Sanju vs state of maharashtra

Excerpt:

The prosecution has not established cruelty within the meaning of explanation (a) of section 498-A of I.P.C. The evidence is not sufficient to establish cruelty of such nature or extent that Roopa will be compelled or driven to take the extreme step. The prosecution has further failed to establish cruelty within the meaning of explanation (b) of section 498-A of I.P.C. The evidence on the aspect of ill-treatment or harassment in order to coerce the relatives of the deceased to meet an unlawful demand is grossly inadequate. I, therefore, hold that the prosecution has not established that the deceased Roopa was subjected to cruelty within the meaning of explanation (a) and (b) of section 498-A of I.P.C.

Judgements Cited:

1.Bhairaon Singh vs. State of Madhya Pradesh, 2010 ALL SCR 213,

2.Sharad Birdhichand Sarda Vs. State of Maharashtra

3.Shiv Kumar v. State of U.P.{1966 Cri.App.R (SC) 281}

4.Girdhar Shankar Tawade Vs. State of Maharashtra (2002) 5 SCC 177,

 

Sanju S/O Atmaram Patil vs State Of Maharashtra on 14 September, 2017
Bench: R. B. Deo
 apeal271.02.J.odt                         1




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH, NAGPUR

                     CRIMINAL APPEAL NO.271 OF 2002

          Sanju s/o Atmaram Patil,
          Aged about 38 years, 
          R/o Mata Nagar Chowk,
          Ward No.24, Chandrapur.                   ....... APPELLANT

                                   ...V E R S U S...

          State of Maharashtra,
          through Police Station Officer,
          City Police Station, 
          Chandrapur.                               ....... RESPONDENT
 -------------------------------------------------------------------------------------------
          Shri R.P. Joshi, Advocate for Appellant.
          Shri A.V. Palshikar, APP for Respondent.
 -------------------------------------------------------------------------------------------

 CORAM:  ROHIT B. DEO, J. 

DATE OF RESERVING THE JUDGMENT : 29.08.2017 DATE OF PRONOUNCING THE JUDGMENT : 14.09.2017 1] Challenge is to the judgment and order dated 26.04.2002 in Sessions Case 97/1994 by the Additional Sessions Judge, Chandrapur, by and under which, appellant is convicted for the offence punishable under section 498-A of I.P.C. and is sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs.500/- and is further convicted for the offence punishable under section 306 of I.P.C. and is sentenced to suffer rigorous imprisonment for two years and to pay fine of Rs.1000/-. The appellant is acquitted of offence punishable under section 304-B of I.P.C.

2] The case of the prosecution, as is unfolded during the trial, is that the marriage of accused and the deceased Roopa was solemnized sometime in 1991. Roopa committed suicide on 04.04.1994. The appellant along with accused 2 and 3 (father and mother of the accused) subjected the deceased Roopa to cruelty within the meaning of explanation (a) and (b) of section 498-A of I.P.C. and thus committed offence punishable under section 304-B, 306 and498-A read with section 34 of I.P.C. The father of the accused died during the pendency of the trial and the mother is acquitted of all charges.

3] The prosecution case is that the accused subjected the deceased Roopa to ill-treatment with a view to coerce Roopa to fulfill unlawful demand of cot and Scooter and the cruel treatment which was meted out was sufficient to drive deceased Roopa to commit suicide. The prosecution examined four witnesses to bring home the charge. P.W.1 Chandrashekhar Shridhar Moon is the brother of the deceased and the informant, P.W.2 Tulsabai Shridhar Moon is the mother of the deceased, P.W.3 Meenabai Chandrabhan Khadse is the sister of the deceased and P.W.4 Pramila Krishnaji Sakdeo is family friend of the deceased. The spot panchnama is exhibited on admission (Exh.39). 4] The submission of the learned counsel for the accused Shri R.P. Joshi is two fold. He would submit, firstly, that the prosecution has failed to prove that the death is suicidal. The contention is that accidental death is not ruled out. The learned counsel contends that the mother of the deceased (P.W.2) has admitted that the deceased used to leave the house early in the morning to collect the cow dung. He invites my attention to the spot panchnama which records that a steel container is found near the dead body. The learned counsel for the accused would submit that since the possibility of accidental death cannot be excluded, the finding that the deceased committed suicide is unsustainable.

