Neelkanth S/O Revanappa Bhore And Anr vs The State Through Police on 22 October, 2020

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Karnataka High Court

Neelkanth S/O Revanappa Bhore And Anr vs The State Through Police on 22 October, 2020

Bench: Hanchate Sanjeevkumar

           IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

    DATED THIS THE 22ND DAY OF OCTOBER, 2020

                           BEFORE

 THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR

             CRIMINAL APPEAL NO.3636/2012
Between:

1. Neelkanth S/o Revanappa Bhore,
   Age 25 years, Occ. Business,
   R/o Anandwadi, Tq. Bhalki,
   Dist.Bidar.

2. Putlamma W/o Revanappa,
   Age major, Occ. Household
   R/o Anandwadi, Tq. Bhalki,
   Dist.Bidar.
                                                  ... Appellant

(By Sri Baburao Mangane, Advocate)

And:

The State Through Police,
Bhalki Rural Police Station,
Dist. Bidar.
                                               ... Respondent

(By Sri Gururaj Hasilkar, HCGP)

      This Criminal Appeal is filed under 374(2) of Code of
Criminal Procedure praying to allow the appeal and set aside
the impugned judgment and order passed in S.C.No.51/2009
dated 16.06.2012 by the Presiding Officer, Fast Track Court-II
                               2


at Bidar (sitting at Bhalki) and the appellants be acquitted of
the above offences in the interest of justice.

      This appeal having been heard and reserved for
judgment, coming on for "Pronouncement of judgment" this
day, the Court delivered the following;

                        JUDGMENT

The present appeal is by the appellants/accused praying to set aside the judgment of conviction dated 16.06.2012 and order of sentence dated 21.06.2012 passed by the learned Presiding Officer, FTC-II, Bidar (sitting at Bhalki) (hereinafter referred to as the 'Sessions Court') and acquit them of all the charges levelled against them.

2. The Sessions Court has convicted the appellants for the offence punishable under Section 498-A of Indian Penal Code (IPC) and sentenced to undergo simple imprisonment for a period of two years with fine of Rs.2,000/- each with default clause in case failure of payment of fine amount shall further undergo simple imprisonment for a period of for four months. 3

3. Further the appellants are sentenced to undergo simple imprisonment for a period of five years for the offence punishable under Section 306 of IPC with fine of Rs.3,000/- each with default clause if failure to pay fine amount further shall undergo simple imprisonment for a period of six months.

4. Further the appellants are sentenced to undergo simple imprisonment for seven years for the offence punishable under Section 304-B of IPC.

5. Further sentenced to undergo simple imprisonment for a period of five years each with fine of Rs.15,000/- each for the offence punishable under Section 3 of Dowry Prohibition Act (D.P.Act) with default clause if failure to pay fine amount further shall undergo simple imprisonment for a period of six months.

6. Further sentenced to undergo simple imprisonment for a period of six months each with fine of Rs.2,000/- each for the offence punishable under 4 Section 4 of D.P.Act with default clause if failure to pay fine amount further shall undergo simple imprisonment for a period of two months each.

7. Further sentenced to undergo simple imprisonment for a period of six months with fine of Rs.5,000/- each for the offence punishable under Section 6 of the D.P.Act with default clause if failure to pay fine amount further shall undergo simple imprisonment for a period of two months.

8. It is further ordered all the sentences shall run concurrently.

9. Brief facts of the prosecution case are as follows :

The appellant No.1 is the husband of the deceased-

Anita and appellant No.2 is the mother of the appellant No.1 and mother-in-law of deceased-Anita. It is stated that after the marriage when the deceased went to the house of appellants for leading matrimonial life but these 5 appellants have subjected the deceased into cruelty and were demanding to bring more dowry in the form of cash and gold. Therefore, when this being the ill-treatment and cruelty meted out to the deceased and harassing for bringing more dowry amount driven the deceased to commit suicide and thus in this regard the first information statement was lodged before the concerned police and on the basis of complaint, the respondent-

Police have registered the case in Crime No.120/2008 for the offences punishable under Sections 498-A and 304-B, R/w Section 34 of IPC.

10. After thorough investigation, charge-sheet against the appellants came to be filed for the offences punishable under Sections 498-A, 306, 304-B read with Section 34 of IPC and Sections 3, 4 and 6 of D.P.Act. On receipt of charge sheet, learned jurisdictional Magistrate took cognizance of offences under Section 190 of Cr.P.C., supplied the copies of charge sheet and its enclosures to the appellants/accused as required under Section 207 of 6 Cr.P.C., since the offences alleged are exclusively triable by the Sessions Court, committed the case to the Sessions Court as per Section 209 of Cr.P.C., which court after receipt of the same, registered the case as Sessions Case in S.C.No.51/2009. Therefore, charges against the appellants for the offences punishable under Sections 498-A, 306 & 304-B R/w Section 34 of IPC and Sections 3 and 6 of D.P.Act came to be framed, but appellants/accused pleaded not guilty and claims to be tried, by recording their pleas, learned Sessions Judge has proceeded with the trial.

11. To prove its case, prosecution got examined as many as 41 witnesses as P.Ws.1 to 41 and got marked as many as 31 documents at Exs.P.1 to 31 and got marked 55 material objects as M.Os.1 to 55. After closure of prosecution evidence, statement of appellants/accused as required under Section 313 of Cr.P.C. recorded, but the appellants have denied all the incriminating circumstances appearing in their evidence and they have 7 totally denied the prosecution case. Further, the appellants have not submitted any documents before the Sessions Court during the course of 313 Statement and also did not choose to lead defence evidence.

12. The learned Sessions Judge after appreciating the evidences on record, had come to conclusion that the appellants are found guilty of the offences alleged for the offences under Sections 498-A, 306 & 304-B read with Section 34 of IPC and Sections 3, 4 and 6 of the D.P.Act. Accordingly convicted the appellants for the charges levelled against them. Being aggrieved by the judgment of conviction and order on sentence the appellants have preferred the present appeal urging various grounds in the appeal memorandum.

Submission of counsel for appellants :-

13. Learned counsel for appellants in support of the grounds urged also canvassed the arguments on various grounds and it is submitted that how the deceased 8 fell down into the well was not seen by anybody else. Therefore, still the prosecution has doubt in the case whether the death of the deceased is homicidal death or suicidal death or accidental death due to falling in the well accidentally by slipping into the well. Therefore, submitted there are no eyewitnesses to the incident.

14. Further submitted that as per the post mortem report it is found that there are semi digested food was present, which means the deceased had taken food before the death occurred and submitted if at all the deceased wanted to commit suicide then she could not have taken the food and committed suicide. Therefore, submitted this factum of presence of semi digested food in the intestine of the deceased as revealed in the post mortem report, it means after taking food the deceased went to the well for fetching the water and accidentally slipped into the well and drowned into the well. Therefore submitted this circumstance goes to the core of the prosecution that the deceased fell into the well 9 accidentally slipped into the well. Therefore, the death of the deceased is not suicidal death.

15. Further submitted that the Sessions Court has not framed charge under Section 4 of the Dowry Prohibition Act but convicted the appellants for the said section. Therefore said conviction is not correct. Further submitted that there are no ingredients to prove as per Section 107 of IPC that these appellants have instigated/abetted the deceased to commit suicide.

16. Further submitted that there is no element on behalf of prosecution to prove that soon before the death of deceased the appellants have abetted/instigated the deceased to commit suicide. Just because there is some quarrel in the family between the husband and wife or between in-laws that cannot always be presumed as cruelty and ill-treatment to the daughter-in-law in the house, but in the present case the normal quarrel which has been taken place, in every matrimonial home the 10 same is projected in a big way that the appellants were giving ill-treatment and cruelty to the deceased. Therefore, in this regard the Sessions Court has not appreciated the evidences on record correctly.

17. Further submitted that the prosecution has depicted the story that the appellants have demanded gold and accordingly have received half tola of gold from the parents of the deceased, this is not amounting to cruelty in respect of dowry amount and thus projected that this receipt of half tola gold has falsely made as demand of dowry amount and this conviction is wrong. Hence, submitted that this half tola of gold is not dowry amount but it is a marriage presentation as every parent of the bride would give such small quantity of gold in marriage as a presentation to the bridegroom. But the prosecution has modified this issue as dowry harassment case and for dowry such cruelty and ill-treatment was given to the deceased.

