JUDGMENT Venkataraman, J.
1. On the basis of a chargesheet filed by the C.O.D., the learned Sessions Judge had framed charges under Sections 498A, 306 and 304B of the I.P.C. against the husband, father-in-law and mother-in-law of one Shashikala who died on 7-11-1987 by committing suicide in the house of the accused persons. The first accused is the husband, the second and third accused are the father-in-law and mother-in-law of deceased Shashikala.
2. The prosecution case in brief is to the following effect. The deceased was the daughter of one T. B. Mruthyunjaya who was working as an executive engineer in Madhya Pradesh. A proposal for the marriage of Shashikala with the first accused, who is a doctor, came from the aunt of the deceased. In about December, 1982 the girl was taken to the house of the accused and at that time A2 and A3 demanded dowry of Rs. 25,000/- as also gold ornaments of 45 sovereign and other household articles. They also wanted the marriage to be performed at the cost of the bride’s father. The parents of the deceased after negotiations agreed to give the dowry sought for by A2 and A3. By the end of January, 1983 betrothal was performed in the house of Bride’s father at Bangalore and at that time bride’s father paid Rs. 25,000/- in cash to A2. The marriage of the deceased with A-1 was performed on 6th May, 1983 at Bangalore. At the time of the marriage gold ornaments weighing 45 sovereign, silver vessels, household articles, furniture, etc. were given to A1 and A2. Thereafter the deceased went to live with A1 who is a registered medical practitioner at Tiptur. The newly married couple lived happily for about 3 months. Thereafter the deceased was complaining to P.W. 1, her elder brother, as well as to P.W. 2, Shanthamma, her mother, that the accused were not satisfied with the dowry given and that they were ill-treating her. She used to complain that A1 was ill-treating her saying that if he had married some other doctor girl she would have got sufficient dowry. Though the parents of the deceased requested the accused to lookafter the deceased well the attitude of the accused had not changed. The first accused wanted to shift to Bangalore and the deceased told her parents and P.W. 1 that A1 wanted a portion of their house in Bangalore. As that house was not big P.Ws. 1 and 2 did not agree. When the father of the deceased died in October, 1985 the accused was asking the deceased to get money from her parental house as they must have received money after the death of her father. On account of the ill-treatment that was being given by the accused P.W. 1 along with his other relatives approached P.W. 16, Chandrashekariah, who was the sitting M.L.A. from Tiptur to advice the accused to treat the deceased well. P.W. 16 and P.W. 1 and others went to the house of the accused and P.W. 16 advised the accused to look after his wife well. After that Panchayath Shashikala who was staying at Bangalore was taken back to the house of the accused. The deceased had once taken poison and at that time A1 had got her treated in the Government hospital by giving false name. Inspite of the Panchayat first accused continued ill-treating the deceased. On 6-11-1987 P.W. 2 received a telephone call from the deceased and she informed P.W. 2 that her harassment and ill-treatment had increased and that she i.e. P.W. 2 must send some one to take her back. Accordingly P.W. 2 sent P.W. 1 to Tiptur to the house of the accused. The deceased told P.W. 1 that she cannot tolerate the ill-treatment and harassment by the accused. The first accused’s brother told P.W. 1 that they would advise A1 to look after the deceased well and as such P.W. 1 came back. On 7-11-1987 morning Shashikala committed suicide by hanging herself from a beam in the ceiling. At about 2.15 p.m. one Nagaraj of Tiptur had telephoned the sister of the deceased about the deceased being serious. Subsequently P.W. 1 through his friend got the information that Shashikala had died. Thereafter P.W. 1 and P.W. 2 along with others went to Tiptur. Some persons there were talking that the deceased had left a chit and that it was with A1. Though A1 first stated that he did not know anything about it when that matter was brought to the notice of the police who arrived there at their instance. A1 produced a chit, Ex. P3, from his pocket. That chit was written in Hindi and it was in the hand writing of the deceased. As that chit referred to a diary in which she had written as to went she wanted to die, the police searched the premises and found Ex. P4 diary which contained certain writing in the hand writing of the deceased. The same was seized by the police. Thereafter P.W. 1 lodged a complaint. After investigation the police filed the charge sheet.
3. The accused have admitted the marriage of Shashikala with A1, The rest of the prosecution case about demand or acceptance of dowry or the ill-treatment of the deceased has been denied. The fact that the deceased committed suicide had also been admitted.
4. The learned Session Judge, after appreciation of the evidence, has held that charges under Sections 306 and 304B, IPC had not been established. He has therefore acquitted the accused of those charges. However, he has convicted all the accused of the charge under Section 498-A, I.P.C. and sentenced them to undergo rigorous imprisonment for a period of 3 years and to pay a fine of Rs. 1,000/- each in default to undergo further rigorous imprisonment for 9 months. The firm accused has also been convicted of the offences under Section 202, I.P.C. and sentenced to undergo rigorous imprisonment for 6 months and to pay a fine of Rs. 500/-, in default to undergo rigorous imprisonment for 45 days.
5. The State has filed Criminal Appeal 357/92 challenging the acquittal of the accused of the offences under Sections 306 and 304B, I.P.C. The accused have filed the appeal in Criminal Appeal No. 222/92 challenging their conviction.