5] The second submission of the learned counsel for the accused is that the prosecution has miserably failed to prove that the deceased was subjected to cruelty. The learned counsel would urge that the evidence of P.W.1, P.W.2, P.W.3 and P.W.4 is not only sketchy and vague, there are too many inter se discrepancies and contradictions in the evidence to inspire confidence. The learned counsel contends that the evidence of P.W.2 in particular is replete with statements which are proved to be omissions. The omissions are material and significant and partake the character of contradiction. The learned counsel would submit that it would be unsafe to be a conviction on evidence which is not consistent and therefore, not confidence inspiring. 6] The learned counsel would also submit, relying on the judgment of the Hon’ble Supreme Court in Bhairaon Singh vs. State of Madhya Pradesh, 2010 ALL SCR 213, that if the death of Roopa is held not to be suicidal, then the entire evidence which is based on what is narrated by the deceased to her family members, is rendered inadmissible. The learned counsel would urge that cause of death or the circumstances leading to death is not in issue in trial for charge under section 498-A of I.P.C. The learned counsel would rely on the following observations in Bhairaon Singh vs. State of Madhya Pradesh, 2010 ALL SCR 213:

“4. The legal position relating to the admissibility of evidence under section 32(1) has come up for consideration before this court time and again. It is not necessary to multiply the authorities in this regard as reference to a three judge Bench decision of this court in Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984)4 SCC 116:[2009 ALL SCR(O.C.C.) 281], will suffice. Regarding the application of rule under section 32(1) Evidence Act, Fazal Ali, J. culled out the legal position as follows:

“(1) Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to the death. In this respect as indicated above, the Indian Evidence Act, in view of the peculiar condition of our society annd the diverse nature and character of our people, has thought it necessary to widen the sphere of Section 32 to avoid injustice”.

“(2)The test of proximity cannot be too literally construed and practically reduced to a cut and dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be admissible under Section 32”.

(3) The second part of clause (1) of Section 32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to orgiven an opportunity of being cross examined by the accused, would be valueless because the place of cross examination is taken by the solemnity and sanctity and sanctity of oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring.

(4) It may be important to note that Section 32 does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide.

(5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of Section 32 and, therefore, admissible. The distance of time alone in such cases would not make the statement irrelevant.”

5. Varadarajan, J. on the other hand referred to the legal position stated by Woodroffe and Amir Ali in their Law of Evidence,(fourteenth edition) and Ratanlal Dhirajlal in their Law of Evidence (1982 Reprint). This is how A. Varadarajan, J. dealt with the admissibility of evidence under Section 32(1):

“….The position of law relating to the admissibility of evidence under Section 32(1)is well settled. It is, therefore, not necessary to refer in detail to the decisions of this Court or of the Privy Council or our High Courts. It would suffice to extract what the learned authors Woodroffe and Amir Ali have stated in their Law of Evidence, Fourteenth Edn. and Ratanlal and Dhirajlal in their Law of Evidence (1982 Reprint). Those propositions are based mostly on decisions of courts for which reference has been given at the end. They are these: Woodroffe and Amir Ali’s Law of Evidence, Fourteenth Edn.:

“Page 937: Hearsay is excluded because it is considered not sufficiently trustworthy. It is rejected because it lacks the sanction of the test applied to admissible evidence, namely, the oath and cross- examination. But where there are special circumstances which give a guarantee of trustworthiness to the testimony, it is admitted even though it comes from a second-hand source.

Page 941: What is relevant and admissible under clause (1) of this section (Section 32) is the statement actually made by the deceased as to the cause of his death or of the circumstances of the transaction which resulted in his death.