18. Further submitted that there are no ingredients to attract the offences under Sections 498-A, 306 and 304-B of IPC coupled with the lack of ingredients as per Section 107 of IPC. Therefore, submitted that soon before the death of the deceased there is no cruelty and ill-treatment by the appellants and for proving this element the prosecution has not placed any believable evidences that soon before the death of the deceased these appellants have subjected the deceased into cruelty, thus, it instigates the deceased to commit suicide. Therefore, submitted the Sessions Court has not appreciated the evidences on record.

19. Further submitted that ingredient of demand of dowry is also not made out and proved by the prosecution by placing cogent evidences. Therefore, the prosecution has utterly failed to prove the ingredients to attract the offences as alleged. Further submitted that even though for attracting the presumption accrued in favour of prosecution as per Section 113A and 113B of the 12 Indian Evidence Act, the prosecution has not proved the necessary ingredients so as to draw the presumption. Therefore, submitted the presumption cannot be drawn automatically but for drawing such presumption the prosecution has to establish the guilt of the appellants by placing cogent evidences that soon before the death of the deceased there is abetment or instigation and subjected to deceased into cruelty, but, the evidences on record do not prove this thing. Therefore, submitted the prosecution has miserably failed to prove the guilt against the appellants..

20. Further submitted that there is no proper examination under Section 313 of Cr.P.C. Therefore, submitted the prosecution is not able to prove the guilt of the appellants beyond reasonable doubt and the Sessions Court has only based on presumption and assumption and by developing surmises and conjunctures in his mind had convicted the appellants. Hence, requests for interference of this court in the judgment of conviction 13 and order on sentence and prays to acquit the appellants from the charges levelled against them.

21. The learned counsel for the appellants places reliance on various judgments of Hon'ble Apex Court which would discuss in later paragraphs.

Submission of learned High Court Government Pleader :-

22. Per contra, the learned High Court Government Pleader vehemently submitted that the prosecution has placed all the evidences before the Sessions Court to prove the guilt against the appellants for the charges levelled against them.

23. Further submitted that in the present case the prosecution has produced evidences that the deceased committed suicidal death in relation to dowry harassment and has produced evidences that soon before her death the appellants have subjected the deceased into cruelty and ill-treatment of brining dowry amount and due to this cruelty and harassment which ultimately abets the 14 deceased to commit suicide. Therefore submitted there is a continuous ill-treatment and cruelty to the deceased by the appellants which has been having continuing effect and ultimately the deceased has taken extreme step of ending her life by committing suicide and also before committing suicide there is a proximity of time that the appellants have subjected the deceased into cruelty and ill-treatment and harassed for bringing dowry amount and therefore this abetting the deceased to commit suicide and in this regard the prosecution has placed evidences before the Sessions Court and which are rightly appreciated by the Sessions Court and convicted the appellants and accordingly sentences are awarded which needs no interference. Therefore, prays to dismiss the appeal. Evidences and discussion :

24. Before appreciating the evidences on record and also the legal provisions are to be discussed, it is 15 worthwhile to have cursory look on the role of each witnesses are :-

PW.1 is the complainant and brother of the deceased who has lodged complaint Ex.P.1; PW.2 is the wife of PW.1; PW.3 is the sister of deceased and PW.1; PW.4 is the mediator for the marriage and relative of PW.1; PWs.5 to 8 are the witnesses who have present during marriage talks and among them PW.7 had lent a sum of Rs.80,000/- to meet-out marriage expenses; PW.9 is the mediator for the marriage; PWs.10 to 20 are the villagers of the appellants/accused and some of them are seizure panchas, PW.21 is the spot pancha, PW.22 is the seizure of photos of dead body of the deceased and marriage of the deceased and relatives of the deceased; PW.23 is the relative of PW.1; PW.24 is the mother of PW.1 and the deceased; PW.25 is the brother of PW.24 i.e., maternal uncle of the deceased and inquest pancha; PW.26 is the Village Accountant who has given RTC extract of the well, PW.27 is the computer operator who has given record of 16 rights; PW.28 is the photographer; PW.29 is the inquest pancha, PW.30 is the Engineer who has prepared spot sketch; PW.31 is the goldsmith; PW.32 is the Woman Constable; PW.33 is the Tahasildar, PW.34 is the Doctor who had conducted post mortem examination, PWs.35 to PW.38 are the Police Constables; PW.39 is the Superintendent of Police who had conducted first part of investigation; PW.40 is the PSI who has registered crime;

PW.41 is the Dy.S.P who had conducted later part of investigation and filed charge sheet.

25. In the present case, it is undisputed fact that the appellant No.1/accused No.1 is husband of deceased and appellant No.2 is mother of appellant No.1 and mother-in-law of deceased. It is undisputed fact that the marriage of deceased with appellant No.1 was solemnized on 26.04.2007 at Dagadi Village, Bhalki Taluk, Bidar District, the death of the deceased was occurred on 18.10.2008. It is the case of prosecution that during the life time of the deceased when she was leading marital life 17 in the house of the appellants, the appellants have subjected the deceased to continuous ill-treatment and were giving harassment to bring more dowry amount and which is continuously done to the deceased resultantly the deceased without tolerating the torture committed suicide on 18.10.2008 by jumping into the well and thus committed suicide and therefore the appellants have facing charges of subjecting the deceased into cruelty and abetting the deceased to commit suicide and the death of the deceased is in relation to the demand of dowry and therefore the appellants are facing charges as levelled against them as prescribed above.

26. To constitute the offence under Section 498-A of IPC, the prosecution has to prove the following ingredients ;-

"Ingredients of offence.- The essential ingredients of the offence sunder sec. 498A are as follows:

(1) A woman was married;

(2) She was subjected to cruelty;

           (3)     Such cruelty consisted in -

           (i)     any lawful conduct as was likely to drive
                   such woman to commit suicide or to cause

grave injury or danger to her life, limb or health whether mental or physical;

(ii) harm to such woman with a view to coercing her to meet unlawful demand for property or valuable security or on account of failure of such woman or any of her relations to meet the lawful demand;

(iii) the woman was subjected to such cruelty by her husband or any relation of her husband"

27. For constituting the offence under Section 306 of IPC, the prosecution has to prove the following ingredients:-

"Ingredients of offence- The essential ingredients of the offence under sec. 306 are as follows:

           (1)    There was suicide of a person;
           (2)    It    was    committed       in       consequence    of
     abetment by the accused."


     28.   For         constituting      the        offence       under

Section 304B of IPC, the prosecution has to prove the following ingredients:-

"Ingredients of offence. - The essential ingredients of the offence under sec. 304B are as follows :-

(1) Death should be caused by burns or bodily injury or otherwise than under normal circumstances;

(2) Such death should have occurred otherwise than under normal circumstances within seven years of her marriage;

(3) She must have been subjected to cruelty or harassment by her husband or any relative of her husband;

(4) Such cruelty or harassment should be for or in connection with demand for dowry;

(5) The deceased death was subjected to cruelty or harassment for dowry soon before her death;

(6) Soon before her death the woman was subjected to cruelty or harassment by her husband or any other relative of her husband in connection with any demand for dowry."

29. For proving the offence under Section 3 of the Dowry Prohibition Act, which reads as follows :-

Penalty for giving or taking dowry.-

[(1)] If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable [with imprisonment for a term which shall not be less than [five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more]:

Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than [five years].] [(2) Nothing in sub-section (1) shall apply to, or in relation to,-

(a) presents which are given at the time of a marriage to the bride (without any demand having been made in that behalf):

Provided that such presents are entered in a list maintained in accordance with the rules made under this Act;

(b) presents which are given at the time of a marriage to the bridegroom (without any demand having been made in that behalf):

Provided that such presents are entered in a list maintained in accordance with the rules made under this Act:

Provided further that where such presents are made by or on behalf of the bride or any person related to the bride, such presents are of a customary nature and the value thereof is not excessive having regard to the financial status of the person by whom, or on whose behalf, such presents are give.]

30. For proving the offence under Section 4 of the Dowry Prohibition Act, which reads as follows :-

[Penalty for demanding dowry.- If any person demands, directly or indirectly, from the parents or 22 other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine which may extend to ten thousand rupees:

Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a terms of les than six months.]

31. For proving the offence under Section 6 of the Dowry Prohibition Act, which reads as follows :-

Dowry to be for the benefit of the wife or her heirs.-

(1) Where any dowry is received by any person other than the woman in connection with whose marriage it is given, that person shall transfer it to the woman-

(a) if the dowry was received before marriage, within [three months] after the date of marriage; or 23

(b) if the dowry was received at the time of or after the marriage, within [three months] after the date of its receipt; or

(c) If the dowry was received when the woman was a minor, within [three months] after she has attained the age of eighteen years, and pending such transfer, shall hold it in trust for the benefit of the woman.

