Karnataka High Court
Waheed S/O Razak Bagwan vs The State Of Karnataka on 8 July, 2020
Author: P.N.Desai
                             1




        IN THE HIGH COURT OF KARNATAKA
               KALABURAGI BENCH

     DATED THIS THE 08TH DAY OF JULY, 2020
                   BEFORE
        THE HON'BLE MR.JUSTICE P.N.DESAI

          CRIMINAL APPEAL NO.3593/2013
BETWEEN:
Waheed S/o Razak Bagwan
Age: 25 years, Occ: Fruit Seller,
R/o Shasthri Nagar, Solapur
Now at Torna, Tq. Aurad (B)
District Bidar.
                                           .... Appellant
(By Sri. Ashok Kumar Manure, Advocate)
AND:

The State of Karnataka
Through its Police
Kamalanagar Police Station,
Rep. by Addl. Public Prosecutor
                                          ... Respondent
(By Sri. Gururaj V. Hasilkar, HCGP)

      This appeal is filed under section 374 (2) of
Criminal Procedure Code, praying to call for the records
of the court below and after hearing the appeal set aside
the order of conviction passed by the Additional District
& Sessions Judge at Bidar in S.C.No.87 of 2012 dated
01.03.2013 and the accused / appellant may kindly be
acquitted in the ends of justice and equity.
    This appeal having been heard, Reserved for
Judgment and coming on for pronouncement of
Judgment this day, this court delivered the following;
                              2




                     JUDGMENT

This appeal arises of a judgment of conviction passed by the Additional District & Sessions Judge, Bidar in Session Case No.87/2012 dated 01.03.2013, convicting the accused No.1 and sentencing him to undergo simple imprisonment for two years and to pay fine of Rs.10,000/- in default of payment fine to undergo simple imprisonment for three months for the offence punishable under Section 498-A of IPC and he is further sentenced to undergo simple imprisonment for seven years and to pay fine of Rs.20,000/- in default simple imprisonment for six months of the offence punishable under Section 304B of IPC and he is further sentenced to undergo simple imprisonment for five years and to pay fine of Rs.10,000/- in default simple imprisonment for three months for the offence punishable under Section 306 of IPC. The learned Trial Court has acquitted the accused No.2 to 6 for the said offences.

2. The appellant who is accused No.1 before the Trial Court will be hereinafter referred as accused No.1 for convenience.

3. The brief case of the prosecution is that, the marriage of the appellant / accused No.1 was performed with deceased Yasmin about three years prior to her death. It is further case of the prosecution that at the time of marriage as per their religious customs Rs.35,000/- and two tolas gold was given as per their traditions. His marriage was performed at Nalegaon village (MS) and thereafterwords they are were residing happily.

4. It is further case of the prosecution that the accused started ill-treating her for dowry, deceased Yasmin informed the same to her parents. Hence, she came to their house stating that her husband, her father-in-law and mother-in-law and his husband’s sister were all asking her to bring dowry. One year prior to her death, they had given Rs.15,000/- to Waheed accused No.1, then they looked after her properly for a period of six months, then she delivered child. PW15- Ismail brought her and left her in her husband’s house at Torna village. Then again deceased telephoned her parents stating that all the accused are ill-treating her, asking her again to bring Rs.20,000/-.

5. It is the further case of the prosecution that on 17.11.2011 afternoon between 1.30 p.m. to 2.00 p.m, the accused No.1 called father of deceased by telephone and asked him to pay Rs.20,000/- otherwise his daughter will not be alive and at in the same telephone, the deceased also informed complainant that she was ill-treated and asked her father to come and take her back. Then father of deceased told her that he is in some other village and on next day he will come to Torna village. It is further case of the prosecution that at about 3.00 p.m. somebody from Torna village telephoned complainant-Ismail-PW15 stating that his daughter Yasmin had jumped in to a well. Immediately PW15 called his relatives and went to Torna village and found that there were slippers of his daughter by the side of the said well. In this regard, he lodged a complaint with the Kamalnagar Police Station, Taluk Aurad. The said complaint was given in Marathi language the same was translated by Police Constable Vikram PC No.1546 in Kannada language. On the basis of the same, PSI Basappa Burli, who was the Station Officer on 18.11.2011 received the said complaint at 8.00 a.m. from Ismail the father of the deceased which was in Marathi language and got translated the same to Kannada language and registered in Crime No.112/2011 and issued FIR as per Ex.P16 and made a translation of the complaint at Ex.P1(a) and sent the FIR as per Ex.P24 to Court. Thereafter words, PSI requested to Tahasildar to conduct the inquest mahazar of the dead body of the Yasmin and handed over further investigation to Dy.S.P. Bhalki PW27.

6. PW27-Ramesh, Dy.S.P.,Bhalki took further investigation on 18.11.2011 from PSI Kamalnagar, visited the spot and prepared the spot mahazer in the presence of Baburao and Dayanand at 11.00 am to 12.00 noon and seized MO1 and MO2 shown by the complainant. The scene of offences place is a open well and it contains water about 12 to 15 feet deep. The said panchanama is at Ex.P3. He also seized the cloths of the deceased under panchanama Ex.P4. Then he recorded further statement of the father of the deceased Ismailsab and mother Rahina and also statement of witnesses Zulfikar and Iftikar, Gousoddin, Maheboob sab, Tajoddin, Nazayath, Mujeeb, Ismail, Mohd. Moulana, Rajkumar, Kaleem, Saleem, Prakash, Nazeer, Sushil, Prabhu, Basheer sab, Vikram, Rajshree and Shivaji. On the same day PSI has produced accused No.2 and 3 before him as per report Ex.P25. PW27- Dy.S.P. arrested them and produced before the Court. He also collected the certificate regarding place of the well from Tahasildar and also wrote a letter to Assistant Executive Engineer, PWD for preparing sketch map of scene of offence place. On 19.11.2011 he has arrested accused No.1 and 5 and produced before the Court. On 01.12.2011 the deceased dead body was sent to the post mortem examination and he collected the marriage photos and the PM report. He also collected inquest mahazar and statement of the Tahsildar as per Ex.P20 and Ex.P21 and after completing the investigation, he has filed the charge sheet against the accused No.1 to 6 for the offence punishable under Sections 498A, 304B R/w section 34 of IPC before the Civil Judge and JMFC Court, Aurad. The said case was committed to the Court of Session by JMFC Court. The learned Sessions Judge framed charge against Accused No.1 to 6 for the offence punishable under Sections 498A, 304B and 306 R/w Section 34 of IPC. Thereafter, the prosecution examined 27 witnesses as PW1 to PW27 and got marked Twenty Six documents as Ex.P1 to Ex.P26. Ex.D1 and Ex.D2 are marked in cross examination and also got identified material objects MO1 to MO5.