Page 945-946: A statement must be as to the cause of the declarant’s death or as to any of the circumstances of the transaction which resulted in his death i.e. the cause and circumstances of the death and not previous or subsequent transaction, such independent transactions being excluded as not falling within the principle of necessity on which such evidence is received. When a person is not proved to have died as a result of injuries received in the incident in question, his statement cannot be said to be a statement as to the cause of his death or as to any of the circumstances which resulted in his death. (AIR 1964 SC 900.) Where there is nothing to show that the injury to which a statement in the dying declaration relates was the cause of the injured person’s death or that the circumstances under which it was received resulted in his death, the statement is not admissible under this clause. (ILR 1901 25 Bom.45.) Page 947: Circumstances of the transaction resulting in his death: This clause refers to two kinds of statements: (i) when the statement is made by a person as to the cause of his death, or (ii) when the statement is made by a person as to any of the circumstances of the transaction which resulted in his death. The words `resulted in his death’ do not mean `caused his death’. The expression `any of the circumstances of the transaction which resulted in his death’ is wider in scope than the expression `the cause of his death’. The declarant need not actually have been apprehending death. (AIR 1964 MP 30.) Page 947: The expression `circumstances of the transaction’ occurring in Section 32, clause (1) has been a source of perplexity to courts faced with the question as to what matters are admissible within the meaning of the expression. The decision of Their Lordships of the Privy Council in Pakala Narayana Swami v. Emperor (AIR 1939 PC 47) sets the limits of the matters that could legitimately be brought within the purview of that expression. Lord Atkin, who delivered the judgment of the Board, has, however, made it abundantly clear that, except in special circumstances no circumstance could be a circumstance of the transaction if it is not confined to either the time actually occupied by the transaction resulting in death or the scene in which the actual transaction resulting in death took place. The special circumstance permitted to transgress the time factor is, for example, a case of prolonged poisoning, while the special circumstance permitted to transgress the distance factor is, for example, a case of decoying with intent to murder…. But the circumstances must be circumstances of the transaction and they must have some proximate relation to the actual occurrence.

Page 948: `Circumstances of the transaction’ is a phrase no doubt that conveys some limitations. It is not as broad as the analogous use in `circumstantial evidence’ which includes the evidence of all relevant factors. It is on the other hand narrower than `res gestae’. Circumstances must have some proximate relation to the actual occurrence, though, as for instance, in the case of prolonged poisoning they may be related to dates at a considerable distance from the date of actual fatal dose.

Page 948: The Supreme Court in the case of Shiv Kumar v. State of U.P.{1966 Cri.App.R (SC) 281} has made similar observations that the circumstances must have some proximate relation to the actual occurrence, and that general expressions indicating fear or suspicion, whether of a particular individual or otherwise and not directly to the occasion of death will not be admissible.

Page 949: The clause does not permit the reception in evidence of all such statements of a dead person as may relate to matters having a bearing howsoever remote on the cause or the circumstances of his death. It is confined to only such statements as relate to matters so closely connected with the events which resulted in his death that may be said to relate to circumstances of the transaction which resulted in his death. [(1939) 66 IA 66.] `Circumstances of the transaction which resulted in his death’ means only such facts or series of facts which have a direct or organic relation to death. Hence statement made by the deceased long before the incident of murder is not admissible.[1974 Cri LJ 1200 (MP).] Law of Evidence by Ratanlal and Dhirajlal (1982 Reprint) Page 94: Circumstances of the transaction: General expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death are not admissible. [(1939) 66 IA 66] (18 Part 234.) Page 95: Circumstances must have some proximate relation to the actual occurrence and must be of the transaction which resulted in the death of the declarant. The condition of the admissibility of the evidence is that the cause of the declarant’s death comes into question. It is not necessary that the statement must be made after the transaction has taken place or that the person making it must be near death or that the `circumstance’ can only include the acts done when and where the death was caused….

Dying declarations are admissible under this clause.”

“10. The only evidence to bring home charge under Section 498A, IPC, is that of PW-4 and PW-5. In their deposition PW-4 and PW-5 stated that their sister told them that accused was torturing her as he wanted that her brothers arrange a job for him or the house at Ganj Basoda is given to him or a cash of Rs.1 lac is given to enable him to do some business. They deposed that as and when their sister come to their house, she would tell them that accused used to insert cloth in her mouth and give beatings for dowry. The trial court as well as the High Court relied on the evidence of PW-4 and PW-5 and held that charge under Section 498A, IPC, against the accused was proved. Apart from the statement attributed to the deceased, none of the witnesses had spoken anything which they had seen directly insofar as torture and harassment to Ranjana Rani @ Raj Kumari was concerned”.