[(2) If any person fails to transfer any property as required by sub-section (1) within the time limit specified therefore, [or as required by sub-section (3),] he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years or with fine [which shall not be less than five thousand rupees, but which may extend to ten thousand rupees] or with both.] (3) Where the woman entitled to any property under sub-section (1) dies before receiving it, the heirs of the woman shall be entitled to claim it from the person holding it for the time being:

[Provided that where such woman dies within seven years of her marriage, otherwise than due to natural causes, such property shall, -

(a) if she has no children, be transferred to her parents; or

(b) if she has children, be transferred to such children and pending such transfer, be held in trust for such children.] [(3A) Where a person convicted under sub-

section (2) for failure to transfer any property as required by sub-section (1) [or sub-section (3)] has not, before his conviction under that sub-section, transferred such property to the woman entitled thereto or, as the case may be, [her heirs, parents or children] the Court shall, in addition to awarding punishment under that sub-section, direct, by order in writing, that such person shall transfer the property to such woman or, as the case may be, [her heirs, parents or children] within such period as may be specified in the order, and if such person fails to comply with the direction within the period so specified, an amount equal to the value of the property may be recovered from him as if it were a fine imposed by such Court and paid to such woman or, as the case may be, [her heirs, parents or children].

(4) Nothing contained in this section shall affect the provisions of section 3 or section 4.

32. Regarding the legal provisions of the offences prescribed under Sections 498-A, 306 and 304-B of IPC, it is worthwhile to discuss the dictum of the Hon'ble Apex Court in catena of decisions for interpreting the above said offences. The Hon'ble Apex Court in the case of Pinakin Mahipatray Rawal v. State of Gujarat in Criminal Appeal No.811 of 2004 dated 09.09.2013, while discussing the previous judgments on this point, their Lordships were pleased to observe at paragraphs 20 and 21, which are reproduced as under:-

"20. This Court in Girdhar Shankar Tawade Vs. State of Maharashtra, (2002) 5 SCC 177, examined the scope of the explanation and held as follows :-

3. The basic purport of the statutory provision is to avoid cruelty which stands defined by attributing a specific statutory meaning attached thereto as noticed hereinbefore. Two specific instances have been taken note of in order to ascribe a meaning to the word cruelty as is expressed by the legislatures: whereas Explanation

(a) involves three specific situations viz. (i) to drive the woman to commit suicide or (ii) to cause grave 26 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 498A.

21. In Gananath Pattnaik Vs. State of Orissa, (2002) 2 SCC 619, this Court held that the concept of cruelty under Section 498A IPC and its effect under Section 306 IPC varies from individual to individual also depending upon the social and economic status to which such person belongs. This Court held that cruelty for the purpose of offence and the said Section need not be physical. Even mental torture or abnormal behavior may amount to cruelty or harassment in a given case."

33. In the present case, the deceased committed suicide within 7 years of marriage and this fact is not disputed. Therefore, presumption arise as per Section 113A of the Indian Evidence Act and in the above cited judgment the Hon'ble Apex Court was pleased to observe at paragraphs 25 and 26, which are reproduced as under :-

"25. Section 113A only deals with a presumption which the Court may draw in a particular fact situation which may arise when necessary ingredients in order to attract that provision are established. Criminal law amendment and the rule of procedure was necessitated so as to meet the social challenge of saving the married woman from being ill-treated or forcing to commit suicide by the husband or his relatives, demanding dowry. Legislative mandate of the Section is that when a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband had subjected her to cruelty as per the terms defined in Section 498A IPC, the Court may presume having regard to all other circumstances of the case that such suicide has been abetted by the husband or such person. Though a presumption could be drawn, the burden of proof of showing that such an offence has been committed by the accused under Section 498A IPC is on the prosecution. On facts, we have already found that the prosecution has not discharged the burden that A-1 had instigated, conspired or intentionally aided so as to drive the wife to commit suicide or that the alleged extra marital affair was of such a degree which was likely to drive the wife to commit suicide.

26. Section 306 refers to abetment of suicide. It says that if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment for a term which may extend to 10 years and shall also be liable to fine. The action for committing suicide is also on account of mental disturbance caused by mental and physical cruelty. To constitute an offence under Section 306, the prosecution has to establish that a person has committed suicide and the suicide was abetted by the accused. Prosecution has to establish beyond reasonable doubt that the deceased committed suicide and the accused abetted the commission of suicide. But for the alleged extra marital relationship, which if proved, could be illegal and immoral, nothing has been brought out 28 by the prosecution to show that the accused had provoked, incited or induced the wife to commit suicide."

34. Further the Hon'ble Apex Court in the case of Ramesh Kumar vs. State of Chhattisgarh in Appeal (Crl.) No.617 of 2000 dated 17.10.2001 while making interpretation of the provision of insertion of Section 113A of the Indian Evidence Act, it is observed as follows:-

"This provision was introduced by Criminal Law (Second) Amendment Act, 1983 with effect from 26.12.1983 to meet a social demand to resolve difficulty of proof where helpless married women were eliminated by being forced to commit suicide by the husband or in-laws and incriminating evidence was usually available within the four-corners of the matrimonial home and hence was not available to any one outside the occupants of the house. How-ever still it cannot be lost sight of that the presumption is intended to operate against the accused in the field of criminal law. Before the presumption may be raised, the foundation thereof must exist. A bare reading of Section 113-A shows that to attract applicability of Section 113-A, it must be shown that (i) woman has committed suicide, (ii) such suicide has been committed within a period of seven years from the date of her marriage, (iii) the husband or his relatives, who are charged had subjected her to cruelty. On existence and availability of the abovesaid circumstances, the Court may presume that such suicide had been abetted by her husband or by such relatives of her husband. The Parliament has chosen to sound a note of caution. Firstly, the presumption is not mandatory; it is only permissive as the employment of expression "may presume" suggests. Secondly, the existence and availability of the abovesaid 29 three circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be drawn the Court shall have to have regard to 'all the other circumstances of the case'. A consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the Court to abstain from drawing the presumption. The expression - 'The other circumstances of the case' used in Section 113-A suggests the need to reach a cause and effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least the presumption is not an irrebuttable one. In spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. The phrase 'May presume' used in Section 113-A is defined in Section 4 of the Evidence Act, which says - 'whenever it is provided by this Act that Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved or may call for proof of it.'"

35. Further in the very same judgment the Hon'ble Apex Court in the case of State of West Bangal v. Orilal Jaiswal and Anr. [(1994) 1 SCC 73], have cautioned the courts that an extreme carefulness is to be adopted in assessing the facts and circumstances in each cases and evidences adduced therein and were pleased to observe as follows :-

"In State of West Bangal v. Orilal Jaiswal and Anr., [1994] 1 SCC 73, this Court has cautioned that the Court 30 should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.

Sections 498-A and 306 IPC are independent and constitute different offences. Though depending on the facts and circumstances of an individual case, subjecting a woman to cruelty may amount to an offence under Section 498-A and may also, if a course of conduct amounting to cruelty is established leaving no other option for the woman except to commit suicide, amount to abetment to commit suicide. However, merely because an accused has been held liable to be punished under Section 498-A IPC it does not follow that on the same evidence he must also and necessarily be held guilty of having abetted the commission of suicide by the woman concerned. Evidential value of the two writings contained in diary Article A is that of dying declarations. On the principle underlying admissibility of dying declaration in evidence that truth sits on the lips of a dying person and the Court can convict an accused on the basis of such declaration where it inspires full confidence, there is no reason why the same principle should not be applied when such a dying declaration speaking of the cause of death exonerates the accused unless there is material available to form an opinion that the deceased while making such statement was trying to conceal the truth either having been persuaded to do so or because of sentiments for her husband. The writing on page 11 of diary (Article A) 31 clearly states that the cause for committing suicide was her own feeling ashamed of her own faults. She categorically declares - none to be held responsible or harassed for her committing suicide. The writing on page 12 of diary (Article A) clearly suggests that some time earlier also she had expressed her wish to commit suicide to her husband and the husband had taken a promise from her that she would not do so. On the date of the incident, the husband probably told the deceased that she was free to go wherever she wished and wanted to go and this revived the earlier impulse of the deceased for committing suicide. The dying declaration Exbt. P/10 corroborates the inference flowing from the two writings contained in the diary and as stated hereinabove. The conduct of the accused trying to put off the fire and taking his wife to hospital also improbabilises the theory of his having abetted suicide."

