ill-treatment to her.
15. The witness Shantabai slated in her evidence that the appellant maintained Sharda nicely for two months and thereafter they used to beat her for demand of amount. The appellant used to beat Sharda while other accused persons were asking Sharda to bring amount. She claimed that she gave Rs. 3000/- to accused No. 1 and thereafter Sharda went to reside at her matrimonial house. The accused were giving ill-treatment to her. Her husband had brought Sharda to their house, where she stayed for two months. Then accused No. 2 and other persons had been to their house, and they had assured that there would be no ill-treatment to Sharda and therefore, they sent Sharda with accused and other persons. After about 8 days the appellant had come to their house and demanded Rs. 10,000/-from her husband for the purchase of Auto Rickshaw and her husband gave Rs. 10,000/-to him. She then stated that her husband disclosed her that appellant had demanded Rs. 10,000/- and slated that the appellant told her that he would see what would happen within a week. In cross examination this witness admitted that she used to go to matrimonial home of Sharda to meet her. In her cross examination she stated that she did not lodge report in police station about ill treatment to Sharda. Her version is again contrary to the evidence of witnesses –Parasharam and Sanjay. Admittedly she did not lodge report against the appellant though time and again according to her when ever Sharda used to visit her house had complained of ill-treatment to her by the appellant. Her evidence as to the demand of amount, by the appellant is not consistent with that of the witnesses Parashram and Sanjay. In her evidence she stated that after the first demand was satisfied Sharda was sent to her matrimonial home and after 8 days appellant came to demand Rs. 10,000/- for purchase of motor vehicle which was also fulfilled. It is pertinent to note that the witness did not claim of ill-treatment to her daughter – Sharda during that period. Again her evidence on cruelty or ill-treatment is very weak.
16. The last witness in this context is Eknath Shelke (P.W. 4), the uncle of the victim-Sharda, in his evidence he claimed that in the month of January before Sankrant his brother gave Rs. 3000/- to the appellant. He stated that thereafter Sharda used to come to his house, she disclosed that the appellant used to beat her and used to demand amount. Then according to him three months after giving the amount of Rs. 3000/-, there was ill-treatment to Sharda and she was asked to bring Rs. 10,000/- and therefore, his brother brought her to his house and that time she stayed for two months with them and then accused No. 2 along with his relatives had come to his brother’s house and in his presence accused No. 2 and his relatives requested to send Sharda, but her father had refused to send her. He stated that meeting was held in which the accused No. 2 and his relatives gave assurance that Sharda would not be ill-treated and thereafter they sent Sharda. After about 8 days, the appellant had come and demanded Rs. 10.000/- for purchase of Auto Rickshaw, but the amount was not given. His evidence on the point of cruelty / ill-treatment is again very vague. In his evidence he has stated only about demand of Rs. 3000/- which was satisfied. It is to be noted that other prosecution witnesses –Parashram, Shantabai and Sanjay have claimed in their evidence that the second demand was for Rs. 10,000/- which was also satisfied and when the third demand for Rs. 10,000/- was made by the appellant, Parashram refused to make payment and then the appellant made him aware about the consequences to follow within a week. It is in this context the witness Eknath is silent as regards the demand of Rs. 10,000/-, and also fulfillment of that demand. His evidence shows that there was demand of Rs. 10,000/- for purchase of Auto Rickshaw but the amount was not given. As against that witnesses who were examined earlier to him have emphatically stated that the demand of Rs. 10,000/- for purchase of Auto Rickshaw was satisfied by Parashram by making payment of the amount. Even as to the sequence of events as stated by this witnesses is not, consistent with that stated by other witnesses.