“11. The moot question is: whether the statements attributed to the deceased could be used as evidence for entering upon a finding that the accused subjected Ranjana Rani @ Raj Kumari to cruelty as contemplated under Section 498A, IPC. In our considered view, the evidence of PW-4 and PW-5 about what the deceased Ranjana Rani @ Raj Kumari had told them against the accused about the torture and harassment is inadmissible under Section 32(1) of the Evidence Act and such evidence cannot be looked into for any purpose. Except Section 32(1) of the Indian Evidence Act, there is no other provision under which the statement of a dead person can be looked into in evidence”.

The statement of a dead person is admissible in law if the statement is as to the cause of death or as to any of the circumstance of the transactions which resulted in her death, in a case in which the cause of death comes into question. What has been deposed by PW-4 and PW-5 has no connection with any circumstance of transaction which resulted in her death. The death of Smt. Ranjana Rani @ Raj Kumari was neither homicidal nor suicidal; it was accidental. Since for an offence under Section 498A simpliciter, the question of death is not and cannot be an issue for consideration, we are afraid the evidence of PW-4 and PW-5 is hardly an evidence in law to establish such offence. In that situation Section 32(1) of the Evidence Act does not get attracted”.

“12. We are fortified in our view by the decision of this Court in Inder Pal vs. State of M.P2. (2001) 10 SCC 736, wherein this Court considered the matter thus:

“4. We will consider at first the contention as to whether there is any evidence against the appellant which can be used against him for entering upon a finding that he subjected Damyanti to cruelty as contemplated in Section 498-A IPC. PW 1 father of the deceased and PW 8 mother of the deceased have stated that Damyanti had complained to them of her plight in the house of her husband and particularly about the conduct of the appellant. PW 4 sister of the deceased and PW 5 a relative of the deceased have also spoken more or less on the same line. Exhibit P-7 and Exhibit P-8 are letters said to have been written by Damyanti. In those two letters reference has been made to her life in the house of her in-laws and in one of the letters she said that her husband had subjected her to beating.

5. Apart from the statement attributed to the deceased none of the witnesses had spoken of anything which they had seen directly. The question is whether the statements attributed to the deceased could be used as evidence in this case including the contents of Exhibits P-7 and P-8 (letters).

6. Before deciding that question we have to point out that the High Court came to a conclusion that the allegation that she committed suicide was not substantiated. A dying declaration was recorded by the Executive Magistrate in which the deceased had stated that she got burns accidentally from a stove. If that be so, death could not be the result of either any harassment or any cruelty which she was subjected to. In this context we may point out that the State has not challenged the finding of the High Court that death of Damyanti was not due to commission of suicide”.

7. Unless the statement of a dead person would fall within the purview of Section 32(1) of the Indian Evidence Act there is no other provision under which the same can be admitted in evidence. In order to make the statement of a dead person admissible in law (written or verbal) the statement must be as to the cause of her death or as to any of the circumstances of the transactions which resulted in her death, in cases in which the cause of death comes into question. By no stretch of imagination can the statements of Damyanti contained in Exhibit P-7 or Exhibit P-8 and those quoted by the witnesses be connected with any circumstance of the transaction which resulted in her death. Even that apart, when we are dealing with an offence under Section 498-A IPC disjuncted from the offence under Section 306, IPC the question of her death is not an issue for consideration and on that premise also Section 32(1) of the Evidence Act will stand at bay so far as these materials are concerned.”

7] Per contra, Shri A.V. Palshikar the learned A.P.P. would submit that the prosecution has proved the offence under section 498-A and section 306 of I.P.C. beyond reasonable doubt. Shri Palshikar, the learned A.P.P. submits that the judgment impugned does not suffer from any infirmity, on facts or in law. 8] I am inclined to accept the submission of the learned counsel for the accused, that the possibility of accidental death cannot be totally excluded. The evidence would suggest that the deceased used to go out to collect cow dung in the morning. The spot panchnama records the presence of steel container near the body of the deceased. The prosecution has failed to prove, to which aspect I shall advert in some detail in the judgment, that the alleged cruelty was of such nature and extent as would compel or push Roopa to end her life. On a holistic appreciation of the evidence on record it would be very hazardous to totally exclude the possibility of the death being accidental and not suicidal. 9] Shri R.P. Joshi the learned counsel for the accused is right in contending that if the death is not suicidal or homicidal and is accidental, then the only charge which survives is of an offence punishable under section 498-A of I.P.C. and the entire evidence which is founded on the narration by the deceased Roopa to the witnesses is hearsay and cannot be treated as admissible under section 32 (1), since the cause of death or the circumstances leading to death is not an issue in trial for offence under section 498-A of I.P.C. The learned counsel would further contend that even if the evidence is assumed to be admissible, the evidence is grossly insufficient to bring home charge under section 498-A of I.P.C.