7. After hearing the learned counsel for the accused and learned Public Prosecutor, the Trial Court has convicted the accused No.1 only for the offences stated above and acquitted other accused No.2 to 6.

8. Aggrieved by the same, this appeal is filed on the following grounds:-

That the order of conviction passed by the Additional and Session Judge, Bidar is capricious, illegal perverse and based on the assumption and presumption that none of the independent witnesses have supported the prosecution case. The learned Session Judge only believing the evidence of witnesses PW15 to PW18 and PW22 convicted accused No.1/ appellant which is improper as they are interested witnesses and relatives of the deceased Yasmin. There are lot of contradiction in their evidence. The conviction has resulted in miscarriage of justice. It is further contended that the prosecution has not been able to prove the charge beyond reasonable doubt. With these main contentions, he has prayed to set aside the order of the conviction.

9. Thereafter words, I heard the learned counsel for the appellant Sri. Ashok Kumar Manure through video conference from Bidar, as it is Covid-19 time, the Courts are functioning with limited number of cases and hearing through video conference and also by physical hearing. The learned counsel for appellant stated that he is in Bidar argued from his office through Video conference facility and also heard the learned High Court Government Pleader.

10. The learned counsel for appellant/accused No.1 mainly argued that witnesses PW1 to PW11, PW20 and PW21 have not supported the prosecution case. The only evidence before the Court is given by PW15 and PW16 who are the deceased parents. PW17 is the brother-in-law of PW15 and PW18 is the brother of deceased and PW22 is the co-brother of PW15. So they are all highly interested witnesses and there is no corroboration in their evidence to prove their testimony. The learned counsel has further argued that the marriage had taken place on 01.06.2009, the accused is a fruit seller at Pune. None of the ingredients of sections 498A304B306 IPC are proved. The well where deceased body found is situated on the back soil and it is on ground level. MO1 and MO2 pot and slippers were found in the well. So may be she had gone to bring water and fell down, the incident is accident and it is only an accidental death. The learned counsel further argued that evidence of prosecution witnesses is full of inconsistency and material contradictions. It is also in the evidence that the sister of the deceased by name Wasima was in love with the accused No.1 may be for that reason also she might have committed suicide, the said Wasima is not examined, no neighbours were examined to show that there was any cruelty or dowry harassment. None of the ingredients of cruelty or dowry harassment or suicide are attracted to this case. There is no evidence about specific time or date to show when the cruelty was caused. She was residing in the parents house only. There is absolutely no evidence to convict any of the accused and convict the accused No.1 and as already the Trial court has rightly acquitted the other accused and in the absence of any legally admissible evidence, this accused No.1 is also entitled for acquittal. In support of these contentions, he relied upon the following decisions of the Supreme Court reported in

1. 2011 (1) criminal 262 Rakesh Chand & another V/s State of Punjab.

2. 2007 Criminal 444 Biswajit Haldar @ Babu Halder and Others V/s State of West Bengal.

3.    2007 Criminal 656
      Shivanand Mallappa        Koti     V/s    State    of
      Karnataka.

4.    2011(3) Crimes 791 (M.P.)
      Mohan Lal V/s state of M.P.

5.    2006 Criminal 226
      Harjit Singh V/s State of Punjab.

6.    2004 Criminal 288
      Surinder Kaur and        Another    V/s    State   of
      Haryana.

7.    2004 Criminal 300

Ashok Vishnu Davare V/s State of Maharashtra.

8. 2008(2) Crimes 365 (SC) Narayanamurthy V/s State of Karnataka & Another.

9. 2006 (4) Crimes 1 Vishwambar V/s State of Karnataka.

10. 2007(1) Crimes 110 (SC) Appasaheb & Another V/s State of Maharashtra.

11. 2004 (4) Crimes 113 (SC) State of Rajasthan V/s Teg Bahadur & Others.

11. So in view of the principles stated in the above referred decisions, the learned counsel for the appellant has prayed to acquit the appellant.

12. The learned High Court Government Pleader who appeared for prosecution has supported the judgment and stated that absolutely there is no reason to disbelieve the evidence of witnesses who have supported the prosecution case. He has argued that there are no ground to interfere with judgment of Trial Court and prays to dismiss appeal.

13. In the light of these arguments, the points would that arise for my consideration are as under:

1) Whether the prosecution proved beyond all reasonable doubt that the death of deceased Yasmin is an accidental death or suicide and her death had taken with 7 years of marriage?

2) Whether the prosecution further proved beyond all reasonable doubt that the deceased Yasmin was subjected to cruelty by her husband appellant with a view to coherse her meeting a demand for dowry and that caused mental cruelty to her?

3) Whether the prosecution proved beyond all reasonable doubt that soon before her death she was subjected to cruelty by appellant in connection with any demand of dowry or cruelty consisted of wilful conduct by the accused No.1 and is of a such a nature as she is likely to lead the deceased to commit suicide in consequences of abetment made by accused?

4) Whether the judgment of the Trial Court is based on settled principles regarding appreciation of evidence in criminal case?

5) Whether the judgment of the Trial Court needs interference by this Court?

14. In order to attract Section 498A304B and 306 of IPC and Section 113A113B of Evidence Act, it is very much essential that the prosecution has to prove the ingredients of cruelty under Section 498A i.e cruelty immediately prior to committing suicide or death and for meeting demand of dowry, then only the presumption under Section 113A and Section 113B of the Evidence Act can be raised. In order to appreciate the essential ingredients for proof of the said offences, it is necessary to refer to these sections in Indian Penal Code and Indian Evidence Act, which reads as under:

Section 498-A of IPC. 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.] Section 304-B of IPC. Dowry death –

(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.