36. The present case involves committing suicide by the deceased what promoted to commit suicide soon before the death can be considered on the basis of the evidences on record with the background of facts and circumstances therein. The Hon'ble Apex Court at paragraph 17 was pleased to observe regarding 'suicide' in the case of S.S.Chheena v. Vijay Kumar Mahajan and another in Criminal Appeal No.1503 of 2010 dated 12.08.2010, at paragraph 17, which reproduced as under:-

"17. The word "suicide" in itself is nowhere defined in the Penal Code, however its meaning and import is well known and requires to explanation. "Sui" means "self"

and "cide" means "killing", thus implying an act of self- killing. In short, a person committing suicide must commit it by himself, irrespective of the means employed by him in achieving his object of killing himself."

37. Section 306 of IPC deals an offence of abetment of suicide. Section 107 of IIPC deals with abetment of a thing and in this regard, I bank upon the principle of law laid down by the Hon'ble Apex Court in S.S.Chheena's case stated supra at paragraphs 27 and 28, was pleased to observe as follows :-

"27. This Court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) (2009) 16 SCC 605 had an occasion to deal with this aspect of abetment. The Court dealt with the dictionary meaning of the words "instigation" and "goading". The Court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person's suicidability pattern is different from the other. Each person has his own idea of self-esteem and self-respect. Therefore, it is impossible to lay down any straitjacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances.

28. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the 33 legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide."

38. Further, I place reliance on the decision of the Hon'ble Apex Court on this point, in the case of Gurcharan Singh v. State of Punjab in Criminal Appeal No.1135 of 2016 dated 02.12.2016, at paragraphs 22 and 28, their Lordships were pleased to observe as follows :-

""22. It is thus manifest that the offence punishable is one of abetment of the commission of suicide by any person, predicating existence of a live link or nexus between the two, abetment being the propelling causative factor. The basic ingredients of this provision are suicidal death and the abetment thereof. To constitute abetment, the intention and involvement of the accused to aid or instigate the commission of suicide is imperative. Any severance or absence of any of this constituents would militate against this indictment. Remoteness of the culpable acts or omissions rooted in the intention of the accused to actualize the suicide would fall short as well of the offence of abetment essential to attract the punitive mandate of Section 306 IPC. Contiguity, continuity, culpability and complicity of the indictable acts or omission are the concomitant indices of abetment. Section 306 IPC, thus criminalises the sustained incitement for suicide."

xxxx xxxx 34 xxxx "28. The pith and purport of Section 306 IPC has since been enunciated by this Court in Randhir Singh vs. State of Punjab (2004) 13 SCC 129, and the relevant excerpts therefrom are set out hereunder.

12. Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under Section 306 IPC.

13. In State of W.B. Vs. Orilal Jaiswal (1994) 1 SCC 73, this Court has observed that the courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.""

Therefore, upon the principle of law laid down by the Hon'ble Apex Court stated supra, the present case is 35 considered in the background of facts and circumstances and evidences during the trial to find out whether prosecution is able to prove the guilt of the appellants/accused as per the charges levelled against them for the offences punishable under Section 498-A, 306 and 304-B of IPC and Sections 3, 4 and 6 of the D.P.Act.

39. Further the Hon'ble Apex Court in catena of decisions were pleased to laid down the principle of law under Section 304-B of IPC with respect to harassment and dowry demand and dowry death arising out of suicide.

In this regard, the counsel for the appellants relied on the judgment of the Hon'ble Apex Court in the case of Durga Prasad and others v. State of M.P. (MANU/SC/ 0396/2010, the observation of Hon'ble Apex Court at para 15, which is reproduced as under :-

"15. As has been mentioned hereinbefore, in order to hold an accused guilty of an offence under Section 304B IPC, it has to be shown that apart from the fact that the woman died on account of burn or bodily injury, otherwise than under normal circumstances, within 7 years of her 36 marriage, it has also to be 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. Only then would such death be called "dowry death" and such husband or relative shall be deemed to have caused the death of the woman concerned."

40. Further the learned counsel for the appellants has relied on the judgment of the Hon'ble Apex Court in the case of Baijnath and others v. State of Madhya Pradesh [(2017) 1 SCC 101]. In the case of allegation having contained offence of Sections 498-A and 304-B r/w Section 113B of the Indian Evidence Act. The Hon'ble Apex Court upon conjoint reading of Sections 498-A and 304-B of IPC and under Section 113B of the Indian Evidence Act, were pleased to observe at paragraphs 30, 31 and 32, which are reproduced as under :-

"30. The expression "dowry" is ordained to have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961. The expression "cruelty", as explained, contains in its expanse, apart from the conduct of the tormentor, the consequences precipitated thereby qua the lady subjected thereto. Be that as it may, cruelty or harassment by the husband or any relative of his for or in connection with any demand of dowry to reiterate is the gravamen of the two offences.

31. Section 113B of the Act enjoins a statutory presumption as to dowry death in the following terms:

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 has 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 purpose of this section, "dowry death" shall have the same meaning as in Section 304B of the Indian Penal Code (45 of 1860)

32. Noticeably this presumption as well is founded on the proof of cruelty or harassment of the woman dead for or in connection with any demand for dowry by the person charged with the offence. The presumption as to dowry death thus would get activated only upon the proof of the fact that the deceased lady had been subjected to cruelty or harassment for or in connection with any demand for dowry by the accused and that too in the reasonable contiguity of death. Such a proof is thus the legislatively mandated prerequisite to invoke the otherwise statutorily ordained presumption of commission of the offence of dowry death by the person charged therewith."

41. Further the Honb'le Apex Court in the case of State of Rajasthan v. Teg Bahadur and others [MANU/SC/0838/2004], in similar facts and circumstances of involving the offences under 38 Sections 498-A and 304-B of IPC read with Sections 113-B and 114 of the Indian Evidence Act were pleased to make interpretation regarding the expression used in the said sections "soon before" and it is worthwhile to extract paragraph 18 as below :-

"18. Our attention was drawn to Section 113B of the Evidence Act and Section 304B of the Indian Penal Code by the learned counsel appearing for the accused. A conjoint reading of Section 113B of the Indian Evidence Act and Section 304B of the Indian Penal Code shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of "death occurring otherwise than in normal circumstances."

For the above proposition, learned counsel appearing for the accused, cited the judgment of this Court in the case of Hira Lal & Ors. vs. State (Govt.of NCT), Delhi, MANU/SC/0495/2003 : 2003 CriLJ 3711. In that case this Court observed thus:

"The expression "soon before" is very relevant where Section 113B of the Evidence Act and Section 304B IPC are pressed into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by the prosecution. "Soon before" is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test 39 both for the proof of an offence of dowry death as well as for raising a presumption under Section 113B of the Evidence Act. The expression "soon before her death" used in the substantive Section 304B IPC and Section 113B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression "soon before" is not defined. A reference to the expression "soon before" used in Section 114 Illustration (a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods "soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for their possession". The determination of the period which can come within the term "soon before" is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression "soon before" would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence."

42. Further it is worthwhile to consider the principle of law laid down by the Hon'ble Apex Court in the case of Baljeeth Singh and others v. State of Harayana [MANU/SC/0159/2004, were pleased to observe at paragraph 17 which reads as follows :- 40

"17. Having noticed the requirement of law both under Section 304B of the IPC as also under Section 113B of the Evidence Act, we are of the considered opinion that both the courts below erred in drawing an adverse presumption against the accused by shifting the onus on them to prove the date of marriage, which, in our opinion, is not the requirement of law. On the contrary, the law requires the prosecution to establish first by cogent evidence that the death in the case occurred within 7 years of the marriage. Therefore, we will have to consider whether the prosecution has established the factum of Darshana having died within 5 years of her marriage as contended by PW-4. A perusal of his evidence shows that according to him marriage of Darshana was solemnized in the year 1982 but he was not aware which Sambat it was. He says it was the month of Jaistha but was not sure whether it was Sambat 2035. He specifically states that a Bahi entry was made by his nephew Satbir regard to the date of marriage and expenses incurred in connection therewith, but this document was not produced in the court. Existence of such a document is established not only from the evidence of PW-4 but also from the evidence of the Investigating Officer PW-10 who says that he was made known of the existence of such a document but he did not either seize the said document or verify the date of marriage from the said document. He also states that he made an inquiry about the year of marriage of Darshana and nobody was able to tell the date but year of marriage was told to him. He goes further to state that he did not record the statement of those persons who told him about the year of marriage. Therefore, it is clear that the prosecution has failed to produce the available evidence regarding the date of Darshana's marriage thereby failed to discharge its initial onus of proof. The defence in this case has unequivocally challenged the correctness of the date of marriage, as stated by the prosecution. It even examined defence witnesses in this regard. Be that as it may the question whether the defence has been able to establish its version of the date of marriage is immaterial because in the first instance it was for the prosecution to 41 establish this fact which for reasons stated above, it has failed to do. Both the courts below, thus, have clearly erred in shifting the onus of proving the date of marriage on the defence and drawing a presumption against it. This is evident from the finding of the trial court which is as follows : "Accused Baljeet in this case has not been able to rebut the mandatory presumption under Section 113B of the Indian Evidence Act thus prosecution has been able to prove him the guilt". This finding which is concurred to by the High Court, in our opinion, is wholly erroneous and unsustainable in law."