6. The learned Government Pleader has contended that the evidence on record shows that the accused were ill-treating the deceased on the ground that the dowry paid was insufficient and something more had to be given, that the learned Sessions Judge was not justified in not accepting the evidence of close relatives in this regard. He further contended that when once the learned Sessions Judge found that the accused had treated the deceased with cruelty as to make them liable for punishment under Section 498A, I.P.C. he ought to have held that the charge under Section 306, I.P.C. had also been proved in view of the undisputed fact that the death had taken place within 7 years from the date of the marriage and in view of the presumption under Section 113A of the Indian Evidence Act.
6(a). The learned counsel for the respondents while supporting the finding of the learned Sessions Judge that the prosecution case that the accused were illtreating the deceased in connection with or on account of the dowry had not been established, challenged the finding of the trial Court that the accused had treated the deceased with such cruelty as to drive an ordinary woman to commit suicide. He referred to the entries in the diary made by the deceased herself to point out that this was a case where the deceased on account of mental disparity between herself and her husband felt frustrated with life and decided to commit suicide and that there was absolutely nothing in that diary to show that A1 treated her with any cruelty. He further pointed out that there was absolutely nothing in the diary to show that A2 and A3 had at any time ill-treated her. He submitted that the deceased appeared to be hypersensitive and she felt unhappy because some of her dreams and aspirations could not be realised and she appeared to have been mentally upset and that she had committed suicide not on account of any cruel treatment by the accused but due to her mental weakness. He further contended that Ex. P4 cannot be made the sole basis to hold that cruelty is proved. He also pointed out the evidence of P.W. 16 to contend that the deceased felt agitated on trivial matters.
7. Now it is not disputed that Shashikala committed suicide within 7 years from the date of her marriage. Though some evidence has been adduced with regard to payment of dowry of Rs. 25,000/- and 45 sovereign of gold ornaments and acceptance of the same prior to and at the time of the marriage on 6-5-1983, the accused are not prosecuted for offences under Sections 3 and 4 of the Dowry Prohibition Act obviously because even before the amendment of Section 7 of the said Act the complaint for those offences had become barred by time under old Section 7 of the Act. Even before the trial Court the prosecutor who contended that a charge under Section 304B also should be framed, though the chargesheet had been filed for the offences only under Sections 498A and 306, I.P.C. had not contended that any charge under Section 3 or 4 of the Dowry Prohibition Act had to be framed. Even here the learned Government Pleader did not dispute that the period of limitation for filing a complaint in respect of those offences had expired even before the amendment of Section 7and as such charges under those sections were not preferred. As such it is not necessary to consider the evidence in that regard in great detail. The trial Court has also not gone into that part of the evidence.
8. The main points that arise for determination in these appeals are :
(1) Whether the prosecution has established that the accused subjected Shashikala to such cruelty or harassment as is referred to in Section 498A, I.P.C. for or in connection with any demand for dowry.
9 Before we consider the evidence and the rival contentions it would be better to refer to and analyse the legal provisions touching the offences charged against the accused.
10. Section 498A, I.P.C. makes the husband of a woman or his relative liable for punishment if he or she subjects the woman to cruelty. What is cruelty for purpose of Section 498A is explained in the explanation as hereunder :
“(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.”
To attract clause (a) the conduct must be wilful and such conduct must be of a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life of the woman. “Wilful conduct” necessarily implies that the conduct is deliberate or intentional. That conduct must be sufficient to drive an ordinary woman in Indian set up to commit suicide or to cause grave injury or danger to life of the woman. In Gurbachan Singh v. Satpal Singh(1990 SCC (Crl.) 151 : (1990 Cri LJ 562) the Supreme Court has held that constant dowry demands from a newly wedded wife and consequent taunts, ill-treatment, cruel behaviour and torture and insinuation that she was carrying an illegitimate child are the grave and serious provocotions enough for an ordinary woman in the Indian set up to commit suicide. This shows that the cruelty must be such as to provocate an ordinary woman in the Indian set up to commit suicide and that the cruelty had to be judged from that angle and not from the angle of a woman who is hypersentive or is depressed due to various other factors and has got a suicidal tendency.
11. In Veerulu v. State of Andhra Pradesh (sic) the Andhra Pradesh High Court has held that the term “wilful conduct” is explicit in character and reflects the intention of the legislature that mens rea is an essential ingrediant of the offence.
12. To attract clause (b) of the explanation to Section 498A, there must be harassment with a view to coerce her or her relative to meet any unlawful demand for property or valuable security or on account of refusal to meet such demand. In New Webster’s Dictionary the meaning of the word “harass” is given as “harry, ex, to disturb or bother continuously with worries, cares or the like, to pester”. As such to make out harassment there must be evidence to show that the woman was pestered or harried in connection with the demand for dowry or on account of its refusal.
13. Section 306 makes a person who abets the commission of suicide punishable. If the person committing suicide is a married woman whose marriage had taken place within 7 years prior to her death then Section 113A of the Evidence Act provides for a presumption as hereunder :
“113A. Presumption as to abetment of suicide by a married woman – When the question is whether the commission of suicide by a woman had ben 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.
Explanation. – For the purposes of this section, ‘cruelty’ shall have the same meaning as in Section 498A of the Indian Penal Code.”
To attract the above presumption the woman should have committed suicide within 7 years of her marriage and the husband or his relative who is charged must be shown to have subjected her to such cruelty as is mentioned in S. 498A.
14. Under Section 304B, I.P.C. a new offence known as ‘dowry death’ has been constituted. To constitute this offence the following ingredients must be established, (1) The death of woman must have been caused by burns or bodily injury or occurred otherwise than under normal circumstances.
(2) Death must have taken place within 7 years of her marriage.
(3) Soon before her death she must have been subjected to cruelty or harassment by her husband or relative of her husband.