Explanation. – For the purpose of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.] Section 306 of IPC. Abetment of suicide- If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

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

Explanation. – For the purposes of this section, “cruelty” shall have the same meaning as in section 498A of the Indian Penal code (45 of 1860).] Section 113B of Indian Evidence Act. Presumption as to dowry death-

When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.

Explanation. – For the purposes of this section, “dowry death” shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860).]

15. In the light of these sections, let me consider the essential requirements of Sections 498A304B and 306 of IPC. Here allegations was that accused persons had treated the deceased with cruelty for fulfillment of dowry demand. So it is necessary to prove that the deceased was subjected to cruelty by the husband or relative of husband and such cruelty consisted of either harassment of the woman with a view to coerce her meeting a demand for dowry, or (2) a wilful conduct by the husband or the relative of her husband of such a nature as is likely to lead the lady to commit suicide or to cause grave injury to her life may be physical or mental. In order to attract the provisions of Sec.304-B of IPC, prosecution has to prove that (a) the death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances

(b) such death must have occurred within seven years of her marriage; (c) soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband; (d) such cruelty or harassment must be for or in connection with demand for dowry; and (v) such cruelty or harassment is shown to have been meted out to the woman soon before her death.

16. The term ‘dowry’ is not defined in Indian Penal Code but it is defined in Dowry Prohibition Act. So as to raise presumption in this regard, prosecution has to prove beyond all reasonable doubt that there is un-natural death which took place within seven years of marriage and deceased has been subjected to cruelty and harassment in connection with demand of dowry. If that is shown, the court has to presume that such a person has caused dowry death.

17. Under Section 306 of IPC, the prosecution has to prove commission of suicide by deceased and that the accused has abetted commission of such suicide. Section 107 of IPC defines abetment. According to Sec. 107 of IPC, there must be instigation to commit an offence or engaging in a conspiracy to commit it or intentionally aiding a person to commit it. Here the wife of the accused has committed suicide. The prosecution has to prove that accused intentionally aided commission of said offence. Whether there is any evidence to show that the married woman was treated with cruelty which could fall within the ambit of Sec. 107 IPC, there must be mens rea or community of intention. Without the knowledge or intention, there can be no abetment and the knowledge and intention must relate to the crime and the assistance must be something proximate and something more than a mere passive acquiescence.

18. So, keeping in mind these principles, and the arguments advanced by both sides, let me consider the evidence of prosecution.

19. The post mortem report Ex.P13 clearly indicates that the said Yasmin W/o Waheed Bagwan, aged about 25 years body was examined on 18.11.2011 and it was found that there are no external injuries on the body, no marks of ligature seen on neck, Brain- Congested Spinal cord cavit be explored, Oedematous and congested are also intact and the opinion as to the cause death is due to respiratory asphyxia following drowning.

20. The doctor PW12 Shivkumar who is examined as Medical Officer has also stated about the same and he has stated that exact time of death cannot be stated and it is in between 24 hours to 48 hours, so it is evident that there are no injury at all on the body of the said deceased. Therefore, as it is only a death of drowning, it is either a accidental or a suicidal death, but it is not a homicidal death.

21. PW15-Ismail is the father of the deceased. He has stated that they have given Rs.35,000/- and two tolas gold to the accused at the time of marriage. Prior to one month of the marriage, they have given dowry to the accused. Thereafter, the date of the marriage is fixed. After marriage again the accused started asking money, again he paid Rs.15,000/-, then her daughter came for delivery. After delivery he sent his daughter to the house of the accused. Again after 2 or 3 months accused assaulted his daughter to bring the money. Then accused No.1 telephoned to him about 10 months prior to he giving evidence asking him to pay dowry of Rs.20,000/-, then his daughter talked with him stating that accused are harassing, they are demanding her dowry. Then about 3.00 pm one Praksh telephoned PW15 stating that his daughter committed suicide by jumping into the well. So on the same day at 7.00 p.m. he came to Torna village and went to the house of the accused, it was locked. Chappal and one Kalashi i.e. MO1 and MO2 were floating in the well. Then he went to the Kamalnagar Police Station and lodged the complaint. Then the Tahasildar came and lifted the body from the well. He made inquest mahazar. He has identified the body of his daughter and also identified the clothes of the deceased. In the cross examination, it is stated that he cannot read and write Kannada language and he has given statement at Torna village and Bhalki before the police.

22. He has admitted in the cross-examination that after the marriage accused / appellant was residing with his daughter Yasmin at Pune. He also admitted that his daughter by name Wasima and son Iftikar were also residing with deceased and accused No.1 at Pune. He has admitted that his children stayed with them for one and half years. Again he has stated that his daughter Jabeen was residing with them, but not Wasima. He has also admitted that they had come to village Torna on Ed of Gyaravi. He has also admitted that after the said festival his daughter came to his house for delivery and after the delivery of the child, accused No.1 came to their house and stayed for about 15 to 20 days. He has denied the suggestion that his another daughter Wasima and accused were missing and they were found at Udgir and they have taken them to Nalegaon and assaulted them. It is suggested that the deceased came to know about their illicit relationship and jumped into the well out of frustration, he saved her. He has denied the suggestion that the deceased Yasmin and her sister Wasima started quarreling with each other with regard to staying with accused No.1, then they forcibly sent deceased to Torna village. He has stated that he has sent Yasmin on 16.11.2011 to Torna village.

