2006 ALL MR (Cri) 1296
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)

P.S. BRAHME, J.

Ramesh S/O. Asaram Dhupe & Ors.Vs.State Of Maharashtra

Criminal Appeal No. 233 of 1995

1st March, 2006

Petitioner Counsel: Ms. PRATIBHA PATIL,Shri. S. R. BARLINGE
Respondent Counsel: Shri. S. P. DAUND

(A) Penal Code (1860), S.306 - Evidence Act (1872), S.113-A - Abetment of suicide by a married woman - Proof - There must be legal evidence to establish that victim was subjected to cruelty and that she died suicidal death as she was subjected to ill-treatment and cruelty. AIR 1986 SC 752, 2003 ALL MR (Cri) 1530 and 2004 ALL MR (Cri) 1220 - Referred to. (Para 19)

(B) Penal Code (1860), S.306 - Evidence Act (1872), S.113-A - Presumption as to abetment of suicide by a married woman - Absence of any explanation by accused persons, when they were examined under S.313 of Criminal P.C., by itself will not be sufficient to infer that the accused persons have not denied that the victim died suicidal death.

Absence of any explanation by accused persons, when they were examined under Section 313 of Cr.P.C. 1973, by itself will not be sufficient to infer that the accused persons have not denied that the victim died suicidal death.

Coming to the case at hands, there is absolutely no evidence of either nature to show that the victim died suicidal death. It would be fallacious to say that the dead body of the victim Shantabai was found in the well and because she was subjected to ill-treatment, she committed suicide by jumping into the well. In this case, as the accused persons have not admitted that Shantabai died suicidal death by jumping into the well. Therefore, for the sake of discussion, even if it is accepted that the victim was subjected to ill-treatment as alleged by the prosecution, yet no inference could be drawn that the victim died suicidal death. The possibility of victim having died accidental death, in such circumstances, cannot be ruled out. The observations of the trial court that the victim was subjected to ill-treatment, because of non-fulfillment of demand of accused for Rs.2,000 and/or a wrist watch and, therefore, she might have committed suicide; the victim, a married woman, having a minor daughter, had no reason to put her life to an end and therefore accused must have abetted her to commit suicide, cannot be accepted. Once it is found that the prosecution has failed to establish that the victim died suicidal death, no presumption could be drawn as envisaged under Section 113-A of the Indian Evidence Act. [Para 19,20]

(C) Evidence Act (1872), S.113-A - Penal Code (1860), S.306 - Presumption under S.113-A - Failure of prosecution to prove that deceased was subjected to ill-treatment and cruelty - Such failure of prosecution itself would bring out the infirmities in drawing presumption under S.113-A of the Evidence Act. (Para 28)

Cases Cited:
Sakatar Singh Vs. State of Haryana, 2004 AIR SCW 2388 [Para 16]
State of Maharashtra Vs. Tukaram N. Mane, 2004 ALL MR (Cri) 1220=2004(2) B.Cr.C. 743 [Para 17]
Prabhakar Pandurang Ingole Vs. State of Maharashtra, 2003 ALL MR (Cri) 1530 [Para 18]
Chanchal Kumari Vs. Union Territory, Chandigarh, AIR 1986 SC 752 [Para 19]


JUDGMENT

JUDGMENT :- This is an appeal against the judgment and order passed by the Additional Sessions Judge, Jalna, on 21-7-1995, in Sessions Case No.28 of 1991, wherein, the appellants, while being acquitted of the offence under Section 304-B read with 34 of Indian Penal Code, were convicted for offence under Section 306 and 498-A read with IPC, and the appellant no.1 was sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs.200/-, in default to undergo rigorous imprisonment for six months for offence under Section 306 read with 34 I.P.C., and was also sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs.100/-, in default, rigorous imprisonment for one month, for offence under Section 498-A read with 34 I.P.C. So far as appellant Nos.2 and 3 are concerned, they were convicted for offence under Section 306 IPC and sentenced to suffer simple imprisonment for one year and to pay fine of Rs.100/-, in default, simple imprisonment for two months, and were also convicted for offence punishable under Section 498-A read with 34 IPC and sentenced to suffer simple imprisonment for six months and to pay a fine of Rs.100/- in default, simple imprisonment for one month.