(4) Such cruelty or harassment must have been for or in connection with any demand for dowry as defined under Section 2 of the Dowry Prohibition Act.
15. In Shanthi v. State of Haryana (1991 SCC (Crl.) 191) : (1991 Cri LJ 1713) it has been held that suicide is covered under the clause “death otherwise than under natural circumstances” appearing in Section 304B. It has further been held that cruelty for purpose of Section 304B has the same meaning as could be gathered from the Explanation to Section 498A.
16. Section 113B of the Indian Evidence Act makes provision for a presumption as to dowry death and it reads as hereunder :
“113-B. Presumption as to dowry death. – When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation. – For the purpose of this section, ‘dowry death’ shall have the same meaning as in Section 304B of Indian Penal Code (45 of 1860).”
To attract the presumption it must be established that soon before her death a woman had been subjected to cruelty or harassment in connection with any demand for dowry. If that fact is established then there would be scope for a presumption that death was dowry death even though there may not be any clear evidence regarding cause of death. If there is evidence regarding death by burns or other unnatural causes including suicide or bodily injuries within 7 years of marriage of the woman, then there is no presumption that she had been subjected to cruelty in connection with dowry by her husband or his relative. Cruelty for or in connection with dowry soon before her death will have to be established as a fact. In a case where death is shown to be of the type referred to in Section 304B, then there would not be any need to have recourse to the presumption, as cruelty of the type referred to in that Section will have to be proved even to attract the presumption. Another point to be noted is cruelty for or in connection with dowry must be shown ‘soon’ before the death. It is not sufficient if cruelty of the type referred to in the Section at some point of time much prior to the death is proved.
17. A girl after marriage goes to live with her husband and his people in a totally new atmosphere. There might be lot of change in the way of life to which she is used to and to the one in her husband’s place. Before a marriage can succeed there must be mental compatibility and mutual understanding and an attitude of give and take between the spouses and the close relatives of the husband. The marriage undergoes lot of stress and strain in the first few years. Emotions, sentiments and attitudes may make or mar a marriage. For various causes a married woman in Indian set up may find it difficult to continue the married life or to come out of it for social and other reasons and may in a weak moment decide to end her life. As such, law, while trying to strengthen the hands of the prosecution in cases of dowry death or abetment to suicide of a married woman within 7 years of marriage provided for some presumption to be drawn, has scrupulously not permitted any presumption to be drawn on the question of cruelty, which is one of the ingredients of the dowry death. Cruelty must be established as any other fact.
18. The Supreme Court in State of Punjab v. Iqbal Singh (1991 SCC (Crl.) 513) : (1991 Cri LJ 1897) has observed as hereunder with regard to the legislative intent in making provisions for presumption under Sections 113A and 113B :
“The legislative intent is clear to curb the menace of dowry death, etc., with a firm hand. We must keep in mind this legislative intent. It must be remembered that since crimes are generally committed in the privacy of residential homes and in secrecy, independent and direct evidence is not easy to get. That is why the legislature has by introducing Sections 113A and 113B in the Evidence Act tried to strengthen prosecution hands by permitting a presumption to be raised if certain foundational facts are established and the unfortunate event has taken place within seven years of marriage.”
19. The learned Government Pleader referred to the decision in Kundula Bala Subrahmanyam (1993 SCC (Crl.) 655) with regard to the role of Courts in dealing with cases of dowry death. The Supreme Court has observed as hereunder :
“The role of Courts, under the circumstances assumes greater importance and it is expected that the Courts would deal with such cases in a more realistic manner and not allow the criminals to escape on account of procedural technicalities or insignificant lacunae in the evidence as otherwise the criminals would receive encouragement and the victims of crime would be totally discouraged by the crime going unpunished. The Courts are expected to be sensitive in cases involving crime against woman.”
In State (Delhi Administration) v. Laxman Kumar the Supreme Court has expressed its agreement with the following opinion of the Delhi High Court :
“The Courts cannot allow an emotional and sentimental feeling to come into the judicial pronouncements. Once sentimental and emotional feelings are allowed to enter the judicial mind, the judge is bound to view the evidence with a bias and in that case, the conclusion may also be biased resulting in some cases in great injustice. The cases have to be decided strictly on evidence how so ever cruel or horrifying the crime may be. All possible chances of innocent man being convicted have to be ruled out.”
The Supreme Court has also noted that it cannot be gainsaid that the Court must proceed to discharge its duties uninfluenced by any extraneous considerations.
20. Bearing in mind the above legal position we have to consider the evidence on record to find out whether the charges against the accused have been established. The fact that Shashikala committed suicide within 7 years of her marriage is not disputed. We have to see whether the accused had subjected Shashikala soon before her death to such type of cruelty as to drive an ordinary woman to commit suicide and whether the cruelty ro harassment was for or in connection with dowry. If both facts are established then offence under Section 304Bmust be held to have been made out, as the deceased had committed suicide within 7 years of her marriage. If only cruelty of the type mentioned in Section 498A is proved without proving that such cruelty was for or in connection with dowry, then the presumption under Section 113A of the Evidence Act would be attracted and offence under Section 306, I.P.C. must be held to have been made out. The learned Sessions Judge having held that the offence under Section 498A, I.P.C. had been made out against the accused erred in holding that offence under Section 306, I.P.C. is not made out, without referring to the presumption under Section 113A of the Evidence Act.