23. He has admitted that he did not know whether Yasmin went to the well for taking water. He has admitted that the well is an open well and one may fell in the well, if there is a slip near the well while taking water, if the said persons was wearing a slipper. He has stated that there are injuries on the body of the daughter, which is again contrary to PM report and the statement Ex.P1. It is suggested that the Yasmin went to well to bring the water and accidentally she slipped in a well and she died. He has admitted all other accused are residing in different places. He has admitted that accused No.1 given a Maher of Rs.1,100/- to his daughter Yasmin. He has denied the suggestion that he is deposing falsely just to harass the accused. He has admitted photo Ex.D2 where appellant is standing with his another daughter Wasima so this is all his evidence. Of course, that photo is marked subject to objection. So it is evident from his evidence that according to him whatever amount they have given at the time of marriage, he calls it as a dowry amount. In his entire evidence, he simply states the accused started to torture demanding dowry. But what is the torture is not stated by him, nor what is the nature of torture is not stated by him. As already discussed in the judgment of the Trial Court, this case came to be filed not only against this appellant, but against all the persons who are totally unconnected and not residing with the accused No.1 or the deceased. He has stated that after one year of marriage, he has paid Rs.15,000/- dowry. His occupation is coolie. Then how he has paid that amount is not forthcoming. Simply stating that accused person tortured his daughter, are vague, general words and evidence. Again he has stated that his daughter talked with him stating that accused are harassing him. Again, what is the nature of harassment what type of harassment, whether it is physical or mental harassment. Nothing is stated. Simply a general vague evidence stating that accused were harassing his daughter without giving any particulars or proof in this regard will not amounts cruelty. The evidence of PW15 will not be help, the prosecution case to prove any type of cruelty as defined under Section 498A. He has stated that one Prakash telephoned him stating that his daughter committed a suicide by jumping into the well because of torture given by the accused, so according to him that Prakash informed him, but that Prakash has not at all supported the evidence of this witnesses nor he has supported the case of prosecution. The said Prakash is examined by prosecution as PW21. The said Prakash PW21 has stated that he did not know how she died. He further stated that he has not given any statement before the police. He was treated as a hostile witness and cross-examined at length, but nothing helpful to the prosecution case is elicited in his cross examination. The lodging of complaint by PW1 is stated on the same day of incident, but according to Investigation Officer evidence, the complaint was received on next date i.e. 18.11.2011 at 8.00 a.m. thereby there is a doubt about the contents of Ex.P16. Even apart from that contents on Ex.P16 are considered, it is evident that he never stated that the daughter was either assaulted. Simply he has stated they use to ill-treat her. But what is the nature of ill- treatment is not stated by him. Even in the complaint Ex.P16, he has mentioned that whatever amount is given at the time of marriage is according to their customs tradition and religion. The allegations is against the parents of accused No.1 / appellant and the sisters brothers who were not residing with him. It is also evident that deceased went to her parents house for delivery and resided in her parents house. According to complainant he just brought her one day prior to incident i.e. on 16.11.2011 to Torna after delivery. So the question of this appellant harassing her does not arise and he has admitted clearly that his another daughter and son were residing with deceased and accused No.1 for more than one and half years. If that is the contention, they would be have stated so before the Court about cruelty. Even in his cross examination he admits that even at the time of delivery also the accused No.1 use to come to his house and stayed for 15 to 20 days. In fact, he has admitted that the accused and the deceased were residing at Pune and his another son and daughter were also residing with him. The cross examination clearly reveals that none of the accused who were acquitted were residing with accused No.1 and accused No.1 was residing separately from them. He has admitted that accused No.3 who is acquitted was residing at Lattur and doing fruit business, having children also. Accused No.4-Tasleema was residing in Zahirabad having children. Simply stating that her daughter was ill-treated for dowry will not attract the provisions of Section 498A or 304B. His cross examination clearly reveals that he tried to suppress that Wasima was residing with accused No.1. His evidence does not inspire any confidence in him.

24. PW16-Rehana is the wife of the deceased, she has also stated that the marriage of the accused No.1 and her daughter Yasmin took place about 4 years back she giving evidence and the accused demanded Rs.35,000/- cash and two tolas of gold. Accordingly, they have given the money when the date of marriage is fixed. But contrary to her evidence, PW1 has stated that first they paid the dowry amount at Nalegaon then the date of the marriage is fixed. She has stated that accused after two months of marriage started abusing and assaulting daughter by demanding money. Again such type of her evidence is also vague and general one. Because which accused abused her and assaulted her is not forthcoming. Why they were demanding money is also not forthcoming, what are the particulars of the incident or the nature of abuse and assault is also not forthcoming. She has further stated that the accused started to abuse her daughter, but the same is not stated by PW1. What is the nature of abuse is also not stated. She has stated that again her daughter telephoned stating that accused are demanding of Rs.25,000/-. PW15 states that the accused No.1 asked him to pay Rs.20,000/-. So when he telephoned, from which number he telephoned, nothing is forthcoming, so whatever amount of demand they feel they are stating in the evidence. In the cross examination, she has stated that one Mr. Prakash Patil telephoned that her daughter fell into the well and died. She has not stated that because of this any type of ill-treatment or cruelty her daughter fell into the well. She has simply stated that Prakash Patil told that her daughter fell into the well and she died. So how she fell into the well is not stated by her. She has stated that accused have committed the murder of her daughter which is again a new theory. In fact, the prosecution statement try to make out case to indicate that accused have murdered or by assaulting her and thrown the body in the well. But there is no injury on the body. Therefore, the cause of death is not known to her. She has admitted that she has seen that well which is the old well surrounded by black soil and nobody uses the well to bring the water. If anybody goes to the well for bringing water, they will fell into the well. She has also admitted that accused No.1 and her daughter Yasmin were residing at Pune for 8 to 10 months, but she has denied his suggestion that her son Iftikar, daughter Wasima and Jubeena were also residing with accused No.1. But PW15 states that they were residing with the accused No.1 though not four years but for one and half years, that itself indicates that this witness is suppressing the truth. Though in Ex.D2 Photo, PW15 admits that his daughter Wasima is present, but this witness denied that photo of Wasima with accused. So that itself indicates that she is trying suppress the truth and she has denied the suggestion that her daughter Wasima was eloped with accused No.1. She has denied the suggestion that earlier also her daughter tried to fell in to well and try to commit suicide due to tension of Wasima residing with accused No.1 and they protected her. She had denied suggestion that the deceased Yasmin fell in the well accidentally. So PW16 evidence also does not indicate the ingredients of cruelty or dowry demand or any abetment to suicide.