43. Further in the case of Satvir Singh and others v. State of Panjab and others [MANU/SC/ 0588/2001] were pleased to observe at paragraphs 16 and 17 are as follows :-

"16. At the first blush we thought that there was force in the said contention but on a deeper analysis we found that the contention is unacceptable. Section 306 IPC when read with Section 113A of the Evidence Act has only enabled the court to punish a husband or his relative who subjected a woman to cruelty (as envisaged in Section 498A IPC) if such woman committed suicide within 7 years of her marriage. It is immaterial for section 306 IPC whether the cruelty or harassment was caused "soon before her death" or earlier. If it was caused "soon before her death" the special provision in Section 304B IPC would be invokable, otherwise resort can be made to Section 306 IPC.

17. No doubt Section 306 IPC read with Section 113A of the Evidence Act is wide enough to take care of an offence under Section 304B also. But the latter is made a more serious offence by providing a much 42 higher sentence and also by imposing a minimum period of imprisonment as the sentence. In other words, if death occurs otherwise than under normal circumstances within 7 years of the marriage as a sequel to the cruelty or harassment inflicted on a woman with demand of dowry, soon before her death, Parliament intended such a case to be treated as a very serious offence punishable even upto imprisonment for life in appropriate cases. It is for the said purpose that such cases are separated from the general category provided under Section 306 IPC (read with Section 113A of the Evidence Act) and made a separate offence."

44. Upon making interpretation of the key words used in Section 304-B of IPC, the words "soon before"

"soon before her death" and therefore these key words plays an important role in deciding the prosecution case whether the ingredients of offence under Section 304-B of IPC attracts in the present case or not. Therefore, I bank upon the interpretation made by the Hon'ble Apex Court in Satvir Singh's case stated supra for the key words used as above stated supra at paragraphs 14 and 22, which as follows :-

""14. Both the contentions are fallacious. The essential components of Section 304B are: (i) Death of a woman occurring otherwise than under normal circumstances, within 7 years of marriage. (ii) Soon before 43 her death she should have been subjected to cruelty and harassment in connection with any demand for dowry. When the above ingredients are fulfilled, the husband or his relative, who subjected her to such cruelty or harassment, can be presumed to be guilty of offence under Section 304B. To be within the province of the first ingredient the provision stipulates that "where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances". It may appear that the former limb which is described by the words "death caused by burns or bodily injury" is a redundancy because such death would also fall within the wider province of "death caused otherwise than under normal circumstances". The former limb was inserted for highlighting that by no means death caused by burns or bodily injury should be treated as falling outside the ambit of the offence.

In the present context it is advantageous to read Section 113A of the Evidence Act. It is extracted below:

"113A. 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."

xxxx xxxx xxxx "22. It is not enough that harassment or cruelty was caused to the woman with a demand for dowry at 44 some time, if Section 304B is to be invoked. But it should have happened "soon before her death". The said phrase, no doubt, is an elastic expression and can refer to a period either immediately before her death or within a few days or even a few weeks before it. But the proximity to her death is the pivot indicated by that expression. The legislative object in providing such a radius of time by employing the words "soon before her death" is to emphasise the idea that her death should, in all probabilities, have been the aftermath of such cruelty or harassment. In other words, there should be a perceptible nexus between her death and the dowry related harassment or cruelty inflicted on her. If the interval elapsed between the infliction of such harassment or cruelty and her death is wide the court would be in a position to gauge that in all probabilities the death would not have been the immediate cause of her death. It is hence for the court to decide, on the facts and circumstances of each case, whether the said interval in that particular case was sufficient to snuff its cord from the concept soon before her death.""

45. The Hon'ble Apex Court in the case of Kans Raj v. State of Punjab and others [(2000) 5 Supreme Court Cases 207] while making interpretation of the words "soon before her death" and regarding assessment under Section 113B of Indian Evidence Act, this word occurred in both provisions, were pleased to observe at paragraphs 15 and 16, are as follows :-

"15. It is further contended on behalf of the respondents that the statements of the deceased referred to the instances could not be termed to be cruelty or harassment by the husband soon before her death. "Soon before" is a relative term which is required to be considered under specific circumstances of each case and no straightjacket formula can be laid down by fixing any time limit. This expression is pregnant with the idea of proximity test. The term "soon before" is not synonymous with the term "immediately before" and is opposite of the expression "soon after" as used and understood in Section 114, Illustration (a) of the Evidence Act. These words would imply that the interval should not be too long between the time of making the statement and the death. It contemplates the reasonable time which, as earlier noticed, has to be understood and determined under the peculiar circumstances of each case. In relation to dowry deaths, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be "soon before death" if any other intervening circumstance showing the non-existence of such treatment is not brought on record, before such alleged treatment and the date of death. It does not, however, mean that such time can be stretched to any period. Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time which, under the circumstances, be treated as having become stale enough..

16. No presumption under Section 113-B of the Evidence Act would be drawn against the accused if it is shown that after the alleged demand, cruelty or harassment the dispute stood resolved and there was no evidence of cruelty, and harassment thereafter. Mere 46 lapse of some time by itself would not provide to an accused a defence, if the course of conduct relating to cruelty or harassment in connection with the dowry demand is shown to have existed earlier in time not too late and not too stale before the date of death of the woman. The reliance placed by the learned counsel for the respondents on Sham Lal v. State of Haryana [(1997) 9 SCC 579] is of no help to them, as in that case the evidence was brought on record to show that attempt had been made to patch up between the two sides for which panchayat was held in which it was resolved that the deceased would go back to the nuptial home pursuant to which she was taken by the husband to his house. Such a panchayat was shown to have held about 10 to 15 days prior to the occurrence of the case. There was nothing on record to show that the deceased was either treated with cruelty or harassed with the demand of dowry during the period between her having taken to the nuptial home and her tragic end. Such is not the position in the instant case as the continuous harassment to the deceased is never shown to have settled or resolved."

46. Section 304-B of IPC and Section 306 of IPC are not mutually exclusive to each other and in this regard, it is worthwhile to refer the judgment of Hon'ble Apex Court in the case of Bhupendra v. State of Madhya Pradesh [(2014) 2 Supreme Court Cases 106], were pleased to observe at paragraphs 27, 28, 29 and 30 which are reproduced as under :-

"Mutual exclusivity of Sections 304-B and 306 of the IPC

27. The second contention is also without any substance. In Satvir Singh and Others v. State of Punjab and Another, [(2001) 8 SCC 633] this Court drew a distinction between Section 306 of the IPC and Section 304-B of the IPC in the following words: (SCC pp.641-42, para 16) "16. ...... Section 306 IPC when read with Section 113-A of the Evidence Act has only enabled the court to punish a husband or his relative who subjected a woman to cruelty (as envisaged in Section 498-A IPC) if such woman committed suicide within 7 years of her marriage. It is immaterial for Section 306 IPC whether the cruelty or harassment was caused 'soon before her death' or earlier. If it was caused 'soon before her death' the special provision in Section 304-B IPC would be invocable, otherwise resort can be made to Section 306 IPC."

28. It was held that Section 306 IPC is wide enough to take care of an offence under Section 304-B also. However, an offence under Section 304-B of the IPC has been made a far more serious offence with imposition of a minimum period of seven years' imprisonment with the sentence going upto imprisonment for life. Considering the gravity of the offence it is treated separately from an offence punishable under Section 306 of the IPC. On this basis, this Court in Satvir Singh [(2001) 8 SCC 633] (SCC p.642, para 18) rejected the contention that if a dowry related death is a case of suicide it would not fall within the purview of Section 304-B of the IPC at all. Reliance in this regard was placed on Shanti v. State of Haryana, [(1991) 1 SCC 371] and Kans Raj v. State of Punjab and Others, [(2000) 5 SCC 207] wherein this Court held that a suicide is one of the modes of death falling within the ambit of Section 304-B of the IPC.