21. Though there is some evidence that prior to the marriage A2 and A3 had demanded some dowry and had also received the same, there is no direct evidence of the accused actually demanding or desiring further dowry after the marriage. The evidence in this regard to only that of close relatives of the deceased who state that the deceased Shashikala used to tell them that the accused were not satisfied with what was given at the time of marriage. Even this evidence is vague as it does not disclose as to who among the accused actually expressed to dowry given was less. Neither P.W. 1, brother of the deceased, nor P.W. 2, the mother of the deceased, states that any of the accused had in their presence asked for anything by way of dowry or had expressed dissatisfaction with what was given. In fact their evidence would show that whatever was sought for by A2 and A3 when the marriage was finalised was given. As such the question of the accused expressing that the dowry given was less does not arise. P.W. 1 has stated in his evidence that deceased used to say that A1 was telling that if he had married a doctor girl he would have got sufficient dowry and more money, that his sister was telling that the accused were ill-treating and harassing her for dowry, that she also told that A1 wanted to shift to Bangalore and wanted a portion in their house and that they did not agree to it. He further states that after his father passed away in September 1985, in October the deceased told her mother that the accused were asking her to bring dowry out of the amount received on account of her father’s death.
22. P.W. 2, the mother of the deceased, has stated that that her daughter was telling them that A1 wanted to open a clinic in Bangalore and he wanted accommodation separately and that he was claiming a share in the house. She further states that when her husband retired in 1984 A1 was asking Shashikala to bring money out of retirement benefits to open a clinic or nursing home at Bangalore and also to provide a car. While according to P.W. 1 the deceased informed about the first accused wanting her to bring money out of the amount received by them on account of their father’s death. P.W. 2’s evidence is that after retirement of her husband A1 wanted money from the retirement benefits. Admittedly when her statement was recorded by the police at Tiptur P.W. 2 did not mention before the police about this demand of A1 conveyed through the deceased. She also states that the deceased was telling that A1 wanted to open a clinic at Bangalore and he wanted accommodation separately and as such he was claiming a share in the house. P.W. 2 also states that the deceased told her that the accused were teasing her stating that if A1 had married a doctor there would have been income from both and that she was not earning anything and was of no use.
23. P.W. 3, who is maternal uncle as well as the brother-in-law of the deceased, has stated that the deceased used to tell them that she was being ill-treated by the accused, on the ground of getting less dowry. P.W. 4, sister of the deceased, has also made a similar statement and she further stated that in November, 1983 she, her husband and others had gone to the house of the accused in her husband’s car that 10 days later the deceased informed her that the first accused was telling that her parents had given car to P.W. 4 and that she should go and ask that she should be given a car or money to buy a car.
24. P.W. 6, Maruthisha, who is the uncle of the deceased has stated that Shashikala had told him during his visit that she was being ill-treated by the accused for more dowry by comparing her to the other sisters.
25. It will be seen that the evidence about the deceased telling her mother and others about the accused complaining regarding the dowry given or about his wanting a share in the house to open a clinic or a car being given, pertains to the period before the deceased was left in the house of P.W. 2 in October 1985. What is the value to be given to the oral evidence of these witnesses, who are all close relatives of the deceased and who are naturally nurturing a grievance against the accused, as they think that the accused are responsible for the deceased committing suicide. In Sharad Birdhichand Sarda v. State of Maharashtra the Supreme Court has made the following remarks with regard to the assessment of the evidence of close relatives in such cases :
“Before discussing the evidence of the witnesses we might mention a few preliminary remarks against the background of which the oral statements are to be considered. All persons to whom the oral statements are said to have been made by Manju when she visited Beed for the last time, are close relatives and friends of the deceased. In view of the close relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that this is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer and, therefore, the Court has to examine such evidence with very great care and caution. Even if the witnesses were speaking a part of the truth or perhaps the whole of it, they would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may not or could not have been stated may be imagined to have been stated unconsciously by the witnesses in order to see that the offender is punished. This is human psychology and no one can help it.”
26. In the present case there is material to indicate that these witnesses are capable of exaggeration and making allegations which are not the truth. P.W. 1 in his evidence states that on 6-11-1987 when he went to Tiptur in pursuance of the telephone call made by the deceased Shashikala she started weeping and she told that she cannot tolerate the harassment by the accused that when he inquired A1 he abused him, that when he wanted to take Shashikala with him A1’s elder brother told him that he would advice A1 to look after Shashikala well and that he would take the responsibility and declined to send her with him. But in Ex. P2, the complaint lodged by him, P.W. 1 has clearly stated that when he went to Tiptur to the house of the accused at 9 p.m. and inquired with them both husband and wife told him that they were alright, that A1’s brother was also there and that he left that place at about 12 mid-night and reached Bangalore. This shows that the evidence that he has now given about the deceased telling him that she is unable to tolerate the ill-treatment and wanted him to take her, etc. is a subsequent improvement. P.W. 2 in her evidence asserts that at the time of the marriage the accused wanted gold ornaments to be given to A3 and not to Shashikala. But in her statement during investigation she has stated that the gold ornaments were required to be given to Shashikala. P.W. 3 states that at the time of the marriage his father-in-law gave 45 sovereign gold ornaments to the second accused. Admittedly he has stated before police that the gold ornaments were given to Shashikala. P.W. 4 states that her parents gave gold ornaments to A2 and A3; here again she admits that before police she stated that the ornaments were given to Shashikala. This shows that the witnesses for obvious reasons somehow want to implicate accused persons and they are prone to exaggerate things and distort facts. As such it would not be safe to rely entirely on their evidence about what the deceased told them with regard to the demands of A1. Admittedly the deceased has written many letters to her parents after marriage. In fact the prosecution has produced two letters Exs. P5 and P6 written by the deceased and P.W. 1 admits that in those letters the deceased has not written anything about the accused wanting any dowry or she being ill-treated in that connection. P.W. 1 has admitted that Shashikala had written letters to her father. According to him in those letters she had stated that she was ill-treated for the sake of dowry and that however they did not have those letters. Here again this witness is not telling the truth, can be made out from his statement during investigation as per Ex. D1(a) to the effect that because of fear of her husband and parents-in-law Shashikala had not written about her ill-treatment in her letters. This shows that though the deceased had written letters to her parents, at no time she had complained of her husband or the parents-in-law ill-treating her on account of or in connection with dowry.