10] It would be useful to consider the scope and ambit of section 498-A of I.P.C. which read thus:

498-A. Husband or relative of husband of a woman subjecting her to cruelty.– Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation.– For the purpose of this section, “cruelty” means

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

11] The ingredients of section 498-A of I.P.C. are articulated in Girdhar Shankar Tawade Vs. State of Maharashtra (2002) 5 SCC 177, thus:

“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 legislature: whereas Explanation (a) involves three specific situations viz.

(I) to drive the woman to commit suicide or (ii) to cause grave injury or (iii) danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in Explanation (b) there is absence of physical injury but the legislature thought it fit to include only coercive harassment which obviously as the legislative intent expressed is equally heinous to match the physical injury; whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embrace the attributes of “cruelty” in terms of Section 498-A.”

“17. As regards the core issue as to whether charges under Sections 306 and 498-Aof the Indian Penal Code are independent of each other and acquittal of one does not lead to acquittal on the other, as noticed earlier, there appears to be a long catena of cases in affirmation thereto and as such further dilation is not necessary neither are we inclined to do so, but in order to justify a conviction under the later provision there must be available on record some material and cogent evidence. Presently, we have on record two inconsistent versions of the brother and the cousin, as such no credence can be attributed thereupon

– the documentary evidence (namely, those three letters), in our view, falls short of the requirement of the statute: even on an assumption of the fact that there is no contradiction in the oral testimony available on record, the cousin goes to the unfortunate girl’s in laws’ place and requests the husband to treat her well – at best some torture and a request to treat her well. This by itself would not bring home the charge under Section 498-A. Demand for dowry has not seen the light of day”.

12] Cruelty for the purpose of section 498-A of I..P.C is statutorily defined. Cruelty which may be constitute a matrimonial offence may not necessarily be the cruelty envisaged under explanation (a)(b) to section 498-A of I.P.C. The evidence on record must be tested on the anvil of the statutory definition of cruelty and the articulation of the Hon’ble Supreme Court on the scope and ambit of section 498-A of I.P.C.

P.W.1 Chandrashekhar states that accused used to beat Roopa and all the accused used to tell Roopa that her brother (P.W.1) did not give anything in marriage. P.W.1 states that he came to know of the said ill-treatment from Roopa during her visit to parental house. P.W.1 does not depose as to any particular demand much less cot, two-wheeler and the like. During the cross- examination P.W.1 admits that both accused and his late father (accused 2) were serving in Western Coalfields Ltd. and have a large house of their own. He admits that the deceased Roopa and accused resided separately from the parents of the accused in a rental house at Bengali Camp for 2 to 4 months. P.W.1 admits that during that time both the deceased and the accused used to visit Roopa’s parental house. P.W.1 further admits that Roopa and accused started residing at the house of the father of the accused at the behest of the father of the accused (deceased accused 2). P.W.2 Tulsabai states that after marriage Roopa started residing with the accused at Chandrapur. The residence of the accused, who was residing jointly, was in the same locality and the houses of P.W.2 and the accused were separated only by road. 13] P.W.2 states that Roopa was treated well for six months or thereabout. She states that after six months, accused started making demand of two-wheeler and used to beat Roopa by belt, fists and kick. She states that the deceased used to narrate the ill-treatment to P.W.2 as and when the deceased Roopa visited parental house. In paragraph 2 of the examination-in-chief, P.W.2 states that she lodged report with City Police Station, Chandrapur. This report is however, not produced on record. In paragraph 3 of the examination-in-chief, P.W.2 states that when accused stayed at the residence of P.W.2, post delivery, he used to beat Roopa and had taken the new born baby with him to his house. She states that thereafter Roopa went to stay with the accused. P.W.2 states that the accused poured kerosene on the person of Roopa and according to P.W.2 she came to know about the incident from the landlady of the accused. P.W.2 further states that the accused was asking Roopa to jump into a well or set herself afire. The testimony of P.W.2 is not at all reliable or trustworthy. The statement that the accused used to beat Roopa by belt, fists and kick blows is an omission. The statement that according to Roopa she was not allowed to take her son with her is also an omission. The statement that the accused sought divorce is again an omission. The statement that accused threatened Roopa that she should not return home or else she will have to face serious consequence is an omission. The statement that the accused took the newly born child from the custody of Roopa is again an omission. The statement that accused poured kerosene oil on the person of the deceased is also an omission. For reasons inexplicable, neither the Investigating Officer nor scribe of the 161 statement is examined by the prosecution. P.W.3 is Meenabai the sister of the deceased who speaks of ill-treatment for meting the demand of Scooter and other articles.