29. In Shanti [(1991) 1 SCC 371] this Court was concerned with a death that had occurred "otherwise than under normal circumstances" as mentioned in Section 304-B of the IPC. It was held that an unnatural dowry death, whether homicidal or suicidal, would attract Section 304-B of the IPC. This expression was also considered in Kans Raj [(2000) 5 SCC 207] where it was held that it would mean death, not in the normal course, but apparently under suspicious circumstances, if not caused by burns or bodily injury. In Kans Raj [(2000) 5 SCC 207] the conviction of the husband of the deceased was upheld both for offences punishable under Section 304-B of the IPC and Section 306 of the IPC also.

30. We are, therefore, of the opinion that Section 306 of the IPC is much broader in its application and takes within its fold one aspect of Section 304-B of the IPC. These two sections are not mutually exclusive. If a conviction for causing a suicide is based on Section 304-B IPC, it will necessarily attract Section 306 of the IPC. However, the converse is not true."

47. Therefore, based on the principle of law laid down by the Hon'ble Apex Court stated supra in the present case the evidence of prosecution witnesses are to be appreciated. It is the case of prosecution that as per complaint averment and charge sheet materials the deceased was given in marriage to appellant No.1/accused No.1 in the month of May, 2007 and there was marriage talks were held before the marriage and there was demand 49 of dowry made by the appellants and accordingly at the time of marriage the parents of the deceased have given dowry amount of Rs.1,00,000/- in cash.

48. Further it is the allegation against the appellants that after three months of marriage the appellants have started abetting the deceased and driven out the deceased from the house. Further it is the allegation against the appellants that when the deceased was pregnant therefore at the time of performance of 'Kubusa' ceremony at that time also the appellants have once again demanded to bring dowry of one tola gold and clothes, otherwise they will not allow for performance of 'Kubusa' ceremony and accordingly on 02.09.2008 performed 'Kubusa' ceremony in the house of the appellants and at that time five gram of gold was given to the appellants.

49. Further, it is the allegation against the appellants that prior to 15 to 20 days from the date of 50 death of deceased the appellant No.1 had called through phone to PW.1 that he had sustained loss in grocery business and accordingly a sum of Rs.30,000/- was to be given and for this the appellants were abetting the deceased and was quarrelling daily with the deceased. On 18.01.2008 the deceased died and it is allegation against the appellants that due to the continuous ill-treatment, cruelty and torture both physically and mentally given to the deceased in relation to demand of dowry amount the deceased committed suicide by jumping into the well and ended her life. Therefore, in the month of May, 2007 the deceased was given in marriage to appellant No.1 and on 18.10.2008 the deceased by jumping into the well died due to ill-treatment and cruelty.

50. The learned counsel for appellants submitted that the prosecution is not having any definite regarding the death of the deceased whether it is suicidal death or accidental death falling in the well. Further submitted that in order to attract offence under Section 304-B of IPC, the 51 prosecution has to prove that there is cruelty to the deceased 'soon before her death' and thus that would constitute abetment to the deceased to commit suicide. Therefore, in this regard when the death of the deceased was occurred within one and half year from the date of marriage the ingredient of cruelty, abetment and dowry death and raising presumption are to be considered in the background of the evidence adduced coupled with the admitted factual matrix involved in the present case.

51. The admitted facts are emerged from the material on record in the present case are -

a) The deceased was given in marriage to the appellant No.1 in the month of May, 2007.

b) The deceased was pregnant at the time of death;

c) Death of the deceased was occurred on 18.10.2008 and her body was found in the well;

d) The death of the deceased is otherwise than on normal circumstances as her dead body was floating in the well;

e) The death of the deceased was occurred within seven years of marriage from the date of marriage;

52. Under these admitted facts involved in the present case, let me consider the evidence of PW.1, PW.2, PW.3, PW.4 and PW.5. The PW.1 deposed that the deceased is her younger sister and her marriage was taken place with appellant No.1 in the year 2007 at Dalagi Village and in the marriage a sum of Rs.91,000/- and one tola gold was given to the appellant No.1.

53. It is deposed that after 3-4 months from the date of marriage the appellants have started ill-treatment to the deceased and were assaulting the deceased demanding to bring more dowry amount and he came to know this fact from his sister on phone. Therefore, the PW.1 had informed this fact to PW.9 - Sharanappa who was the mediator of the said marriage of the deceased and the appellant No.1 and PW.9 - Sharanappa had advised the appellants. Then the PWs.1 and 9 went to the house of 53 appellants and advised them and even the PW.1 had deposed that the appellants have assaulted the deceased in their presence. Therefore, it is the evidence that PWs.1 and 9 have advised the appellants not to ill-treat the deceased for dowry amount. But the appellants continued to give ill-treatment and harassment by demanding dowry amount and then without tolerating the same the deceased had committed suicide by jumping into the well. By considering the cross-examination of PW.1 nothing is revealed that PW.1 is telling falsehoodness before the court.

54. The learned counsel for the appellants argued with reference to cross-examination that PW.1 himself is doing coolie work under one of the employment, therefore he was not able to give such huge dowry amount of Rs.91,000/-, hence in this regard the case of prosecution that the ill-treatment and cruelty was given in relation to demand of dowry is false. But upon considering the evidence of PW.7 who has stated that he has given hand 54 loan of Rs.80,000/- to PW.1 for performing marriage of his sister. Therefore the evidence of PW.7 is found to be trustworthy and believable. At the time of marriage, there was marriage talks held and the appellants have demanded dowry amount and PW.1 had given dowry amount of Rs.91,000/- to the appellants and for this the PW.1 received hand loan of Rs.80,000/- from PW.7 and thus performed the marriage of the deceased. Therefore, in this regard the evidence of PW.1 is found to be trustworthy.

55. Further upon considering the evidence of PW.7 he has deposed that he has given hand loan of Rs.80,000/- to PW.1 and out of the said amount the PW.1 had performed the marriage of his sister with appellant No.1. It is the evidence of PW.9 that he had acted as mediator in marriage between appellant No.1 and the deceased and has negotiated and participated in the marriage talks between two families of PW.1 and the appellants and further PW.1 had stated that after the 55 marriage the appellants have started giving ill-treatment and cruelty to the deceased and harassing to bring dowry amount and he has advised the appellants not to do but inspite of it the appellants have continued harassing the deceased to bring more dowry amount and thus in this way have given physical and mental torture to the deceased. Upon considering the cross-examination of PW.7 and 9 nothing is revealed that they telling lie before the court.

56. PW.2 is the wife of PW.1 and she has given evidence in the same line as that of PW.1 and the PW.2 had stated that she and her husband PW.1 went to the house of the appellants and advised not to ill-treat the deceased but the appellants have continued the ill- treatment. Further PWs.1 and 2 have stated that while performing the 'Kubusa' Ceremony, also the appellants have demanded dowry amount in the form of gold then they have given half tola of gold by performing 'Kubusa' Ceremony and thereafter they brought their sister in their 56 house and then further it is the evidence of PWs.1 and 2 that the deceased had told them that the appellants were demanding to bring Rs.30,000/- otherwise they do not allow her in to the house and after two days the PWs.1 and 2 have taken the deceased-sister to the house of the appellants and left her by saying that the said amount of Rs.30,000/- be given after Deepawali Festival. But again the appellants have started ill-treating the deceased and in the meantime the deceased committed suicide by jumping into the well.

57. Therefore upon considering all these evidences in this regard as above discussed the above said evidences are not impeached in cross-examination so as to say that they are telling lie before the court. Therefore, the evidence of PWs.1, 2, 7 and 9 as discussed above are proved on the aspect that the appellants were giving continues ill- treatment and cruelty and harassing the deceased in relation to bring more dowry amount and then the 57 deceased on 18.10.2008 by jumping into the well ended her life.

58. PW.3 is the sister of the deceased and PW.1. PW.24 is the mother of PW.1 and the deceased and PW.25 is the brother of PW.24, who is maternal uncle of the deceased have stated that deceased was given in marriage to appellant No.1 and after the marriage the appellants have started to give ill-treatment to the deceased and the said ill-treatment was continuous one in relation to demand of dowry amount and they have given evidence in the line of PWs.1 and 2 and just because these witnesses are relative witnesses that cannot be made ground to reject their evidences.