27. Accused has produced the letters he had written to Shashikala when she was in ther parents house. They are marked as Exs. D4 to D7 and they have been written in the year 1984-85. They are inland letters bearing postal seal. In none of those letters A1 has suggested to the deceased to get anything from her father’s place nor has he complained of the dowry given to him being less.
28. It is the case of the prosecution that the deceased had been left in P.W. 2’s house in October 1985 and after the intervention of P.W. 16. Chandrashekariah, who was the local MLA at Tiptur, the accused agreed to take back the deceased and look after her. A Panchayat is stated to have been held in that connection. P.Ws. 1, 3 and 6 are stated to have approached P.W. 16 to intervene and advice the accused. The evidence of P.W. 16 shows that P.W. 1 and his relatives requested him to settle the dispute between these spouses. P.W. 16 does not state that P.Ws. 1, 3 and 6 informed him that the accused were ill-treating the deceased on account of or in connection with the dowry. If really the deceased was being ill-treated on account of or in connection with the dowry, certainly P.W. 16 would have been informed about the cause for the rift between the husband and wife.
29. Admittedly the deceased had written about certain incidents in her life and about the cause for her committing suicide in Ex. P4 diary. Nowhere in Ex. P4 the deceased has mentioned that after her marriage the accused or any of them was complaining that the dowry given was not sufficient or that any of them wanted her to bring any money or article from her parent’s house or that in that connection she was subjected to any ill-treatment. It will be later seen that the cause given by the deceased for the rift is quite different.
30. The learned Government Pleader pointed out that in one portion of Ex. P4 the deceased has mentioned that after marriage she realised that her husband likes and loves not herself but her money and that he had fascination not for her but for her money. This obviously has reference to the sum of Rs. 25,000/- which is stated to have been paid to A1 at the time of the marriage. In fact there is a reference to this in the Hindi writing as “muje diye gaye” which has been left out in the Kannada translation. But there is no reference to her husband demanding any share in the house of Bangalore or wanting her to get money from her parents for a car. In Ex. P3 the deceased has specifically mentioned that she recorded certain events in her life in the diary and she has asked her brother to read, if he feels like it. If really the accused were ill-treating or harassing her on account of or in connection with the dowry she would certainly not have failed to mention the same in that diary. Hence the learned Sessions Judge was right in not attaching much importance to the oral evidence of the close relatives of the decewased with regard to what the deceased is alleged to have told them. We agree with the finding of the trial Court that the offence under Section 304B has not been established.
31. The next point to be considered is whether the accused had subjected the deceased to such cruelty as would have driven an ordinary woman to commit suicide. P.W. 1 has tried to make it appear that within 3 or 4 months after the marriage the ill-treatment started and the relationship between A1 and the deceased was not good. But in Ex. P2, the complaint, he has specifically stated that “since two years the husband and wife were not in good relation”. This shows that from about 1985 the relationship between husband and wife had been strained. It is possible that even earlier there might have been some minor differences, but the relationship appears to have been strained very much from about October, 1985. Though P.Ws. 1 and 2 state that the deceased was complaining of ill-treatment, they have not stated as to what was the actual ill-treatment given by the accused and which accused actually did what. P.W. 2 has stated in his evidence that when the deceased was pregnant and she had come to their house to attend the marriage of her brother, A1 who had also come, did not attend the marriage and that on that night Shashikala came out from the bed room with the hue and cry and that on enquiry she told that A1 tried to throttle her. According to A1 he did not attend the marriage as the bridegroom who saw him did not invite him to the marriage and that his wife was upset in that regard and that later he requested his father-in-law to pardon him for not attending the marriage. Admittedly at that time P.W. 2 was living along with P.W. 3 who is also her brother and first son-in-law. P.W. 3 does not speak of any such incident in his evidence. Even P.W. 1 has not spoken about it. The evidence of P.Ws. 1 and 2 no doubt shows that on 6-11-1987 the deceased had made a trunk call to P.W. 2 and wanted her to send someone to bring her and that P.W. 1 accordingly went to the house of the accused. But when P.W. 1 went there both A1 and the deceased informed P.W. 1 that they were alright and P.W. 1 had to come back as disclosed in Ex. P2. It will be seen from the writings in the diary that the deceased must have been highly emotional and impulsive. There must have been some exchange of words between the deceased and some of the accused and she has immediately telephoned to her mother, but by the time P.W. 1 went there she appears to have cooled down. The prosecution has examined P.Ws. 8 and 10 to prove that there was some incident on the night of 5-11-1987. P.W. 8, Janardhana, who was a tenant in the portion of the house of the accused has stated that on the night of 5/6-11-1987 at about 9 or 9.15 p.m. he heard “voice in high tone” from the house of the accused, that one person was shouting and another was quarrelling and that he cannot tell whose voice it was. In his statement before police he has stated that he heard the people talking loudly in the house of the accused. P.W. 10 who along with her husband was living opposite to the house of the accused, has stated in her evidence that often A1 and Shashikala had quarrels but she does not know the reasons and that on 5-11-1987 she heard (shouting) of Shashikala. She admits that on 5th or 6th November, 1987 A2 and A3 were not present and even on 7th they were not present in the house. She states that she heard the hue and cry of Shashikala for about a minute and that on 6-11-1987 when she saw Shashikala, she did not talk to her under the impression that there was nothing important and they were alright.