2. The prosecution against the appellants arises out of complaint (Exh.42) by Narayan Ganpat Warude (PW-1), father of victim Shantabai, that was lodged by him on 17-4-1990 with Police Station, Tembhurni, on the basis of which offence was registered vide CR No.I-21/1990 under Sections 498-A, 304-B and 306 read with 34 IPC. As the prosecution case goes, and as has been stated by complainant Narayan, the dead bodies of victim Shantabai and her minor daughter Manda were found in the well situated within the precincts of village Ambegaon, which is a place of residence of present appellants-original accused persons.

3. It is an admitted position that victim Shantabai was married to appellant No.1 Ramesh, about 5-6 years before her death. After marriage, she was residing with her husband-accused No.1 and his parents - accused Nos.2 and 3 (Asaram and Kausabai). It was alleged by the prosecution that, though initially for some days after marriage, deceased Shantabai was treated well in her matrimonial home, later on she was subjected to cruelty by appellants because of non-fulfillment of their demand for Rs.2000/- and a wrist watch of RICCO company. The appellants were insisting Shantabai to bring the said amount and/or a wrist watch from her parents and as their demand was not satisfied, she was subjected to cruelty. It is further alleged that she was abused and assaulted.

The complainant Narayan (PW-1), though tried to convince accused persons and requested them not to ill-treat his daughter Shantabai, there was no change in the attitude of appellants and, therefore, Shantabai, while visiting her parents house on the eve of festivals, used to inform her parents and brother Ganesh (PW-3) about ill-treatment meted out to her, and even when the complainant Narayan and his son Ganesh visited matrimonial home of Shantabai, they came to know from Shantabai about ill-treatment given to her by the appellants.

It is the case of complainant Narayan that about three years prior to the incident, when he had been to the house of accused persons, he learnt that Shantabai was subjected to harassment and, therefore, when he tried to persuade and convince the appellants, requesting them not to harass his daughter, the accused persons, in stead of repenting over what they have done, held threats and continued harassment to Shantabai. It was some eight days prior to the incident, when Ganesh (PW-3), the brother of Shantabai, had been to village Dongaon for offering prayers to and seeking blessings of Goddess, there his sister Shantabai met him and told him that she was subjected to cruelty by all appellants and that they were asking for Rs.2,000/-. Ganesh, in turn, informed the complainant Narayan about the same.

4. On 16-4-1990, when complainant Narayan had been to village Tembhurni to attend weekly bazar, he came to know that his daughter Shantabai fell in a well. He, therefore, sent his son to Ambegaon, to verify the information. Accordingly, when Ganesh went to village Ambegaon, he saw that Shantabai and her daughter had died in the well. He also gave information to his father Narayan about the incident. That is how Narayan, though on the next day, lodged a complaint with Tembhurni Police Station, alleging that his daughter Shantabai committed suicide along with her daughter Manda, by jumping into the well, because of cruelty and harassment meted out to her by the appellants for non-fulfillment of their demand of Rs.2,000/- and/or a wrist watch.

5. Investigation proceeded, wherein, Dr. Randhe carried out autopsy on dead body of Shantabai and prepared post-mortem report (Exh.40). Neither the post-mortem report, nor the opinion given by the Medical Officer as to cause of death, was challenged or denied by the defence. As per the opinion given by the Medical Officer, Shantabai died due to asphyxia due to drowning. In that regard, the trial court has observed in paragraph 17 of its judgment that, the defence has not disputed the fact that Shantabai died suicidal death. This was in the sense, on behalf of defence, there was no suggestion that Shantabai fell into the well along with her daughter and, as such, met accidental death. One does not know as to how Shantabai fell in the well, because there is no direct or circumstantial evidence to show that she committed suicide by jumping into the well. Therefore, it may be said that as the dead body was found in the well, and in the absence of any material evidence, all that has been claimed by the prosecution is that Shantabai committed suicide and died suicidal death.

6. Before the trial court, when the accused persons pleaded not guilty to the charge and claimed to be tried, the prosecution examined in all four witnesses, including complainant Narayan (PW-1), his nephew Mohan (PW-2) and son Ganesh (PW-3) and Trimbak Ban, the Investigating Officer (PW-4).

7. The circumstances relating to the demand of the amount and consequent harassment and ill-treatment to Shantabai for non-fulfillment of the demand, have been put to the accused persons, when their statements under Section 313 of the Code of Criminal Procedure, 1973, were recorded. The defence of the accused persons in that of denial.