25. PW17-Maheboob has stated that at the time of marriage talks, he was present at Nalegaon. After discussion the parents of the deceased have paid Rs.35,000/- and two tolas of gold to the accused No.1 and he states that he has written Yadi and it is at Ex.P10, but Ex.P10 is in the Marathi language no translation is kept with it. Even it no were indicates about any dowry nor it bears signatures of accused or anybody from accused side. One tola dower amount is mentioned in it. He states that at the time of fixing marriage, one Gousuddin paid the dowry amount to the accused. To which accused the said amount is paid is not forthcoming. PW15 and PW16 have not stated about any Gousuddin giving such amount. He has given new version stating that accused No.1 and deceased lived happily for six months. Thereafter, accused started demanding Rs.20,000/- for starting business. So the complainant paid Rs.15,000/-. Both accused No.1 and Yasmin went to Pune and started business. Then she delivered the female child. So this version is totally not corroborated by PW15 and PW16. It appears that they lived happily for long year. He has stated that accused started demanding Rs.30,000/- from the parents of the deceased. None of the witness states that the accused asked about dowry amount of Rs.30,000/-, PW16 stated that Rs.25,000/-, this witness states they started demanding Rs.30,000/-. Which of the accused demanded, when they demanded, to whom they demanded nothing is forthcoming in the evidence of witnesses. Whatever amount they feel they are stating which is general and vague one. No where this witness PW17 stated that deceased was subjected to any ill-treatment or harassment. On the other hand what he states is that Rs.20,000/- was given to start the business to accused No.1. Accordingly, both accused NO.1 and deceased went to Pune and started business. He has not stated about a dowry amount nor any harassment, ill-treatment or abuse. So causing of cruelty or harassment for demand of money for meeting unlawful demand of dowry is totally absent in the evidence of this witness. He never states that the accused ill-treated her and abused her. So his evidence is contrary to the evidence of PW15 and PW16. On the other hand, he states that he received the telephone call stating that Yasmin died in Torna village. How she died is also not stated by him. In his cross examination, he has admitted that no document is prepared at the time of marriage talk and there is no such marriage talk and afterward fabricated Ex.P10 handed over to the police in order to help the complainant and deposing falsely before the Court. He has admitted that complainant i.e. PW15 is his sister’s husband. He has stated that he has not talked with deceased Yasmin at any point of time. He was in Hyderabad at the time of incident. So he being the close relative of deceased should have stated about the ill-treatment, harassment or cruelty if at all the said harassment or cruelty is caused on the deceased for meeting any unlawful demand of dowry. He has also admitted that he has not gone to Torna village before the incident. He do not know neighbours house of accused No.1 at Torna village. He has clearly stated that Wasima is another daughter of complainant and she is sister of deceased Yasmin. But both parents of Yasmin tried to denied and changed her name. He has also admitted Ex.D2 contents of photos of Wasima and accused No.1. He do not know whether the accused No.1 visited the house of parents of deceased after her delivery. He has further stated that he do not know the business of accused No.1 at Pune and he do not know what accused No.1 was doing at Pune. He has further stated that he do not know financial status of accused No.1. So this witness do not know anything about the accused No.1 and how they lived at Pune. Though he has stated in chief that Rs.15,000/- was paid and accused No.1 and Yasmin went to Pune and started business. But in the cross-examination, he states that he do not know anything about accused No.1. He never visited the accused native place Torna nor he know anything about the business of the accused at Pune. He do not know the financial status of accused No.1, so his evidence will not help the prosecution. He has admitted at para 2 of his Cross- examination that complainant is his close relative i.e. the said complainant is husband of his sister. So he being the brother of complainant wife just to support them he is giving evidence without any knowledge about alleged cruelty which is contrary and inconsistent with other witnesses.

26. PW18-Iftikar is the brother of deceased Yasmin and son of PW15 and PW10. He has stated that they have paid Rs.35,000/- prior to marriage and two tolas of gold was given at the time of marriage. To whom the said amount was given, who has given that amount to whom nothing is stated. The evidence in this regard is general and vague one. He has stated that after the marriage they are residing at Torna and accused torturing the sister Yasmin by demanding money. Which of the accused demanded money is not stated. But he stated that accused demanded Rs.15,000/- whether this accused No.1 or his parents have demanded is not forthcoming. He has further stated his father has paid Rs.15,000/-. Again Rs.20,000/- was demanded and one Prakash Patil telephoned that his sister died by felling into the well, then they went to the house of the accused which was locked, then they stayed near Well, then police enquired. He has also stated that his sister died due to torture given by the accused. Again he has not stated what is the type of torture whether it is mental torture or physical torture. No particular incident or particular act of this accused No.1 is stated. The nature of torture, the type of torture, the degree of torture nothing is stated. Again in the cross-examination he clearly admitted that he was residing with accused No.1 at Pune, but he states his sister Jabeena was residing with him only for a period of one month, wherein his parents his father PW15 has admitted that stayed for more than one year. This witness has resided with the accused No.1 at Pune. He denied that his sister Wasima was residing with accused No.1. On the other hand, he admits that himself and accused No.1 were selling the fruits at Pune. He also admits that it was good business and accused No.1 was getting good income, so that indicate the financial position of accused No.1 at Pune was very good. In fact, accused No.1 was doing business with this witness. He has clearly admitted that accused No.1 was not harassing his sister Yasmin when they were staying at Pune. So the evidence of the parents of deceased PW15-Ismail and PW16-Rehana that accused immediately after two months started torturing her and demanding dowry appears to be false and inconsistent with evidence of PW18. Again they have paid the amount is falsified by his evidence. PW15 has clearly admitted in the Cross-examination that this Iftikar stayed at Pune with accused No.1, he stayed there for about one and half year, but not four years. So it appears there was no torture by accused No.1 to Yasmin during the period of stay by this PW18. This makes the very theory of harassment and torture stated by prosecution witnesses doubtful. He has also stated that accused No.1 and Yasmin were residing together after he returned to village. He has further stated that accused No.1 and Yasmin came for Eed of Gyarvi at that time also the accused and Yasmin were in good terms. He has further stated that thereafter there is a quarrel and his sister came to Nalegaon for delivery. He has also admitted that accused No.1 also came to her house at Nalegaon to see his child. He also admitted that the accused stayed in their house for about four days. So that itself indicates that accused No.1 was in good term with deceased her parents and there are no such harassment or cruelty. PW15 has admitted that after Gyarvi festival his daughter came for delivery and after delivery accused also came to their house and stayed for about 15 to 20 days in his house, so that itself indicates that the accused No.1 never tortured or ill-treated this deceased. Because PW18 state that even when accused No.1 come for festival Gyarvi, the accused No.1 and Yasmin were in good terms, thereafter she went for delivery of the child. Even after she delivered the child accused came to her parents house and stayed there for 15 to 20 days. If at all the accused was harassing or ill- treating her or demanding dowry, he could not have stayed in their house for such long period. According to PW15 after delivery he sent his daughter to accused house, then this incident had happened immediately after she returned to Torna. The marriage had taken place in the year 2009 and according to prosecution, this incident had taken place in the year 2011. So for two years they were in good terms. He has also denied his sister Wasima and accused No.1 eloped from their house. They were found at Udgir lodge and they were beaten. He has stated that accused No.1 was staying at Latur, then how he could give any torture or cruelty to her is not forthcoming. He has stated that deceased had gone to Torna and he do not know when accused No.1 who was residing at Latur came to Torna. So his evidence clearly falsify the theory of causing any type of cruelty or harassment or ill-treatment on deceased by accused No.1.