32. The evidence of these two witnesses would show that on the night of 5-11-1987 there was some quarrel and it was Shashikala who was shouting. That quarrel took place only for one or two minutes and on the next day morning Shashikala was normal and P.W. 10 did not even think it necessary to inquire her about the cause for her shouting on the previous night. This evidence does not show that the first accused had done anything which could be considered as an act of cruelty. In fact the deceased has made an entry in the diary on 7-11-1987. There is no reference to any incident on the night of 5-11-1987.
33. The most important document on which the prosecution has relied is Ex. P4, diary. The learned counsel for the accused submitted that the writing in the diary would not be admissible as a dying declaration and that at any rate those writings do not disclose cruelty of the type referred to in Section 498-A, I.P.C. In Sharad Birdhichand Sarda’s case (1984 Cri LJ 1735) the Supreme Court dealing with the scope of Section 32(1) of the Indian Evidence Act has held as hereunder :
“(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 homicide or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to the death. In this respect the Evidence Act, in view of the peculiar conditions of our society and 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-dry formula or universal application so as to be confined in a strait jacket. 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 final 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 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 or given 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 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 relavant 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 tel-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.”
As such in view of the above decision it cannot be said that the writing made by the deceased in the diary are inadmissible. Some of the portions which indicate the cause for the differences between A1 and the deceased and as to what was the grievance of the deceased against A1 are as hereunder :
“Life has become a dried up tree, a kite let loose and a blank page. I am not useful for any work. No one can get benefit from me ….
I have become a riddle for myself. I do not mind if no one understands me – but if my husband himself does not understand me then what is the use of living ….. He never tried to understand what I am in reality.
I desired to be a skilled house wife, a good life partner and an ideal mother after marriage but I did not succeed in anything.
I am feeling that day by day I am moving farther from husband. I tried to know the reason but I failed. On account of this I used to get irritated. I used to get angry at my flower like daughter without any reason.
When my husband moved farther from me I felt humiliated and for that reason the abundant love I had for my husband converted into hatred. Now our vehicle of life started shaking. But I am pulling on out of fear of society. If one wheel of vehicle moves towards north and another wheel moves towards south what could be the condition of the vehicles. Similar is our position.
In the eyes of world we are husband and wife but in reality we are very far from that relationship.
My every dream is shattered into pieces. Possibly his heart has become a stone – definitely his heart has not melted …..
I do not remember the correct date the incident which took place in Oct. 1985 … He desired that I should go away once and not return at all any time. This way he started giving trouble mentally.
If I do this it is wrong if I do that it is wrong – listening to radio is wrong seeing TV or cinema is wrong. If I talk to anyone it is wrong, talking or writing in Hindi is wrong. All my talks appeared to be wrong to him ….. If I say something he would say unnecessary expenditure. To whom should I tell my mental agony when my husband is not with me, whom else can I consider as mine ….
Though I have understood him why has he not understood me. After marriage I have not spent a day without shedding tears. His special quality is that though he sees me shedding tears he behaves as he has not seen it. My tears may make him happy. He has not inquired about my health even one day. If I am happy he feels sad. He wants me to live in grief. He wants that I should sever my connections with all my relatives …..
If I say east he would say west. I do not know how God brought us having such opposte natures together. When I feel very sultry he feels chill. When my stomach is full he feels hungry. When there is such conflicting nature in us how can we become one …
We are mentally far away from each other …
After marriage none of my aspirations has been fulfilled. After marriage what I learnt was that my husband loved not me but my money (the money that was given to me). He had fascination not for me but for the money ….
I, who had not wept for 20 years, wept fully during the past 4 years but he did not desire to understand me even one day. In his opinion I and my daughter are unnecessary expenditure. He feels happy if I am humiliated and unhappy. But my life appears like a dark well. I am not seeing any way to come out of this. When he has gone so far away from me how can I continue to live ….
Now out talks are limited. If we talk it ends in quarrel. From his talks and conduct I feel that he definitely does not like me. Though for appearance we are husband and wife we are strangers to one another ….
After marriage I have realised that our desires and aspirations are completely different. I did not like the birth of Anu so early but he desired. I like the name ‘Anu’ very much but he did not like it. Whatever he likes I do not like ….
Day by day we are moving farther. Possibly he does not even like to see my face ….
I am feeling lonely in this life and I would like to go near Anna – possibly by going there I may be relieved from all these conflicts. Of late I do not like to live, eat or do anything. Just like eating and sleeping is necessary, for me weeping has also become necessary …..
He possibly thinks that to even think of me is shameful. If I am in the kitchen when he returns from clinic he would not come towards the kitchen till I myself come out. He is not interested in knowing what I was doing inside. Possibly he desires to be away from me more. Slowly my mind is being spoilt … I am losing my ability to think or know ….. If the situation continues like this it may not require much time for me to become insane ….
If he abuses me I will not be disappointed. I feel disappointed and unhappy because he stays far away from me and without talking to me I am hungry for love – why are they all hating me.