8. The trial court, after appreciation of the oral evidence, though rejected the prosecution case, in so far as it relates to offence under Section 304-B IPC, accepted the prosecution case as regards unlawful demand for Rs.2,000/- and/or a wrist watch and consequential harassment to Shantabai, for non-fulfillment of the demand. The trial court found that the factum of ill-treatment, as contemplated under explanation to Section 498-A IPC, has been established, and when it is not disputed that the victim died suicidal death, taking recourse to presumption under Section 113-A of Indian Evidence Act, since the death of the victim was within a period of seven years from the date of her marriage, it found the appellants guilty of offences under Sections 498-A and 306 IPC and accordingly, the appellants came to be convicted and sentenced as stated above and hence, the appeal.

9. I have heard Ms. Pratibha Patil, learned Counsel for the appellants, so also Mr. S. P. Daund, learned APP for the Respondent-State. With the able assistance of learned counsel for the respective parties, I have also gone through the evidence on record, so also the judgment of the trial court. The submissions made and contentions raised by the learned counsel for the appellants are to be considered in the background of some admitted facts, about which there is no dispute.

The victim died, as per the oral evidence of the witnesses, some 5-6 years after her marriage. After marriage, the victim was residing with her husband-respondent No.1 and in-laws (respondent Nos.2 and 3). It is not disputed that the victim, after marriage, used to visit her parental house on occasions and that stands probable, having regard to the fact that the distance between her parental house and matrimonial house, though at different villages, is only about three kilometres. It is also a matter of record that the complainant Narayan, so also his son Ganesh, used to visit matrimonial home of Shantabai to see her and the victim also used to meet them, whenever occasion arose. It is a matter of record that, Narayan, on 16-04-1990, when he was at weekly bazar at village Tembhurni, came to know that his daughter Shantabai jumped into the well. He, therefore, asked his son Ganesh to verify the information, by going to village Ambegaon. Accordingly, Ganesh, on going to Ambegaon, learnt that his sister Shantabai and her daughter have died in the well. It is further admitted that, witness Narayan lodged a complaint with Tembhurni police station on next day i.e. 17-04-1990.

10. Ms. Pratibha Patil, learned Counsel for the appellants, vehemently submitted that the trial court has not appreciated oral evidence of Narayan, Mohan and Ganesh (PWs.1, 2 and 3) in its correct perspective and that, all these witnesses being very closely related to the victim, their evidence ought to have been subjected to rigorous scrutiny with care and caution, as there is possibility of false implication of the accused persons, when victim Shantabai, being their near and dear one, committed suicide by jumping into the well. The learned counsel also pointed out from the evidence, and more particularly cross-examination of these witnesses, that the evidence, even as to demand and consequential harassment for non-fulfillment of the demand, is at variance. She has referred to evidence of witness Mohan, who happens to be cousin of victim Shantabai, who, in his evidence, has deposed about the things relating to demand and consequential harassment to Shantabai, which was not the claim even of father and brother of the victim Shantabai, namely, witnesses Narayan and Ganesh (PWs.1 and 3). This is in the background of admission by the complainant Narayan (PW-1) in paragraph 8 of his evidence to following effect;

"In the marriage of Shantabai, no dowry was settled. Dowry was not given to the accused in her marriage. There was no quarrel between us in the marriage on the point of dowry."

As against this, witness Mohan (PW-2), in his first examination stated that the accused were harassing Shantabai for dowry and a wrist watch. It is pertinent to note that this witness, when found to have given a go-by to the prosecution case, was declared hostile and when cross-examined by learned APP, vociferously stated;

"It is true that I stated before the police that Shantabai committed suicide because the accused were beating her in the gap of week of fortnight as she did not bring money".

Thereafter, when he was cross-examined by the defence, in his zeal to support the prosecution, he stated;

"I heard myself that the accused were demanding Rs.2,000/- and watch. I have not stated before the police that I heard it personally that the accused were demanding Rs.2,000/- and watch".

Witness Mohan has further stated that he heard twice that the accused demanded Rs.2,000/- from Shantabai, six months after her marriage. He also stated that, he heard that accused demanded Rs.2,000/- on two occasions in the gap of 15 days. To crown this all, in his further cross-examination, the witness has stated that cash amount of Rs.2,000/- and a watch were remained to be given to the accused in marriage of Shantabai. He further stated that in his presence, it was settled that in the marriage of Shantabai, cash amount of Rs.2,000/- and a watch were to be given to the accused.