14] P.W.4 Pramila who claims to be a family friend, states that the accused was giving ill-treatment to deceased Roopa which Roopa used to disclose to P.W.4. She states that Roopa used to say that the accused beat and harassed her. P.W.4 further states that according to Roopa the accused are demanding dowry and used to threaten that Roopa will be killed. The witness is not in a position to disclose the date, time or month of the alleged conversation with Roopa. The statement that Roopa told P.W.4 that the accused were making demand of dowry and threatening to kill Roopa is an omission to the extent of demand of dowry. 15] The learned Sessions Judge has rightly recorded a finding that the prosecution has not proved demand of dowry. It would be necessary to consider the evidence in order to ascertain whether cruelty within the meaning of explanation (a) or (b) of section 498-A of I.P.C. is established. P.W.1 does not make any reference to any specific demand other than making a general assertion that the deceased used to be beaten up by the accused since P.W.1 did not give anything in marriage. The evidence of P.W.1 is too sketchy, vague and omnibus to assist the prosecution. P.W.2, on the other hand, has clearly engaged in exaggeration and improvement. Her evidence is absolutely inconsistent with the evidence of other witnesses. The report to which P.W.2 makes a reference is not produced on record. Most of the allegations are proved to be omission and the omissions are material and significant. The prosecution has not examined the scribe of 161 statements or Investigating Officer and it is for this reason that the omissions are not proved. It is axiomatic, that the accused has been seriously prejudiced by the failure of the prosecution to examine the scribe of 161 statements of the I.O. P.W.3 Meenabai states that Roopa was treated well for initial period of 2 to 3 months and then was ill-treated by the accused who demanded the Scooter and other articles. The solitary statement in the examination-in-chief does not take the case of the prosecution any further. P.W.3 gives no details of the demand nor of the alleged ill-treatment.

16] The evidence of P.W.4 is not confidence inspiring. Neither P.W.1, brother nor P.W.3 (sister) speak about the accused giving life threat to Roopa. The reference to such life threat is also absent in the evidence of P.W.2 (mother), although P.W.2 states that the accused used to tell Roopa to commit suicide. It appears to be absolutely unnatural that Roopa would not make such a disclosure to her family members. The prosecution has not brought on record any special relationship or bond between P.W.4 and Roopa. P.W.4 is a friend of the family of the deceased. However, there is absolutely no reason or any circumstance demonstrated on record as to why the deceased would firstly, narrate or talk about her personal problems with P.W.4 and then why would the deceased reveal that the accused threatened to kill her only to P.W.4 and not to her brother, mother or sister. P.W.4 is certainly not a reliable witness.

17] The prosecution has not established cruelty within the meaning of explanation (a) of section 498-A of I.P.C. The evidence is not sufficient to establish cruelty of such nature or extent that Roopa will be compelled or driven to take the extreme step. The prosecution has further failed to establish cruelty within the meaning of explanation (b) of section 498-A of I.P.C. The evidence on the aspect of ill-treatment or harassment in order to coerce the relatives of the deceased to meet an unlawful demand is grossly inadequate. I, therefore, hold that the prosecution has not established that the deceased Roopa was subjected to cruelty within the meaning of explanation (a) and (b) of section 498-A of I.P.C.

18] In conclusion, the prosecution has not conclusively excluded the possibility of accidental death. That apart, the evidence on record is not sufficient to bring home charge either under section 306 of I.P.C. or under section 498-A of I.P.C. 19] I would allow the appeal and set aside the judgment impugned.

20] The accused is acquitted of offence punishable under section 498-A of I.P.C.

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