I have begun to hate my life – I have no enthusiasm in life, no desire and there is no new life. Instead of leading such a life I feel it is better to die …..
Slowly we are running farther from each other. Why I am a source for his aversion ? Why he is not happy with me ? What else does he require ? My love has not melted him even a little ….
In this house I do not have the authority to feed the guests even once. If any one from my parental house comes they consider it appropriate to humiliate them or not to talk to them ….
Even after five years of marriage even on one occasion he has not brought any article sought for by Anu. Now-a-days he does not even take us out. Going to and coming from clinic is his job. My work is within 4 walls of the house. When he does not like anything about me what is the use of living. We are being together on account of fear of society. Our minds are broken and are tired. Being near we are far away from one another. We two only know this ….
Probably I am suffering from mental ailment. If he talks to me with love, I feel that he has some work to be done and as such he is enacting drama. I feel disgusted with myself. Every time I feel like dying ….
In my mind I have only hatred for him and nothing else. His mind is as black as his body is white … He only wants my body but not my mind. He may agree even if he gets some others body instead of mine. He does not bother about what my mind thinks and that it desires. If he gets my entire body that is sufficient ….
He is very proud of his beauty and ashamed of my ugliness. I did not have even one quality which can make him happy. I am unable to understand what deficiency is in me. I did not become a successful house wife or an ideal mother nor am I happy ….
When he does not like me why does he not remove me from his life and why does he not become free and why does he not liberate me. Why he is giving scope for me to grieve and die ……
I want to die by hanging and my husband and parents-in-law are responsible for it.”
34. A reading of the writings in the dairy would show that the deceased had been frustrated in life as none of the dreams and aspirations which she had, could be realised after marriage. The evidence shows that she studied in her father’s place at Madhya Pradesh and became a graduate in Hindi. Her father was an executive engineer who was having a car and she was living very comfortably. P.W. 2 admits that because she was the last child they showed more affection to her than to the other children. She appears to have been pampered. She appears to have been an idealistic girl and highly sensitive and emotional and parents-in-law in a town and she must have found it difficult to adjust to the new way of life in a small town amongst her parents-in-law who were still strangers to her. The first accused appears to be most unromantic and calculative. It is seen that he has written a letter to his wife in one portion of one inland letter and in another portion of the same letter he has written to his father-in-law. In none of the letters which he has written to the deceased there is any expression of endearment or love. He has written those letters just as one writes to any relative giving some information. He is a type who does not seem to know to conduct himself with his wife and as to how to win the heart of his spouse. The diary discloses that the temperaments of the deceased and the first accused were quite opposite. The evidence shows that the deceased knew painting and embroidery and that she could not take up that hobby after the marriage as the accused considered it to be unnecessary expenditure. But it must me remembered that the first accused had just started practice and in one of his letters to the deceased he has mentioned that his practice is dull and he has to be in clinic throughout and he has hoped that it may pick up later. It is possible that when the deceased wanted to spend on her hobby, A1 thought that it would be unnecessary expenditure. It has come out in the evidence of P.Ws. 1 and 2 that the deceased was complaining that the first accused was not taking her out of walks nor was he taking her to movies. The first accused who have set up private practice in a rural area appears to have devoted himself more to the profession possibly because he wanted to build up his career and the deceased has felt that she is neglected.
35. On account of mental incompatibility difference must have arisen between the couple on trivial matters. There must have been some quarrels now and then. As A1’s parents were living with them the deceased might not have had the freedom in the household affairs which she must have aspired for and because of the elderly people at home there must have been many restraints. The elderly people might not have liked the type of music or pictures she wanted to hear or see and they might have asked her not to put on such music or TV shows. The deceased who must have been used to do as she pleased in her father’s house, appears to have felt offended and humiliated. The accused may be conservative and might have not approved of her mixing or talking freely with outsiders. The married life which she dreamt of must have been quite different from the one which she had and she appears to have been frustrated and quite unhappy. It is possible that the first accused has not tried to understand her feelings and assure her of his love towards her and give the psychological and mental support and security which every newly married girl needs. She had to give birth to a child within about a year after marriage though she did not want a child so early.
35(a). In September 1985 the father of the deceased died. She appears to have been attached to her father and his death appears to have added to her depression. It is in this state of mind she appears to have made an attempt at suicide by talking some tablets. The doctor, P.W. 9, who examined her when she was admitted in Tiptur Hospital has stated that the first accused brought her to the hospital with a complaint of stomach pain and vomitting and that she treated her. She has no doubt said that she treated Shashikala for acute gastritis and she did not make out symptoms of consumption of poison. Her evidence shows that the first accused took her away from the hospital even before she had formally discharged her. The diary, Ex. P4 refers to the incident of October 1985 and the deceased has also stated that she had gone very close to death. P.W. 10 who resides in the house opposite to the house of the accused states that she and some others had got Shashikala admitted to hospital on coming to know that she had taken some tablets. It is probable that the deceased in the wake of her father’s death being depressed has tried to commit suicide by taking some tablets. This attempted suicide on her part must have been the cause for A1 to take her mother’s house and leaving her there in October, 1985. It is not unnatural for A1 to have been scared to live with his wife who had a tendency to commit suicide. He has therefore not tried to take back his wife. However, on the intervention of P.W. 16, who was local MLA, the accused agreed to take the deceased back. It is significant to note that P.W. 16 has stated in his evidence that there were minor differences between the first accused and the deceased and that he told them not to magnify them and spoil their life. P.W. 1 also admits that P.W. 16 advised first accused and his sister that on trivial matters they should not quarrel and that they must live in harmony and peace.
