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 MLC is not admissible in evidence.

36. In the present case appellants, Phool Singh (Mausa) and Kanta Devi (Mausi) have been convicted under section 498-A, IPC and appellants, Jai Prakash (husband of the deceased); Dropdi (mother-in-law of the deceased); and Sohan Lal (father-in-law of the deceased) have been convicted by the trial Court under Section 498-A as well section 304-B, IPC. While section 498-A, IPC deals with cruelty subjected on a woman by her husband or a relative; section 304-B IPC along with 113-B, Evidence Act deals with dowry death and presumption as to dowry death. Section 498-A of the IPC reads as under:

46. Learned counsel for the appellants has further submitted that no case is made out against the appellants even under section 498-A, IPC leave alone section 304-B, IPC inasmuch as, not even a single incident with regard to any cruelty or harassment meted out to the deceased by the appellants ‗for or in connection with dowry', or even otherwise, has been alleged need alone establish against the appellants. Contrary to this, learned counsel for the State has submitted that on 18.7.1991, Rajbala (deceased) had made a telephone call wherein she had requested her parents and brother to visit her matrimonial home and had further categorically stated that the appellants were threatening her. Counsel for the State has contended that since it was only pursuant to the telephone call that the mother, father and brother of the deceased visited her matrimonial home, the same goes to show that the deceased was being subjected to harassment by the appellants. I have carefully scrutinised the material on record on this aspect also. It is settled position of law that section 498-A, IPC creates a distinct and separate offence as against section 304-B, IPC. In section 498-A, IPC ‗cruelty' has been defined in the Explanation to the said section, through two limbs. The first limb of section 498-A defines ‗cruelty' in clause (a) of the Explanation as any willful conduct which is of such a nature as is likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical). The second limb i.e. clause (b) of the Explanation to section 498-A, provides that ‗cruelty' shall also include harassment with regard to demand of dowry. (Gopal Vs. State of Rajasthan, 2009 (2) SCALE 704). Applying the settled position of law to the facts of this case, I find that there is no evidence on record to suggest that the conduct of the appellants was of such a nature which may have driven Rajbala to commit suicide or to cause grave injury or danger to her life, limb or health. No doubt learned counsel for the State has pointed out that PW-4, Sh. Hardwari Lal has deposed that about 6/7 years ago, at about 9:45/10:00 a.m., Raj Bala had telephoned at his house and requested him to call her father (PW-8, Sh. Kedar Nath) and PW-8 has deposed that Rajbala had informed that her life was in danger. In my considered opinion, the evidence led by PW-4 only established that a telephone call had been made by Rajbala, but does not establish the factum of any harassment meted out to the deceased (Rajbala) by the appellants. This is more so when not even a single incident with regard to any cruelty or harassment meted out ‗for or in connection with dowry', or even otherwise, to the deceased by the appellants, has been mentioned in the statement/ evidence of any of the witnesses. Rajbala had visited her parental house many times before her death, however neither are there any allegations that Rajbala had ever complained of any harassment or ill-treatment at the hands of the appellant, nor do the surrounding circumstances show that any harassment was ever inflicted upon the deceased. The fact that Rajbala visited her parental house number of times would establish that she had no restrictions on visiting her parents and in case she was being harassed, she would have in all probability mentioned the same to her parents, brother or at least her mother. Even otherwise, evidence of PW-8 that Rajbala had informed him that her life was in danger, cannot be relied upon, inasmuch as, a bare perusal of the evidence of PW-8 (father of the deceased) would show that the evidence led by PW-8 is wrought with contradictions. Initially PW-8 deposed that the appellants were not only beating Rajbala but that Rajbala had also informed him that there was a danger to her life and that she might be killed on that very day. However, during cross-examination PW-8 was confronted with his statement recorded before the SDM wherein it was not recorded that Rajbala had been subjected to any beatings. Even otherwise, in the cross-examination dated 24.10.1997, PW-8 deposed to not remember whether in his statement recorded by the Court on 26.08.1997, it was stated by him that his daughter Rajbala had informed him over the telephone that her husband and her parents-in-law were beating her. PW-8 deposed that he did not state this fact to the police or to the SDM because his daughter never did tell any such fact to him on telephone. PW-8 deposed that in his statement recorded by the police and the SDM, he had stated that his daughter had informed him that her life was in danger from her husband and parents-in-law and perhaps she might be killed on that very day. PW-8 was however confronted with the statement Ex-PW-8/D-1 and PW-8/1 where it was only recorded that the deceased had informed the witness that her life was in danger. Furthermore, all the three star prosecution witnesses- PW-1; PW-3; and PW-8 claim to have received the said telephone call on 18.07.1991 (i.e. one day before the death) from the deceased herself, thus creating a doubt in the mind of the Court as regards their truthfulness and reliability. Be that as it may, conviction of the appellants cannot certainly be based on a telephone call, when the surrounding circumstances point in the opposite direction. As per PW-1 (mother of the deceased), Raj Bala (deceased) had come to the parental house to meet them for about 8 or 10 times after her marriage or before her death. However, it is not the case of the prosecution that Rajbala had ever complained of any ill-treatment meted out to her by the appellants or that she was ever subjected to any harassment or any demand for dowry had been made. Although PW-1 had subsequently deposed that when her sons used to go to the matrimonial home of the deceased to meet her once in a month or two, the appellants never allowed them to meet the deceased. However, I find the same to have been unreliable as during cross-examination by counsel for the appellants, PW-2 (Raj Kumar, brother of the deceased) has himself deposed that he was on visiting terms with the in-laws of Raj Bala and till her death he had visited her matrimonial home twice or thrice and that his father (PW-8) had gone to the matrimonial home of Raj Bala on three or four occasions. Apart from this, he had also gone to her matrimonial home on the occasion of Diwali, Bhaiyadooj, Rakshabandhan and Holi. As per PW-2, till her death, Raj Bala had come to her parental house on 20-22 occasions. In my considered opinion, had Rajbala been ill-treated by the appellants, she would have surely mentioned about the same to her parents, brother or any other family member during the several times she visited her parental house or in case Rajbala was being ill-treated she would have noticed the same during her visits to her matrimonial home. However, there is not even a stray allegation that the appellants teased or harassed the deceased. There is no past history in the form of any complaint/police report. In fact, PW-8 (father of the deceased) has further deposed in his cross-examination that it was correct that a male child was born to his daughter, Rajbala one month prior to the incident and as per PW-8, at the time of delivery of child, PW-8 and his wife were present in the hospital. The deposition of PW-8 not only shows that they were in constant touch with their daughter (Rajbala), but also that her husband and in laws had not imposed any such restriction on Rajbala meeting her family at any time after her marriage. There are no allegations that the in-laws of Rajbala did not take proper care of the deceased while she was admitted in the hospital. Further PW-5 (Bicholia, Ram Swaroop) has also not supported the case of the prosecution and has in his cross-examination by counsel for the appellants stated that Raj Bala was happy with her in-laws and he had never received any complaint from her parents against the appellants. In my opinion, in the absence of any evidence on record against the appellants that cruelty or harassment was meted out to the deceased by the appellants ‗for or in connection with dowry', or even otherwise, the case of the prosecution cannot stand.