17. It is a matter of record and also stated by the Investigating Officer Sanjay Dhumal (P. W.6) that on 17-7-2001 he received papers for investigation in AD-701 and he therefore, went to the spot to Palaskhed and in the course of enquiry he prepared spot panchnama Exhibit 18 and also seized the bottles containing insecticide and then dead body was sent to hospital for postmortem. In his evidence he has stated that at Police Station he found that Police Station Officer Manwar (P. W, 5) had registered the crime on the basis of the report field by Parashram. It has come in the evidence that witnesses -Parashram, Shantabai, Sanjay and Eknath after receiving the message that Sharda died, immediately came to her matrimonial house and they saw there her dead body. It is specifically stated by witness Parashram in his evidence that after cremation of Sharda he had returned to Police Station, Sindkhed Raja by lodging report Exhibit 31. It is very much clear from the evidence of P. S. I. Dhumal that he was assigned to conduct enquiry in accidental death which was reported to the Police Station by Medical Officer. It is also clear from Exhibit 17 Khabri Report that suicidal death of Sharda was reported to the Police Station by the Police Patil Chandan Sakharam Bhutkar. The evidence of P. S. I. while making enquiry into the accidental death practically did investigation in the matter in as much as he visited the place of occurrence and prepared spot panchnama Exhibit 18 so also inquest panchnama Exhibit 19. It is the claim of. witness Parashram that in the evening on the same day he went to Police Station and lodged report — Exhibit 31. It was on his report that the offence was registered and P. S. I. Dhumal was entrusted with the investigation in the matter. He recorded statement of witnesses including Parashram on the next day. The witnesses in their statements have no doubt stated about the demand and ill-treatment for non-fulfillment of demand by appellant as has been stated by them in their evidence before the Court. But then what is pertinent is that though P.S.I. Dhumal was very much in the village conducting enquiry into the accidental death, these witnesses did not disclose him at that time much less insisted to record their statements. This has significance in the sense the witnesses all the while claimed that there was ill-treatment to Sharda on account of non-fulfillment of demand and they had reason to believe that Sharda was done to death by the appellant. Therefore, in all probability when these witnesses were very much present in the village at the time when P. S. I. Dhumal was conducting the enquiry which was almost part of investigation in the matter, they had opportunity to disclose him about the factum of unlawful demand and ill treatment or harassment of the victim Sharda for non-fulfillment of the demands. In my opinion the conduct of these witnesses in not disclosing to P. S. I. Dhumal at the time when they had opportunity first, basically impairs credibility of their claim which they have made before the Court in their evidence about the demand and ill-treatment on account that account to deceased Sharda. Therefore, it is in this context the independent evidence was absolutely necessary to lend assurance to the claim made by these witnesses before the Court. It is pointed out that P. S. I. Dhumal has admitted that the statements of neighbours have been recorded during the course of investigation. But prosecution has not examined not even a single soul. It is needless to say that if really there had been ill-treatment of deceased Sharda on account of non-fulfillment of demand of amount, there would have been disclosed about the same by her to the persons residing in the neighbourhood. Though investigating of machinery has sought to collect evidence independent persons residing in the neighbourhood, the prosecution has not adduced the evidence of neighbours who may have thrown some light on the treatment which was meted out to Sharda. This by itself may not be conclusive but as a factor which can be taken into account. The relevancy of that type of evidence of independent persons residing in the neighbourhood is necessarily required when the Court is left to assess the evidence of close relations of the deceased who are naturally interested and at the same time were against the appellant. The witnesses have claimed that whenever Sharda used to come to their house she was complaining of ill-treatment and harassment to her by appellant on account of non-payment of amount as demanded by him. If that was so then in all probability any kind of ill-treatment caused to her by the appellant and his partners must have been noticed by the neighbours or at least she would have disclosed to them, more particularly to women residing in the neighbourhood. Absence of this evidence in my opinion coupled with the fact that evidence on demand is totally inconsistent and the evidence on cruelty is vague, the evidence of these witnesses lacks of necessary assurance which is required in criminal trial to bring home the guilt essentially in respect of the offences of the present nature.
18. The learned A. P. P. has given much emphasis on the fact that the victim died suicidal death within a period of 11/2 years after her marriage and therefore, having regard to the presumption under Section 113A of the Evidence Act the Court has to presume having regard to all the other circumstances of the case that such suicide has been abetted by her husband or such relative of her husband. It is every difficult to accept this submission as no such presumption can be drawn having regard to the facts and circumstances of the case. Merely because the death has occurred within seven years from the date of her marriage, that by itself is not sufficient to raise presumption that the unnatural death of the victim was on account of harassment caused to the woman by her husband. It is crystal clear that for raising presumption under Section 113A of the Evidence Act it is imperative for the prosecution to establish that a married woman was subjected to cruelty and harassment. It is also imperative for the prosecution to establish beyond reasonable doubt that the cruelty was on account of non-fulfillment of illegal demands. This necessarily means that the factum of demand is also to be established indepently. The harassment on account of non-fulfillment of demand must also be proximate to the time of death. In the instant case as pointed out earlier on the basis of critical analysis of the evidence of the factum of either ill-treatment or demand is not at all established beyond reasonable doubt.
19. The learned counsel for the appellant has rightly placed reliance on the decision of the Apex Court reported in AIR 1997 SC 1873 : (1997 Cri LJ 1927), Sham Lal v. State of Haryana, wherein it is held that it is imperative for invoking legal presumption under Section 113B of the Evidence Act, to prove that “soon before her death” she was subjected to such cruelty or harassment. In the case before the Apex Court what the prosecution achieved in proving at the most was that there was persistent dispute between two sides regarding dowry paid or to be paid both in cash and in kind and on account of failure to meet the demand for dowry the victim was taken by her parents to her house about 11/2 years before her death. There was nothing on record to show that she was either treated with cruelty or harassed with the demand of dowry during the period between her having been taken to the parental home and her tragic end. Therefore, the Apex Court held that in the absence of any such evidence it is not permissible to take recourse to the legal presumption envisaged in Section 113B of the Evidence Act. The rule of evidence is prescribed in law to obviate the prosecution of the difficulty to further prove that the offence was perpetrated by the husband, as then it would be the burden of the accused to rebut the presumption.