11. Ms. Patil, learned Counsel for the appellants, referring to the evidence of witnesses Narayan and Ganesh, pointed out that the claim by the witnesses about the disclosure to them by Shantabai about harassment to her on account of non-fulfillment of demand of amount of Rs.2,000/- or a wrist watch, is totally at variance and does not seem to be probable. She, therefore, urged that, in the light of weight of the evidence on record, the trial court has committed an error in drawing presumption as to the death of Shantabai being suicidal. Learned Counsel submitted with emphasis that, on the basis of evidence on record even the factum of harassment and ill-treatment as alleged, is not established. Learned Counsel for the appellant, therefore, placing reliance on various decisions of the High Court, to which reference would be made hereinafter, submitted that the prosecution has utterly failed to establish that the accused persons have committed offence, with which they were charged and tried.

In the alternate, learned Counsel for the appellants also pointed out the affidavit filed by PW-3 Ganesh, the brother of deceased Shantabai, in this appeal, when the question of grant of bail was under consideration, wherein he has stated that the matter is settled and, therefore, this court may take a lenient view in the matter, in case it is found that the appellants have really committed an offence.

12. As against this, Shri. Daund, learned APP, supported the impugned judgment of conviction and sentence. He also pointed out from the evidence that the factum of demand of amount and a wrist watch by the accused persons, has been established, as the evidence in that regard, though of interested witnesses, is consistent and inspiring confidence, though there are some contradictions and inconsistencies in their evidence. He submitted with emphasis that, when there was no plausible reason, as natural as it could be, for Shantabai to commit suicide with her daughter by jumping into the well, the prosecution case about harassment and the ill-treatment, to which she was subjected, itself was sufficient to conclude that she was driven to commit suicide on account of harassment and ill-treatment to her by appellants - accused persons for non-fulfillment of their demand for money and a wrist watch, and if that is considered, then the conviction recorded and sentence imposed by the trial court is justified and, therefore, there is no reason to interfere with the impugned judgment.

As regards alternate submission of learned counsel for the appellants, learned APP submitted that having regard to the gravity of the offence, when a married woman, with her minor daughter, has committed suicide by jumping into the well, sentence awarded by the trial court is appropriate and, as such, no further lenient view in the matter of sentence is called for.

February 28, 2006.

13. The prosecution has come out with a case that the victim Shantabai was subjected to ill-treatment and cruelty by appellants-accused for the reason that, she did not fulfil their demand of amount of Rs.2,000/- and/or of a wrist watch. It is further claim of the prosecution that, because of ill-treatment, Shantabai committed suicide and because of ill-treatment to her by accused persons, they abetted her to commit suicide. In this context, it is also the claim of the prosecution that, as the suicidal death of Shantabai was within seven years from the date of her marriage with Respondent No.1, having regard to the presumption laid down under Section 113-A of Indian Evidence Act, the court has to presume, having regard to other circumstances of the case, that such suicide had been abetted by husband of deceased, or any such relative of her husband. In order to understand what has been envisaged under Section 113(A) of the Indian Evidence Act, it would be appropriate to reproduce the Section. Section 113(A) reads;

"113-A. Presumption as to abetment of suicide by a married woman.- When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband".

A bare perusal of section 113-A shows that, for drawing presumption, prosecution has to prove or comply with following conditions:-

(i) The woman, married and related to husband and his relatives, committed suicide.

(ii) Her suicidal death was within seven years from the date of her marriage.

(iii) The accused persons have subjected her to cruelty of such a nature as is contemplated in explanation to Section 498-A IPC.

14. The trial court has, on appreciation of evidence, come to the conclusions that all these conditions have been satisfied and, therefore, held that the accused persons have abetted and provoked the victim Shantabai to commit suicide. As stated in earlier part of the judgment, the trial court, on the basis of the fact that the dead body of the victim was found in the well, which fact was not disputed by the accused persons, inferred that, Shantabai must have committed suicide by jumping into the well. Further, when the fact of ill-treatment and cruelty by accused persons to the victim was found established on the basis of evidence on record, the trial court came to the conclusion that the accused persons must have abetted or provoked the victim to commit suicide. In addition to that, the trial court found that the death of Shantabai was within seven years from the date of her marriage. This was on the footing that, it was not disputed that the victim Shantabai died within seven years of her marriage with Respondent No.1.

15. Since the learned counsel for the appellants has categorically disputed this finding of fact recorded by the trial court, and has urged that on the basis of evidence on record, it is not established by the prosecution that the victim died within seven years of her marriage with Respondent No.1 and that she was subjected to cruelty and ill-treatment and that she died suicidal death, it has now become imperative for this appeal court to reassess the evidence independently to verify the correctness of the finding recorded by the trial court.