59. Upon considering the cross-examination of these witnesses PWs.3, 24 and 25, nothing is impeached so as to say that these witnesses are telling lie before the court. No doubt PWs.1, 2, 3, 4 and 5 are near relative to the deceased but their evidences cannot be rejected just 58 because of their close relationship with the deceased and their evidences are to be carefully and cautiously considered whether there is any element of false fixation of appellants into the case. In this regard when their evidences are carefully considered as discussed above, their evidences is found to be trustworthy, believable and inspire confidence of the court that they are not telling lie before the court that the appellants have committed the offences as alleged and just because these witnesses are close relative to the deceased, in this regard how the evidences of relatives can be appreciated, I place reliance on the judgment of the Hon'ble Apex Court in the case of State of Himachal Pradesh vs. Rajkumar [(2018) 2 Supreme Court Cases 69], wherein it is observed as under:

"16. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to be truthful in the given circumstances of the case. Once that impression is formed, it is necessary for the court to scrutinize the evidence more particularly keeping in view 59 the drawbacks and infirmities pointed out in the evidence and evaluate them to find out whether it is against the general tenor of the prosecution case."

60. I place reliance on another judgment of Hon'ble Apex Court in the case of Gurdev Singh vs. State of Punjab [AIR 1992 SC 1924]; Kathi Odhabhai Bhimabhai and others vs. State of Gujarat [AIR 1993 SC 1193].

61. Therefore, after careful consideration of the evidences of these witnesses, these witnesses just because they are close relative of the deceased cannot be rejected the evidence in toto. Therefore, from the evidences of these three witnesses, it is proved the offence alleged against the appellants.

62. PW.4 has deposed that the relationship between these two families in the marriage of appellant No.1 and the deceased is made through him and since there is union of relationship with these two families 60 through him and which was occurred in the house of PW.1 and the marriage talks were held and he has participated in the said marriage talks and during the marriage talks there was settled dowry amount of Rs.91,000/- is to be given to the appellants and five grams of gold and the marriage expenses to be borne by PW.1 and after 15 days from the date of marriage talks PW.1 had handed over the dowry amount to the appellants.

63. Further, it is stated that after the marriage the deceased went to the house of appellants and then appellants have started giving ill-treatment and cruelty in connection with demand of dowry amount and since he is also of the same village as that of the appellants, therefore, he came to know that the appellants were beating the deceased and giving ill-treatment and cruelty and inspite of advise made by him the appellants have not heeded to his request.

64. Further PW.4 has stated that once time in his presence the appellants have beaten the deceased. The said ill-treatment and cruelty is continued till the death of the deceased and therefore deposed that without tolerating the said torture given by the appellants both physically and mentally the deceased committed suicide by jumping into the well. The PW.4 has put into much cross-examination and only thing is revealed that he is relative of PW.1 and nothing is revealed so as to discredit the evidence of PW.4. Just because PW.4 is relative of PW.1 that cannot be made ground to reject his evidence as his evidence is carefully and cautiously considered and his evidence is found to be trustworthy and believable for the offence committed by the appellants.

65. PW.23 is the relative of PW.1 who has also stated the same version as that of PW.4. Upon considering the evidence of PW.23 who is found to be relative of PW.1 but upon considering the cross-examination which is cryptic in nature is not found to be dis-believable. 62 Therefore, from the evidence of PW.23 also the alleged offences committed by the appellants are proved.

66. Then coming to the evidences of PWs.5, 6 and 8 and all these witnesses have stated that there was marriage talks between the family of PW.1 and the family of appellants and it was settled for giving dowry amount of Rs.91,000/- and five grams of gold and then marriage was performed and the deceased during her marital life in the house of appellants she was subjected to cruelty and ill- treatment both physically and mentally and which was continuous one till her death and also it is the evidence of these witnesses that during the marital life the appellants have demanded to bring more dowry amount of Rs.30,000/- and also it is stated that upon hearing that the appellants were giving ill-treatment cruelty, the PWs.1 and 2 and other witnesses along with PW.9 and others have come to the house of appellants and they have advised not to ill-treat the deceased but the appellants have continued to give ill-treatment to the deceased. Upon 63 considering the cross-examination of these witnesses which is cryptic in nature nothing is impeached the depositions made by these witnesses and thus their evidences are found to be believable and trustworthy.

67. Then upon considering the evidences of PWs.10 to 19, but they have not supported the prosecution case by saying that they do not know the marriage talks between them, among them PW.15 had stated that he heard that there was marriage talks and in the said marriage talks the appellants have demanded dowry amount and accordingly it was settled at Rs.91,000/- and one tola gold. The PW.1 had gave the said amount of Rs.91,000/- as dowry and one tola gold to the appellants. Therefore, these witnesses have turned hostile except PW.15 to the extent above stated.

68. Therefore, from considering the evidences of all these witnesses as above discussed and taken together 64 with its cumulative effect, the prosecution is able to prove the facts in issue that -

a) There was marriage talks between PW.1 and the appellants and in the marriage talks the dowry amount was settled for Rs.91,000/- and half tola gold and PW.1 had given the said dowry amount at the time of marriage which is held in the month of May, 2007.

b) After the marriage the deceased went to the appellants house for leading marital life and during the marital life in the house of the appellants, the appellants have started to give ill- treatment and cruelty physically and mentally in connection with to bring more dowry amount and thus torture was continuing till the death of the deceased.

c) The above stated witnesses had stated that they have advised the appellants not to give ill- treatment but in spite of the advise made the appellants have continued ill-treatment and cruelty to the deceased and the said harassment and torture was continues one till the death of the deceased.

d) It is proved that the appellants have received the dowry amount from PW.1 as above stated and also after the marriage, at the time of performing 'Kubsa' Ceremony the appellants have demanded dowry amount and also on the guise of having sustained the loss in the business the appellants have demanded dowry amount of Rs.30,000/-.

69. It is proved that the ill-treatment and cruelty made by the appellants to the deceased is continuous one having continuing effect till the death of the deceased and this cruelty prompt the deceased to take such extreme step to ending her life by committing suicide as there was no other alternative way except to commit suicide thus the deceased had committed suicide jumping into the well.

70. Therefore upon considering the evidences on record as discussed above, the prosecution is able to prove that the death of the deceased is not accidental death but suicidal death and because of such abetment to commit 66 suicide the deceased had committed the suicide by jumping into the well.

71. The learned counsel for appellants submitted that as per the post mortem report there was semi digested food found in the intestine and therefore submitted if at all the deceased was intending to commit suicide by jumping into the well then she would not have taken food and therefore submitted the deceased had taken food at morning and thereafter by fetching water into the well but accidentally slipped into the well and thus drowned. Therefore submitted the death of the deceased is accidental one.

72. No doubt as per the prosecution case and the evidences as discussed above, there are no eyewitnesses having seen that the deceased jumped into the well. Because of the fact that there was no eyewitnesses to the incident appellants have taken defence that the death of the deceased is accidental one and because of semi 67 digested food in the intestine as per the post mortem report but upon considering the entire evidences on record as discussed above, there was continuous ill-treatment both physically and mentally by the appellants to the deceased and it was continuing effect and even the elder persons above stated and advised the appellants not to give ill-treatment and not to continue the cruelty to the deceased but in spite of that the appellants have continued the same and thus, resulted into the death of the deceased by jumping into the well. Therefore, the action and reason behind the death of the deceased can be said that because of continues ill-treatment and cruelty the deceased had jumped into the well and died and certainly it cannot be said that there was accidental fall in the well. Just because semi digested food found in the intestine as per post mortem report, it cannot be said that a person if intended to commit suicide could not take food at all is a only assumption and presumption argument. It can also be stated in these lines that considering the line 68 of argument by the counsel for the appellants that when the deceased was intending to commit suicide and it was her precaution that she was about to take such extreme step which should not be made known to others by jumping into the well. Therefore pretended that she was normally in her day to day activities might have taken food in the house then jumped into the well. Therefore, there is no hard and fast rule to say that if any person decides to jump into the well to commit suicide that person does not take food prior to that. Therefore, this line of argument made by the learned counsel for the appellants is only a presumption.

73. Further upon considering the evidence of Doctor PW.34, it is proved that he had conducted post mortem examination of the deceased on 19.10.2008 when the dead body was brought to the hospital and the death of the deceased was due to asphyxia by drowning in the water and death was occurred in between 24 to 36 hours from the time of examination and accordingly he has given 69 post mortem report as per Ex.P.25. There is no impeachment in the course of cross-examination to disbelieve the evidence of PW.34 - Doctor.

74. The other witnesses are formal in nature which are police officials who have registered the crime, conducted panchanamas, Engineer who has prepared the spot sketch, Tahasidlar who has conducted inquest panchanama, Village Accountant who has given record of rights of Well etc., PWs.39 and 41 are the Investigating Officer who have conducted first part of investigation and later part of investigation, completed the investigation and filed charge sheet.