27. Therefore, the evidence of these witnesses who were all close relatives is full of contradiction and inconsistency about causing any type of cruelty or harassment or the nature of cruelty or harassment. The evidence about demanding of money or dowry or harassment is inconsistent. The evidence of these witnesses is full of contradiction inconsistencies about material particulars. Wasima another daughter of PW15 and PW16 is not examined. According to these witnesses this PW18 and another sister stayed with accused No.1 at Pune. In fact PW18 was doing business with accused No.1 at Pune, so if at all the accused No.1 harassed or ill-treating the deceased or demanding any money from his parents, he could not have kept PW18 and his sister with him. In fact as admitted by PW18, accessed No.1 had a very good business of fruits selling and he had very good income, so there is no question of demanding any money for his business. Everything appears to have been created by these witnesses in the grief of loss of their daughter. On the other hand PW18 clearly states that they were in good terms. He never states about any abuse or assault on deceased by accused No.1 or by anybody. It is evident all these witnesses evidence is only a general and vague evidence which do not constitute any offences either under Section 498A or 304B or under Section 306 of IPC.

28. None of the other prosecution witnesses have supported the charge leveled by the prosecution or the corroborated the evidence of these witnesses. Nobody has seen how the deceased fell into the well. But only they received a telephone call that she fell in the well and died. Admittedly the steel pot and chappals were also found. The very nature of well as evident is on the ground level and anybody can fall in the said well, so the possibility of this deceased slipping into the well also cannot be ruled out. Because the other prosecution witnesses have totally given go bye to the prosecution case.

29. PW1-Meherun Bee of village Torna who is a witness for inquest mahazar has not supported the prosecution case. PW3-Dayanand who is also witness for spot and seizure of mahazar Ex.P3 and Ex.P4 has not supported the prosecution case. PW4-Uttam who is a witness for inquest mahazar Ex.P1 has not supported the prosecution case. PW5-Baburao has also not supported the inquest mahazar or its contents All these witnesses were treated as a hostile witnesses and cross- examined by the prosecution, but nothing helpful to the prosecution is elicited in the cross-examination they have totally denied the evidence of prosecution.

30. PW6-Rajkumar is a independent witness who is a resident of the accused village Torna. He has stated that he do not know anything about any torture given by accused to Yasmin nor he has given any statement before the police in this regard and he has not lifted the body of Yasmin from the well. Though he was cross examined at length, he has stated that he has not given statement before the police as per Ex.P6. Shaik Saleem PW7 is a again resident of village Torna where deceased died. He has also not supported the prosecution case and he has also stated that he do not know anything about torture given by the accused to Yasmin. He was also cross examined by prosecution at length and he has stated that he has not given statement before the police as per Ex.P7.

31. PW8-Nazeer Sheik, has stated that though he know the accused and deceased Yasmin. But he do not know anything about this case. It is very pertinent to note that to this PW8 Nazeer and PW9-Sushil who have not supported the prosecution, it is suggested in the cross examination by prosecution that on 17.11.2011 when they were coming towards the village after finishing their work, they found this accused No.1 is weeping near the well and when they enquired, he stated that his wife committed suicide by jumping into the well. Even in their statement Ex.P8, it is stated that accused was asking for the help to rescue his wife stating that she had fallen in a well and they found that just she was drowning in the well. Therefore, if at all the accused No.1 has committed any such act, he could not have been present near the well. If at all he was a wrong doer, he should not have been in spot. So this type of suggestion in the cross examination further creates doubt about the prosecution allegation about the deceased committing suicide because of any cruelty or harassment by the accused No.1/ appellant.

32. PW9-Sushil has not supported to prosecution case and he has also stated that he has not given statement as per Ex.P9 so he is also of same village.

33. PW10-Prabhu has clearly stated that he do no know about any marriage talk between accused No.1 and Yasmin. He has not given any statement before the police. He do not know anything about the case and Ex.P10 Marriage agreement is not in his writing. Even though he has stated that it not his writing, but it is marked at Ex.P10. How it is marked at Ex.P10 is not known. When the witness does not admit writing the document and his signature there is no question of marking the said document or signature. But learned Sessions Judge has marked it which is unknown to the procedure known to law. In the cross examination it is suggested that he was present at the time of marriage talk and he has written Ex.P10 and the amount was paid in his presence into the hands of accused No.2 and 3 and he participated in the marriage. He has denied everything. So according to prosecution the amount was given to accused No.2 and 3 which the Court cannot believe, so his evidence further makes the prosecution case doubtful.

34. PW11-Basheer Sab is also a villager of Torna village and according to prosecution, he was witness to the said Ex.P10, but he has denied it. Even though he has denied his signatures it is marked which is not permissible under law. But the learned Sessions Judge while recording the evidence marked it. Though he was also cross examined by prosecution, he has denied payment of any amount of dowry to accused No.2 and 3 and any harassment caused by accused. So the evidence of this witness further creates doubt about the prosecution case.