16. As regards suicidal death of Shantabai, all that is relied upon by the prosecution is the fact that her dead body was found in the well on 16-04-1990. As pointed out in earlier part of the judgment, there is absolutely no evidence much less circumstantial evidence, to show that Shantabai died suicidal death, by jumping into the well. Much has been made by the prosecution that the accused persons have admitted that Shantabai died suicidal death. This was on the footing that the accused persons have not denied the fact that her dead body was found in the well. It is one of the conditions, and that has also been observed by the trial court in its judgment, that the accused have not come out with a defence that Shantabai died accidental death. Therefore, in these circumstances, when there is no legal evidence, it was by way of inference that the trial court has come to the conclusion that Shantabai died suicidal death.

In this context, reliance has been placed by Ms. Pratibha Patil, learned Counsel for the appellants, on the decision of the Apex Court in 2004 AIR SCW 2388, Sakatar Singh Vs. State of Haryana. In the reported case, accused persons were tried and convicted for offence under Section 498-A IPC, on the allegation that the victim, a married woman, was subjected to cruelty on account of non-fulfillment of unlawful demand of dowry and that she committed suicide with her two children. Concurrent finding of conviction and sentence was the subject-matter of challenge before the Apex Court. The Apex Court, in spite of concurrent finding of conviction and sentence, reassessed the evidence and found that, the evidence of the mother and brother of the deceased was not sufficient to prove the allegations of neglect and demand of dowry. It was found that, there was material contradiction in respect of timing of demand. Therefore, the Apex Court found that the conviction of the accused was by drawing inferences on the basis of unproved facts and placing reliance upon statements of witnesses, whose evidence has not stood test of cross-examination.

In the reported case, the Apex Court observed that, in law, the prosecution has to prove the fact that the victim was subjected to cruelty or harassment and such cruelty should be one, which comes within explanation to Section 498-A, IPC which defines cruelty.

17. This court in the matter of State of Mah. Vs. Tukaram N. Mane, reported in [2004(2) B.Cr.C. 743 : 2004 ALL MR (Cri) 1220], (decided by me), while dealing with the issue of raising presumption under Section 113-A of Indian Evidence Act, observed thus:

"For raising presumption of abetment to commit suicide, it is imperative to establish that the married woman is subjected to ill-treatment or cruelty. The presumption would be drawn only when the suicide is committed within the period of 7 years of marriage; 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 ill-treatment is proved and established beyond doubt, on the evidence on record, no presumption could be drawn. In the case before hand, therefore, when prosecution has utterly failed to establish on evidence that deceased Chitrabai was subjected to cruelty, by no stretch of imagination a presumption could be drawn that respondents caused abetment to her to commit suicide".

18. In a case reported in 2003 ALL MR (Cri) 1530, Prabhakar Pandurang Ingole Vs. State of Maharashtra, this court has observed as follows:-

"Mere vague allegations of harassment by themselves would not amount to abetment of the offence of commission of suicide. Something more is required under Section 107 of I.P.C. The harassment should be of a nature which amounts to instigation to any person to commit suicide or a conspiracy accompanied by an act or illegal ommission which leads to the commission of suicide or intentional aiding by act or illegal omission to commission of suicide".

19. We may refer to the decision of the Apex Court in the case of Chanchal Kumari Vs. Union Territory, Chandigarh, AIR 1986 SC 752. The matter was relating to offence under Section 306, IPC. On the question of abetment to commit suicide, the Apex Court observed that, there was no dependable evidence in regard to actual abetment by the accused for the deceased to commit suicide.

In the reported case, the trial court found that the accused did not give any information to the police or anybody nor did he speak regarding the manner in which the victim died. The Apex court found that it was not a circumstance, which necessarily led to infer even that the accused persons have abetted the victim to commit suicide. Therefore, what has been laid down by this court, as well as the Apex Court, is that, there must be legal evidence to establish that the victim was subjected to cruelty and that she died suicidal death, as she was subjected to ill-treatment and cruelty.

In this context, it is also very material to note that absence of any explanation by accused persons, when they were examined under Section 313 of Cr.P.C. 1973, by itself will not be sufficient to infer that the accused persons have not denied that the victim died suicidal death.