20. In the case before hand the appellant was charged for offence under Section 304B for committing dowry death of victim-Sharda. In that context the prosecution relied on the legal presumption envisaged in Section 113B of the evidence Act. Section 113B of the evidence Act which is already reproduced.
It is seen that even in respect of dowry death as stated above, when the presumption as envisaged under Section 113B of the Evidence Act is to be raised, basically the prosecution has to prove that there was demand of dowry and the woman was subjected to harassment of cruelty or harassment for or any kind with such demand for dowry. In the case before hand evidence on demand of amount and causing harassment or ill-treatment in connection therewith is not established. In other words the evidence as stated earlier does not inspire confidence to hold that the victim was subjected to ill-treatment and harassment on account of non-fulfillment of demand that she was driven to commit suicide on that account. There is absolutely no proximity in commission of suicide and alleged ill-treatment or cruelty that was meted out to the victim. In fact as rightly pointed out by the learned counsel for the appellant even after the appellant had retorted on 11-7-2001 when witness Parashram refused to accede to his demand for amount of Rs. 10,000/- to see the consequence of refusal for non fulfillment of demand, there is no evidence to show that during the spell of 7 days from 11-7-2001 to 17-7-2001, the victim was subjected to any kind of harassment or cruelty when she was at the house of the appellant.
21. The learned counsel for the appellant has also placed reliance on the decision of Apex Court in AIR 1999 SC 1476 : (1999 Cri LJ 596) Satpal v. State of Haryana, in which the conviction of the appellant therein for offence under Section 304B and 306 I. P. C. was under challenge and the Apex Court set aside the conviction for offence under Section 304B and 306 as the evidence of solitary witness i.e. brother of deceased would not convincing to hold that there was demand of dowry and that the deceased was harassed in connection thereof. The Apex Court found that there was no convincing evidence on the basis of which any finding can be made that there was demand for dowry and the victim was subjected to cruelty in connection with. However, it is to be noted that the Apex Court maintained conviction of the appellant under Section 498-A of I. P. C. as there was clear evidence that on some occasion the deceased was humiliated for insignificant presents which were sent from the house of the parents of the deceased.
22. In the case before hand the trial Court has already acquitted the appellant of the offence under Section 306 I. P. C. It is very material to note that though while convicting the appellant for offence under Sections 304B and 498-A I. P. C., the trial Court found that there was evidence to establish that victim Sharda was subjected to cruelty as contemplated in explanation to Section 498A I. P. C. I have already made it clear that factum of demand, factum of subjecting a woman to cruelty and the factum of woman having committed suicide are independent. That is to say merely because ill-treatment is established and there has been suicide committed by the woman that itself is not sufficient to hold the accused guilty for offence under Section 306 of I. P. C.
23. In the decision reported in 2004 All M.R. (Cri) 452 in case of Smt. Vandana w/o Shridhar Pise v. Shridhar Kishan Pise, decided by me “on the point of cruelly” as envisaged under Section 498A I. P. C., it is observed — “the legislative intent is clear enough to indicate that in particular reference to Explanation (b) there shall have to be a series of acts in order to be harassment within the meaning of Explanation (b). The basic purport of statutory provision contained in Section 498-A I. P. C. is to avoid “cruelty” which stands defined by attributing a specific statutory meaning attached thereto as noticed therein. Two specific instances have been taken note of in order to ascribe a meaning to the word “cruelty” as is expressed by legislature:– whereas Explanation (a) involves three specific situations namely : (i) to drive woman to commit suicide or (ii) to cause grave injury or (iii) danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in Explanation (b) there is absence of physical injury but the legislature thought it fit to include only coercive harassment which obviously as the legislative intent expressed is equally heinous to match the physical injury :–Whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embrace the attributes of “cruelty” in terms of Section 498-A. Therefore, if in a given case suicide is ruled out, in that event applicability of Section 498-A can be had only in terms of Explanation (b) thereto which in no uncertain terms records harassment of the woman to constitute cruelty only in the event if such harassment being with view to coerce her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”
24. In the case at hand there is absloutely no evidence of physical or mental cruelty of any nature envisaged under explanation (a) of Section 498-A I. P. C. The prosecution case in respect, of cruelty was in terms of Explanation (b) to Section 498-A I. P. C, only. As stated earlier as the evidence is lacking even to establish cruelty, the conviction of the appellant for offence under Section 498-A can not sustain.
25. In the result in my considered opinion, the prosecution has utterly failed to establish beyond reasonable doubt that the appellant has subjected his wife – Sharda to ill-treat and harassment on account of nonfulfillment of demand and that Sharda committed suicide in connection therewith. The trial Court has committed error in holding the appellant guilty for offence under Sections 498-A and 304B of I. P. C. As such order of conviction and sentence passed by the Court below cannot sustain and same has to be quashed and set aside. The appeal will have to be allowed. Hence the order.
26. The appeal is allowed. The order of conviction and sentence passed by the Trial Court in Sessions Trial No. 99/2001 dated 20-11-2003 is quashed and seaside. The appellant be released forthwith, if not required in any other case.