35. PW14 Mohd. Moulana who has performed the marriage of accused No.1 and Yasmin.

36. PW19-Shivkumar is the Tahasildar who conducted the inquest mahazar of dead body. He has stated that on 18.11.2011 morning 9.00 am to 11.00 a.m. he went to the said well and got lifted the body. So that itself indicate the body was not at all lifted till next day. So evidence of the parents of deceased that they saw the body on the same day appears to be only a exaggeration. He has stated that he has recorded the statement of panchas, but none of the panchas have supported the mahazar. In the cross examination he has admitted that the well is to the ground level only, there are no steps to the well. He has also clearly admitted that one may fall in the well by seeing the nature of well. So the possibility of this deceased falling in the well accidentally also cannot be ruled out in view of recovery of the M.O.1 and M.O.2 Khalsi and her slipper. None of the witness have supported the inquest mahazar.

37. PW20-Shaik Kaleem is the agriculturist who is the resident of Torna village. He has not supported the prosecution case. He has clearly denied about torture given by the accused or demand of money. He has clearly stated that he has not given statement as per Ex.P20.

38. PW21-Prakash has also not supported the prosecution case. According to prosecution, it is this witness who informed the parents of the deceased over a phone about Yasmin committing suicide, but he has denied it. Even he has denied the suggestion that when he went to the spot accused No.1 was present at the spot and he telephoned the father of deceased. He has clearly stated that he has not given the statement before police as per Ex.P21. His evidence further makes prosecution case more doubtful.

39. PW22-Gousuddin is admittedly the co- brother of complainant which is admitted by him in the cross examination. He states that at the time of marriage talk, it was agreed to give one tola of gold to accused and Rs.35,000/-, but the other witness PW15 says it is two tolas of gold. He states that one Hafeez, Kausar bee, Wasim, Wahed and one Panchal and others were present. He has stated that accused came there and taken the money. He states that he himself has handed over the money to Kausar bee the mother of accused No.1 who is accused No.2. So again this is contrary and inconsistence to the evidence of other witnesses regarding handing over the money. He has further stated that again the accused have started torturing her. This theory is already disbelieved by the Court. He has stated that accused started to torture Yasmin and she came to Nalegaon stating that accused are torturing her by demanding money. Again it is general and vague evidence of torture without particulars of torture. He has stated that he received the message of Yamin committing suicide. In the cross examination he has clearly admitted that Ex.P10 the “Joode Rakham” does not contains his signature. He has also admitted that there is no Dahez i.e. Hunda in Islamic religion. He has admitted that they are giving gift in the marriage. That “Joode Rakham” means gifting the money and Ex.P10 contains Joode Ki Rakham. He has also admitted that boy gives money to the girl in their religion which is called Meher. He do not know how much Meher is given by accused No.1 to Yasmin. So this person it appears was not at all present either at the time of marriage talk or at the time of marriage. Giving of money by him in the hand of accused No.2 which is totally inconsistency contrary to evidence of other witnesses. He has stated that he do no know about any panchayat made by the complainant nor he was present in any panchayat. But again he states that he made a panchayat at Nalegaon and the accused demanded money second time. Again this is not stated by any of the witnesses. He has also stated that accused No.1 was having fruit business at Pune. He do no know the business profit of accused No.1. He do not know anything about the accused No.1. he also do not know whether the Wasima and her brother of deceased Iftikar were residing with accused No.1 at Pune. He also admits the photo Ex.D2. He do not know the relationship between accused No.1 and Wasima. He has denied the suggestion that earlier also the deceased tried to commit suicide twice and was rescued. So his evidence will not take prosecution case any further.

40. PW23-Vikram is the Police Constable who has translated complaint from Marati language into Kannada language.

41. PW24-Shivaji is the Police Constable who has handed over FIR to the Court.

42. PW25-Ramesh is the Village Accountant who has issued the certificate regarding land of Balprasad Kachurulal at Torna where the well is situated and it is at Ex.P22 and Ex.P23.

43. PW26-Basappa Burli, PSI who has registered the complaint and handed over further investigation to Dy.S.P. Bhalki. He has clearly stated that the incident happened on 17.11.2011 at about 3.00 p.m., but they have not received any information till the complaint was received in the morning 18.11.2011. He has admitted that on 19.11.2011 itself they have arrested accused No.1 and with the help of staff. So it is not that the accused was absconding.

44. PW27-Ramesh, Dy.S.P. Bhalki, who has taken further investigation. He has stated about visiting the spot on 18.11.2011 and prepared spot panchanama. But none of the panchas have supported the Ex.P3 and Ex.P4 panchanama. He has stated about recording of statement of witnesses, but none of the villagers of Torna have supported the case or stated about giving such statement supporting the prosecution case. He has simply collected the photos, wedding cards and engagement and filed a charge sheet. He has stated that he do not know whether Yasmin fell down in the well, when she went to bring the water. He do not know have any idea that the villagers go to the well for taking water. He has clearly admitted in the cross- examination that the possibility of accidental fall of a person who had gone to the well for taking water by seeing the position and condition of the well also cannot be ruled out. So his evidence and admission in the Cross examination clearly indicates that he has not done any investigation and he do not know how and why the Yasmin fell down in the well. According to him, it may be a accidental fall also. He has also clearly admitted that he has not recorded the statement of neighbors house of accused No.1. This also clearly indicates the Lacuna in the investigation. Because if at all any such torture or harassment was committed by the accused No.1 or any other accused, then Yasmin could have informed it before the neighbours or the neighbors could have come to know about it. But the investigation officer has not taken any steps to record the statements of neighbours. He states that he has not recorded their statements for the reasons best known to him. Whatever witnesses from that village were examined before the Court have also stated that they do not know anything about the ill-treatment or harassment. Therefore, the investigation done by the I.O. further creates doubt about the allegations made by prosecution. This is all the evidence of prosecution.

45. There are principles stated by the Hon’ble Supreme Court of India as to how to appreciate the evidence in these type cases.