20. Coming to the case at hands, there is absolutely no evidence of either nature to show that the victim died suicidal death. It would be fallacious to say that the dead body of the victim Shantabai was found in the well and because she was subjected to ill-treatment, she committed suicide by jumping into the well. In this case, as I have stated earlier, the accused persons have not admitted that Shantabai died suicidal death by jumping into the well. Therefore, for the sake of discussion, even if it is accepted that the victim was subjected to ill-treatment as alleged by the prosecution, yet no inference could be drawn that the victim died suicidal death. The possibility of victim having died accidental death, in such circumstances, cannot be ruled out. The observations of the trial court that the victim was subjected to ill-treatment, because of non-fulfillment of demand of accused for Rs.2,000 and/or a wrist watch and, therefore, she might have committed suicide; the victim, a married woman, having a minor daughter, had no reason to put her life to an end and therefore accused must have abetted her to commit suicide, cannot be accepted. Once it is found that the prosecution has failed to establish that the victim died suicidal death, no presumption could be drawn as envisaged under Section 113-A of the Indian Evidence Act.

21. In my considered view, there is another hurdle in drawing presumption under Section 113-A of the Evidence Act and it is the failure on the part of the prosecution to prove that the victim died within seven years from the date of her marriage with Respondent No.1. It is an admitted position that, the victim died on 16-04-1990. It is no doubt true that as per medical evidence, she died of drowning in the well. In this matter, it was witness Narayan, who lodged complaint (Exh.42) on 17-04-1990. In the said complaint, he has stated that his daughter Shantabai was married about 5-6 years before, to Respondent No.1. The factum of marriage is not denied by the accused persons. It is needless to say that the statement of the complainant in the complaint, that his daughter Shantabai married about 5-6 years before, is as vague as it could be.

At this juncture, it is to be stated that no positive evidence has been brought on record as to the exact year in which deceased Shantabai married to accused no.1. The vagueness in the complaint lodged by witness Narayan is further aggravated, having regard to his deposition before the court.

It is revealed from the record that evidence of Narayan was recorded on 13-07-1995. In his deposition, rather in very second statement, he deposes that Shantabai was married to accused No.1 5-6 years back. Disparity in his statement, one in the complaint and other in the deposition, is too glaring and it gets aggravated when both the statements are vague and there is no other evidence brought on record by the prosecution, giving exact date of the marriage. However, the trial court has, on the footing that the factum of marriage has not been denied by the accused persons, concluded that the victim died suicidal death within seven years of her marriage with accused No.1. As pointed out in earlier part of the judgment, even as regards this fact as to when did the victim marry, there ought to have been legal evidence and, therefore, it cannot be said, much less held; on the basis of statements made on approximation as to the year of marriage, that the victim died within seven years of her marriage. If that is so, then that is one of the reasons for the court not to draw presumption under Section 113-A of the Evidence Act.

22. Before we consider the evidence on the allegations of ill-treatment and harassment, it would be appropriate to make a mention of the fact that the trial court has acquitted the appellants of the offence under Section 304-B, which relates to dowry death and this finding of acquittal, in my opinion, has its own bearing on the finding of the trial court that the victim was subjected to cruelty by the accused persons because of non-fulfillment of demand. It is needless to say that the trial court found the accused persons guilty for offence under Section 498-A IPC, placing reliance on the evidence of witnesses Narayan, Mohan and Ganesh. Trial Court found that in the facts and circumstances of the case, evidence of these witnesses, although related, was reliable and natural also. The trial court also found that witnesses Narayan and Ganesh had an occasion to know from Shantabai, much prior to her death, about the harassment and ill-treatment meted out to her. This was on the occasions, when she visited her parental house and made disclosure about the same.

In addition to above, what has been claimed by witnesses Narayan and Ganesh is that, few days before the date of incident, when witness Ganesh had gone to Dongaon, victim Shantabai, accompanied by her parents-in-law, so also her husband-accused No.1, to get blessings of Godess, met him and disclosed him that there was ill-treatment and cruelty to her by the accused persons on account of not bringing amount of Rs.2,000/- and a wrist watch, as demanded by the accused persons. The witness Narayan in his evidence, has also stated that, when once daughter Shantabai disclosed to him that there was ill-treatment to her, he had been to house of accused persons and requested them not to ill-treat her, response from accused persons was otherwise, in the sense, they threatened him. It is, therefore, necessary to dissect evidence of this witness, and having regard to the manner in which Mohan has given his evidence, and almost having tried to play a game of hide and seek, his evidence needs to be discussed first.

March 1, 2006.