50. Careful reading of the statements of all the close family relations would show that even when they visited their daughter there was no argument between her in-laws and her parents. None of the witness has deposed that the atmosphere was tense or charged up or that they were threatened.

51. In my considered opinion, there is no evidence on record as to enable me to arrive at a conclusive finding that the appellants have committed an act which would be brought under clause (a) or (b) to the Explanation to section 498-A, IPC or section 304-B, IPC. Apart from the single solitary incident of the demand of Rs.20,000/-, (which as already stated above was not a demand for dowry), no other evidence has been led against the appellants that any demand was made either before the marriage; at the time of marriage; or even after the marriage of Rajbala. Accordingly, no case is made out against the appellants (Smt. Dropadi; Sh. Sohan Lal; and Sh. Jai Prakash) in Crl. Appeal No. 333/2001 under section 304-B, IPC as well as under section 498-A, IPC as well as Phool Singh and Kanta Devi in Appeal [Crl. Appeal No.280/2001].

55. A bare reading of para 46 of the judgment would show that the trial court has come to the conclusion that since these two appellants were also present at the time of demand of Rs. 20,000/- and as such they are also to be made liable for. As already observed in the aforegoing paragraphs that the demand of Rs. 20,000/- was not a demand in connection with marriage and as such did not fall within the purview of the definition of dowry. Even otherwise, it is very surprising to note that the trial Court related these two appellants Phool Singh and Kanta Devi to the demand of Rs. 20,000/- and thereafter exonerated them under section 304-B, IPC and convicted them under section 498-A, IPC. They have not even been related to any incident of harassment which is an essential to bring a case within the ambit of section 498-A, IPC, leave alone allege any specific incident with regard to them. Thus I find that no case is made out against the appellants Sh. Phool Singh; Smt. Kanta Devi (Crl. A. No. 280/2001) under section 498-A, IPC.