75. These PWs.39 and 41 Investigating Officers have narrated the sequence of investigation during the course of investigation which is from the very inception point of time soon after registration of crime made arrangement for recording inquest panchanama through PW.33-Tahasildar and reporting this fact to the higher 70 officials and Magistrate, recording statement of the witnesses, conducting panchanama, collection of evidences in the course of investigation and thus filed charge sheet as against the appellants. Therefore the evidences of these officials are found to be in their official course of duty and found to be natural and fair and it is not found that the evidence of these witnesses are found to be unbelievable.

76. As per the evidences as discussed above, the ingredient of Section 498-A of IPC are proved that after the marriage the appellants have started giving ill-treatment and cruelty both physically and mentally to the deceased and also it is proved that the ingredient of offences under Section 3 and 6 of the Dowry Prohibition Act are proved that before the marriage there was talk with regard to dowry as the appellants have demanded dowry amount and PW.1 has given the dowry amount to the appellants and during the subsistence of the matrimonial life also the appellants have given torture to the deceased in 71 connection with to bring more dowry amount. Therefore the offences under Sections 3 and 6 of the Dowry Prohibition Act are also attracted. Thus, in this way the ingredients of cruelty and harassment to the deceased in connection with dowry are proved. The Sessions Court has not framed charge under Section 4 of the Dowry Prohibition Act but however convicted the appellants under Section 4 of the Dowry Prohibition Act. Therefore, in this regard the conviction of appellants under Section 4 of the Dowry Prohibition Act in absence of framing of charge is not correct so far as to this extent is concerned the judgment of conviction and order on sentence is liable to be modified.

77. Further upon considering whether the ingredients of Section 306 of IPC are constituted as against the appellants to say that they have committed the alleged offences. This is to be considered along with the provisions under Sections 107 and 306 of IPC can always be read along with Section 107 of the IPC. Abetment 72 always precedes by intention on part of the accused, the abetment may be either directly or indirectly. In the present case abetment as alleged against the appellants is that they subjected the deceased into cruelty and ill- treatment continuously throughout her life making prompting the deceased to commit suicide and thus developing in the mind of the deceased to take such extreme step of ending her life would constitute abetment. Therefore, the act of the appellants in this regard what is discussed above from the evidences of witnesses constitutes the abetment by the appellants to the deceased so as to take such extreme step of ending her life by committing suicide. Therefore, as per the principle of law laid down as discussed above stated supra the prosecution is able to prove that there is abetment by the appellants to the deceased to commit suicide and thus abetment by the appellants is by series of acts which continues till the death of the deceased and also the abetment is so strong that it developed in the mind of the 73 deceased without any alternative way to take such extreme step to end her life by committing suicide. Therefore, the offence under Section 306 of IPC is also proved by the prosecution as against the appellants.

78. Considering the next course argument made by the senior counsel for the appellants that the offence under Section 304-B of IPC is not attracted because there is no element on part of prosecution that there is no proof that 'soon before her death' the deceased was subjected to cruelty and harassment by the appellants. Therefore, it is much argued that there is no evidences on record that 'soon before her death' the appellants have subjected the deceased into cruelty. Considering this course of argument made by the learned counsel for the appellants that for the element of 'soon before her death' there is no straight-jacket formula to show that there must be a proximity of time between the act of cruelty and occurrence of death of the deceased. The proximity of time in this regard is depending upon facts and circumstances 74 in each case. Soon before her death is always be considered and appreciated in the given set of facts and circumstances based on the evidences whether it is particular point of time or whether it is a continuing effect for long time is also to be considered.

79. Upon making conjoint reading of Section 113-B of the Indian Evidence Act and Section 304 of IPC, there must be evidences to show that 'soon before her death' the deceased was subjected to cruelty in connection with dowry demand. The expression 'soon before her death' can be seen both in Section 113-B of Indian Evidence Act and in Section 304-B of IPC. There is no fixed period to say that 'soon before death' there was such cruelty to the deceased. It is not proper to adopt a fixed period to say that 'soon before her death' there was cruelty to the deceased. As discussed above, soon before the death of the deceased there should be a cruelty/ill-treatment in connection with the dowry demand either there may be one or two acts abetting the deceased to die in an 75 unnatural circumstances or there may be a series of acts or omissions for longer time period which cumulatively affect on the mind of the deceased. The abetting the deceased to end her life in an unnatural circumstances, but at the same time, there should not be too stretch of longer period of years together regarding proximity of the act of cruelty and the death of the deceased in an unnatural way. Applying this base 'soon before her death' as enshrined under Section 113-B of the Indian Evidence Act and Section 304 of IPC and considering the same, in the present case in the month of May, 2007 the marriage was performed between appellant No.1 with deceased and on 18.10.2008 the deceased had committed suicide by jumping into the well. Therefore within one and half year of time from the date of marriage the deceased committed suicide. In between this time, there is continuous ill- treatment and cruelty to the deceased by the appellants in connection with demand of dowry amount. Even at the time of performing 'Kubusa' Ceremony also the appellants 76 have demanded dowry amount and during Deepawali Festival the appellants have demanded dowry amount of Rs.30,000/- from the deceased and for that purpose the appellants have subjected the deceased into cruelty and have been beaten the deceased and the PW.1 and others have stated that after the Deepawali Festival the demand of the appellants would be met with but the appellants did not wait till that time and they continued to give ill- treatment and cruelty. Therefore within a short period before Deepawali Festival and after Deepawali Festival on 18.10.2008 the deceased had committed suicide. Therefore, appreciating the evidences on record as discussed above from the evidences above stated in the present case till the date of committing suicide by the deceased there was continuous ill-treatment and cruelty in connection with the demand of dowry. Therefore, in the present case, it can safely be held that soon before the death of the deceased the appellants have subjected the deceased into cruelty in connection with the demand of 77 dowry amount and therefore the deceased committed suicide and thus the death of the deceased is in unnatural circumstances and within seven years of marriage. Therefore, rightly a presumption arises in favour of the prosecution as per Section 113-B of the Indian Evidence Act to attract the punishment under Section 304-B of IPC and for this the appellants have not at all led any defence evidence or either in the course of cross-examination of prosecution witnesses rebutting the presumption or by way of leading evidence. Therefore, it can safely be held that the appellants have committed the offence under Section 304-B of IPC.

80. Therefore for the foregoing reasons and discussion made above the prosecution has proved all the ingredients of offences under Sections 498-A, 306 and 304-B of IPC and also under Sections 3 and 6 of the Dowry Prohibition Act and upon re-appreciation of evidences on record, I do not find any merit in the appeal as the judgment of conviction and order on sentence 78 recorded by the Sessions Court is perfectly justifiable and correct one except conviction is made under Section 4 of the Dowry Prohibition Act, for the reason that the Sessions Court has not framed charge under Section 4 of the Dowry Prohibition Act. Therefore, the judgment of conviction and order on sentence passed by the Sessions Court for the offences punishable under Sections 498-A, 306 and 304-B read with Section 34 of IPC and under Section 3 and 6 of the Dowry Prohibition Act is liable to be confirmed and accordingly it is confirmed.

81. So far as Section 4 of the Dowry Prohibition Act, the Sessions Court has not framed the charge. Therefore there was no occasion for the appellants to face and to defend the charge under Section 4 of the Dowry Prohibition Act and the conviction and order on sentence so far as Section 4 of the Dowry Prohibition Act is concerned is liable to be set-aside. Therefore, on this limited extent the criminal appeal is liable to be allowed and thus, the judgment of conviction and order on 79 sentence is liable to be modified. Hence, I proceed to pass the following :

ORDER The appeal is herby allowed in part.

The judgment of conviction dated 16.06.2012 and order on sentence dated 21.06.2012 passed in Sessions Case No.51/2009 passed by the court of the Presiding Officer, FTC-II, Bidar for the offences punishable under Sections 498-A, 306 and 304 read with Section 34 of IPC and under Section 3 and 6 of the Dowry Prohibition Act is hereby confirmed.

The judgment of conviction and order on sentence so far as convicting the appellants for the offence punishable under Section 4 of Dowry Prohibition Act is hereby set-

aside.

The other terms of the order on sentence is not disturbed.

Send the certified copy of this order to the Sessions Court along with trial court records and Sessions Court is directed to take steps against the appellants to serve the sentences as ordered by the Sessions court and confirmed by this court.

Sd/-

JUDGE sn

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