23. Witness Mohan (PW-2), as stated by him, is residing opposite to the house of accused persons. He is cousin brother of Shantabai. In these circumstances, his evidence is material, in the sense, he could know and witness also the alleged ill-treatment meted out to Shantabai. From what he has stated before the court in his first examination, one certainly gets an impression that he was well aware about the things right from inception of marriage of Shantabai with accused No.1. Therefore, he stated that about six months after the marriage, the accused persons started harassing Shantabai and they were asking her to bring amount of Rs.2,000/- as dowry and a wrist watch and on that count, they were ill-treating her. But, later on, when he disowned his statement that the accused persons beat Shantabai in his presence, learned prosecutor before the trial court sought permission to declare him hostile and though he was subjected to cross-examination by learned prosecutor, nothing has been brought on record to impeach his credibility and to show that he has deliberately suppressed the truth. At the same time, this witness has an audacity to say that the accused persons were beating Shantabai, as she did not bring money.

24. When Mohan (PW-2) was subjected to cross-examination by learned Counsel for the defence, he stated that once he saw accused persons beating Shantabai. He also stated that he heard the accused persons making demand to Shantabai to bring amount of Rs.2,000/- and a wrist watch. When further probe was made in the cross-examination, this witness candidly stated that he did not disclose these facts to the police, when his statement was recorded by police. He candidly admitted that he did not disclose before the police that he saw Shantabai being beaten by accused persons. Again, he stated that, the accused persons made demand of amount of Rs.2,000/- from Shantabai twice within a period of six months after her marriage. He also claimed that he had told this fact to witness Narayan.

In his further cross-examination, witnesses Mohan has clarified that the amount of Rs.2,000/-, for which demand was made by the accused persons, was the amount, which comprised of the amount of dowry that was settled at the time of marriage. He claimed that, he was present at the time when it was decided that the said amount and a wrist watch were to be given at the time of marriage, as dowry. However, in the next breath, he denied to have stated so before the police, when his statement was recorded.

25. As stated earlier, apart from inherent infirmities and inconsistencies in his deposition, evidence of PW-2 Mohan is to be tested in the background of evidence of PW-1 Narayan and PW-3 Ganesh.

In the first place, Narayan and Ganesh have not deposed that witness Mohan disclosed to them, at any time prior to the date of incident, that in his presence accused made demand of amount and a wrist watch from Shantabai and on that count, they assaulted Shantabai. If we consider evidence of witness Narayan, he has stated in clear words as follows:-

"In the marriage of Shantabai no dowry was settled. Dowry was not given to the accused in her marriage. There was no quarrel between us in the marriage on the point of dowry."

Having regard to the aforesaid evidence of Narayan, it is crystal clear that what has been stated by PW-2 Mohan about demand of the amount and a wrist watch, and particularly the amount as part of dowry, was totally false. Mohan has exaggerated the things, only with a view to make it appear that he is a witness of truth. As could be seen from his cross-examination by the defence, his credibility has been totally impeached.

That apart, he had an opportunity to disclose all these things to the police, when police recorded his statement. However, the witness has audacity even to state before the court that he had not disclosed these things to the police, when his statement was recorded by police. But, at the same time, the witness has also an audacity to maintain in his evidence before the court, to have heard the accused persons demanding the amount and a wrist watch, and causing ill-treatment and cruelty to Shantabai on account of non-fulfillment of the demand.

In substance, evidence of witness Mohan has to be discarded, being not reliable. As stated in earlier part of the judgment, the manner in which witness Mohan has given his evidence, has its own bearing on the testimonies and claims of witnesses Narayan and his son Ganesh.

26. It has come in the evidence of Narayan, as well as Ganesh, that few days prior to the incident, when Ganesh had been to village Dongaon for seeking blessings of Goddess, his sister Shantabai, accompanied by accused persons, met him and that time, as the witness claimed, Shantabai disclosed him about persistent demand by accused persons of amount of Rs.2,000/- and a wrist watch and consequential harassment to her on account of non-fulfillment of their demand. In addition to this, both these witnesses have, no doubt, stated in their evidence that Shantabai was subjected to ill-treatment by accused persons six months after marriage, meaning thereby that for the initial period of six months, she was treated well.

The witness Narayan has also stated that whenever Shantabai used to visit her parental house on the eve of festivals and even otherwise, she used to complain of ill-treatment to her by accused persons and again for the same reason of non-fulfillment of the demand. It has also come in the evidence of witness Narayan that after hearing the complaint of Shantabai, once, he had been to her matrimonial home and there he questioned accused persons about harassment caused to Shantabai, but accused persons, in stead of listening to him or expressing repentance over what they are alleged to have done, threatened him of dire consequences.