36. Though the deceased went to live with the accused in pursuance of intervention of PW 16 and others, her husband appears to have remained aloof. After that attempted suicide on the part of the deceased the chasm between the couple appears to have gradually widened. As repeatedly stated by the deceased in the diary though they were husband and wife for outside world they had become strangers to one another. The diary also shows that the deceased had developed a hatred towards her husband. She herself has stated that even if her husband were to talk affectionately she was taking it to be a drama. She must have become highly irritable and she herself has confessed that for no reason she used to abuse the child. On account of frustration which had set in, she was prone to finding fault in her husband and his people. Even on the nigh of 5-11-1987 the shouting heard by PW 10 was that of the deceased and not of the accused. It is in this depressed state the deceased has not been able to resist the tendency to commit suicide.
37. In the letter written by the deceased on 7-11-87 itself prior to committing suicide, which is addressed to her sister-in-law, she has stated that though she i.e., sister-in-law would have kept her in her house, in the eyes of society a girl who once goes to her husband’s house should leave that house only after her death, that her husband had continued in the same state and that she has not been able to tolerate all that. It would appear that she did not want to go back to her brother’s place and seek dissolution of marriage. In the diary she has observed that the first accused was not considering dissolution of the marriage and giving liberty to her. Hence she appears to have decided to commit suicide.
38. The material on record no doubt shows that the deceased was unhappy. But the cause for this unhappiness was the failure of the first accused in understanding her feelings and not showing love and affection for which she was yearning as well as the incompatibility of their likes and dislikes. It is said that there is no greater disparity in marriage than unsuitability of mind and purpose. The marriage appears to have broken down and the deceased did not see any possibility of retrieving it. She appears to have been mentally depressed during that period and she has felt that the only way left to her was to die. Though the conduct of A-1 might not have been that of an ideal husband and he might have failed in his duty to provide love and mental security to his wife, the material on record does not show that he is guilty of such wilful cruelty as to drive an ordinary woman in Indian set up to commit suicide. Section 498-A is not intended to punish those husbands whose wives undergo mental suffering and unhappiness largely due to incompatibility of temperament and attitude.
39. So far as A-2 and A-3 are concerned though in the diary the deceased states that they are also responsible for her suicide, there is absolutely nothing in the diary to show that they in any way harassed her or treated her with cruelty. All that is written in the diary pertains to A-1. If the deceased has stated in what manner A-2 and A-3 ill-treated her or subjected her to cruelty that statement could be taken into consideration. But without stating as to how A-2 and A-3 were responsible for her committing suicide, if the deceased simply holds them responsible, the Court cannot on that basis convict them for the offence under S. 498-A. In the present case there is absolutely no evidence to indicate that A-2 and A-3 subjected the deceased to any cruelty.
40. The learned Sessions Judge has not taken into consideration the entries in the diary as a whole and he has picked up one sentence here and one sentence there to hold that the accused had treated the deceased with cruelty. He has not noted that nowhere there is any allegation of cruelty against A-2 and A-3. The grievance of the deceased has been mostly about the indifference of A-1 towards her. The learned Sesssions Judge has not analysed the entire evidence in the light of the entries in the diary to find out whether cruelty of the type referred to under S. 498-A, IPC had been made out.
41. On the material on record we are unable to sustain the conviction of the accused for the offence under S. 498-A.
42. It is seen that no charge under S. 202, I.P.C. has been framed against A-1. The learned Sessions Judge has convicted A-1 for the offence under that section mainly on the basis of the decision in Bhagawan Swarup v. State of Rajasthan, 1991 (3) Crimes 284; (1991 Cri LJ 3123). On the facts of that case the Supreme Court found that the accused who fully well knew that the deceased had died, informed a witness that the deceased was in a serious condition and that he had also not disclosed the fact of death to one other witness and that when the brother of the deceased came to the house the accused wanted the body to be cremated. It is purely on those facts the Supreme Court has held that the offence under S. 202 I.P.C. is made out. In the present case admittedly some one, who telephoned PWs 1 and 2 and informed them that Shashikala was serious and asked them to come to Tiptur. The evidence of PW 8 shows that when the first accused found his wife hanging he broke down. His parents were not there and only the child was with him. Obviously in that condition he himself could not have gone out to give information either to PWs 1 and 2 or to the police. He states that he requested one person to convey the information to PWs 1 and 2. PW 8 in his statement before police has stated that A-1 gave one telephone number and requested him to give information to the brother and mother of the deceased. Possibly the person who gave information to PWs 1 and 2, in order to avoid they being shocked, has told them that Shashikala was serious. It is not the case of the prosecution that A-1 had made any attempts to cremate the body in a hurry. He has waited till PWs 1 and 2 and others arrived. Though A-1 himself might not have given information to the police the evidence of PW 1 shows that even before he could secure Ex. P3, chit, from the accused the police had come there. The complaint has been lodged subsequently. As such some one must have given information to the police. On the facts of this case it cannot be said that A-1 had committed an offence under S. 202, I.P.C. without even a charge being framed in that regard.
43. For the above reasons Cr.A. 357/92 is dismissed and Cr.A. 222/92 is allowed setting aside the judgment of the trial Court convicting the appellants of the offence under S. 498-A, I.P.C. and convicting the first accused for an offence under S. 202, I.P.C. and acquitting the appellants of even those charges.
44. Order accordingly.