Evidence of witness Ganesh is more or less on the same lines as that of Narayan and, therefore, is in consistency with the evidence of Narayan. But that itself is not sufficient, in my opinion, to accept their evidence as trustworthy, having regard to the attending circumstances and false claim made by Mohan (PW-3) as regards unlawful demand of dowry i.e. partly amount of Rs.2,000/- and a wrist watch. This is because, witness Narayan has stated in clear words that at the time of marriage, no dowry was settled and consequently, there was no question of demanding any amount towards dowry.

27. It is in this context, the claim of witnesses Narayan and Ganesh on the point of ill-treatment on account of non-fulfillment of demand does not stand to reason. The alleged incident of unnatural death of Shantabai and her daughter has occurred, as given by the witness Narayan in his evidence, 5-6 years after her marriage. It is the claim of this witness that during this period, there was persistent demand and consequential harassment to Shantabai on that count. It is the evidence of this witness that, Shantabai, whenever used to visit her parental house, she disclosed to her parents that type of harassment to her, which continued for about 5-6 years till the date she died. So, in the nature of things, when once, witness Narayan had tried to see the accused persons to tell them about the harassment and ill-treatment meted out to Shantabai and when his efforts proved futile, because of the conduct of the accused persons and stand taken by them, it does not appeal to reasons why no step was taken, either by Shantabai or her father Narayan to ventilate their grievance regarding ill-treatment meted out to her, by reporting the matter to the police, or to the persons, who were present at the time when her marriage was settled with accused No.1.

That apart, though witness Ganesh claimed that few days prior to the incident in question, Shantabai met him at village Dongaon and disclosed about ill-treatment meted out to her, fact remains that at that time she was accompanied by her husband and in-laws. In the first place, in my opinion, this does not appear to be probable, when accused persons had accompanied her. As a matter of fact, if the situation is understood in correct perspective, the fact that accused persons, more particularly accused Nos.2 and 3, had accompanied Shantabai, when she had gone to village Dongaon, to seek blessings of Goddess, in normal circumstance, is an indication of harmonious relations between them. In this background, the claim that Shantabai disclosed about ill-treatment, to her brother Ganesh at Dongaon, does not appear to be true. Apart therefrom, if it is assumed that she had so disclosed, in the background of the fact that even earlier, according to witnesses, on several occasions, Shantabai was subjected to cruelty and ill-treatment and the witness Narayan, when met the accused persons to putforth his grievance about ill-treatment meted out to Shantabai, was required to come back receiving threats from the accused persons, at least some steps could have been taken by the witnesses against the accused persons. But what we find is that all allegations about ill-treatment and harassment to Shantabai have come to light only after her death. This is in the sense, at no point of time in the past prior to the incident, neither Shantabai nor her father and brother made disclosure about ill-treatment allegedly meted out to her.

Therefore, apart from inconsistencies, the claim of these two witnesses (Narayan and Ganesh) regarding unlawful demand and ill-treatment to Shantabai by accused persons, on account of non-fulfillment of their demand, to the extent of causing physical cruelty, is not at all believable.

28. Therefore, on the basis of assessment of evidence on record independently by me, I have come to the conclusion that the prosecution has utterly failed to prove even the factum of unlawful demand and consequential harassment and ill-treatment to deceased Shantabai for non-fulfillment of such demand. Consequently, the finding recorded by the trial court holding the appellants guilty for offence under Section 498-A IPC, for causing ill-treatment and harassment to Shantabai, cannot sustain.

At the same time, failure of the prosecution to prove that, Shantabai was subjected to ill-treatment and cruelty, itself brings out the infirmities in drawing presumption under Section 113-A of the Evidence Act, as, one of the conditions for raising such presumption is that the factum of ill-treatment or cruelty is to be proved beyond reasonable doubts, by the prosecution.

29. In the circumstances as aforesaid, I am of the opinion that the prosecution has failed to prove the offence under Section 306 IPC is made out against appellants-accused. The trial court has erred in holding appellants-accused persons guilty of the offence under Section 306 IPC. Hence, the order.

30. The appeal is allowed. The judgment and order dated 21-07-1995 delivered by Additional Sessions Judge, Jalna, in Sessions Case No.28 of 1991, of conviction and sentence passed against present appellants, is quashed and set aside.

The appellants are acquitted of the offences with which they were tried. Their bail bonds stand cancelled.

Fine amount, if any, paid, shall be refunded to the appellants.

Appeal allowed.