In the decision reported in 2002(2) Supreme 528 in the case of Mungeshwar Prasad Chaurasia and another v. State of Bihar, it is held as under:

“Indian Penal Code, 1860 – Sections 304B498201/34 – Husband and his both parents convicted for dowry death of wife of husband – Appeal only by parents – Deceased was married in 1992 and died of unnatural circumstances on 24.1.1995 – Questions whether appellants subjected deceased to harassment with demand for dowry ‘soon before her death’ – Witness examined on that point PW1 to PW4 stated about husband having demanded dowry a few months prior to her death but as regards appellants, witnesses said that soon after marriage, appellants asked for more dowry – Demand made was beyond range of soon before death’ of deceased – Their conviction under Sections 304-B and 498A could not be sustained – As section 201 IPC could not be separated from substantive offences, conviction could not be sustained”

In 2006(3) Supreme 763 in the case of T.

Aruntperunjothi v. State though S.H.O, Pondicherry, wherein it is held as under:

 Indian Penal Code, 1860 – Section 304-B – Dowry death – Essential ingredients of offence – Prosecution must establish that deceased must have been subjected to cruelty or harassment by her husband or relative of her husband soon before her death – What would constitute ‘soon before her death’ depends upon facts and circumstances of each case – Deceased was married to appellant on 4.9.1992 and gave birth to female child at her parents house – She was brought back to appellant’s home in February, 1994 and on 14.3.1994, she committed suicide in appellant’s house –

Appellant or his mother PW1 were not at home when deceased committed suicide – Family members of deceased allowed cremation of dead body and took back all articles which were given at time of the marriage and did not lodge any report – Appellant himself informed police and Deputy Tahasildar cum Executive Magistrate conducted enquiry and on his report case was registered –

Evidence led by prosecution failed to establish involvement of appellant as regards alleged demand of dowry

– Trial court did not give cogent reason for disbelieving evidence of PW1 , mother of appellant, that deceased was short tempered girl and evidence of PW2 who had met deceased ½ hour before incident and had found her normal – If it was case of misunderstanding between accused and deceased same would not bring case under dowry death –

Conviction was liable to be set aside.

In 2009(4) Supreme 529 in the case of Suresh Kumar Singh v. State of U.P, wherein it is held as under:

” (a) Indian Penal Code 1860, Section 304-B – Proximity to death of the deceased is the pivot indicated by the expression ‘soon before her death’ – The legislative object is to emphasize the idea that her death should, have been the aftermath of such cruelty or harassment.

(b) Indian penal Code 1860 – Section 304-B – it is necessary for the prosecution to bring on record that the dowry demand was not too late and not too stale before the death of the victim.

(c) Indian penal Code, 1860 –

Section 304-B -Incidence of harassment one year prior to death does not satisfy the proximity test.

(d) Indian penal Code, 1860- Section 304B and section 113B Indian Evidence Act 1872 – In order that these provisions are attracted, death should be within seven years of marriage and the cruelty before death should satisfy the proximity test.”

In 2010 Crl.L.J 3419 in the case of Durga Prasad and another v. State of M.P ,wherein it is held as under:

“Penal Code (45 of 1860), Ss.304-B, 498-A – Evidence Act ( 1of 1872), S.113B- Dowry death – Cruelty or harassment soon before death –

Cruelty or harassment soon before death – Must be proved to be in relation to demand of dowry – Accused alleged to have driven his wife to commit suicide by subjecting her to cruelty – Except bald statement made by mother and brother of deceased about cruelty and harassment to deceased no other evidence adduced by prosecution – prosecution has thus failed to satisfy requirements of S.304-B of IPC and Sec. 113-B of Evidence Act – Accused liable to be acquitted.”

In the light of these decisions, if the evidence of the prosecution witnesses is considered, then it is evident that there is no facts or circumstances to show proximate live link between the effect of cruelty or harassment for or in connection with dowry demand and death of the victim. There is no evidence regarding harassment or treating her with cruelty. Not a single neighbour of the deceased family were examined or supported the case of the prosecution. Even demand of any money at the time of marriage is also doubtful. There is no material to prove the charge levelled against the accused. There must be nexus between the cruelty meted out by accused and that the cruelty induced the victim to commit suicide. Not a single independent mediator or panchayathdars have come before the court and stated about this. In order to raise presumption under Sec. 304-B of IPC and Sec. 113B of Evidence Act the prosecution has to rule out possibility of death occurring otherwise than in normal circumstances. The prosecution has obliged to show that soon before occurrence there was cruelty or harassment and only in that case the presumption under Sec. 113-B of Indian Evidence Act operate. Of course, soon before is a relative term and it would depend upon circumstances of each case and no strait jacket formula can be laid down. There must be proximate and live link between the effects of cruelty based on dowry demand and the death . If the alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of women concerned, it would be of no consequence. There is no evidence to establish the demand of dowry or ill-treatment soon before the occurrence. Of course, these things take place within four corners of the house . But there must be some evidence to show any such ill treatment or harassment which can make the woman to commit suicide. Simple one stray sentence or general or vague statement that deceased told them in this regard will not help the prosecution. No injuries were found on the body . No complaint was lodged prior to this incident and the exact period when such panchayath were held is not forthcoming. The evidence of the prosecution about holding of panchayath itself is doubtful. Apart from that there is no whisper about accused No.2, 3, 4, 5 and 6 and their role .

46. The learned counsel for the accused /appellant has also relied upon the following decisions, wherein it is stated as under:

2011 (1) criminal 262 Rakesh Chand & another V/s State of Punjab.

Criminal Procedure Code, 1973- Sectio 374- Indian Penal Code, 1860-Section 304-B/201- Dowry death-Conviction and sentence – Validity- appreciation of evidence-conviction based on only statements of parents of deceased – Dowry demand soon before of incident nor established – Acquittal the accused for offence of murder- Consideration of – Held – since no demand of dowry established just before the death of deceased as such conviction and sentence imposed by trial court and confirmed by High Court is liable to be set aside- Acquitted the accused. (Para4, 5 and 6) 2007 Criminal 444 Biswajit Haldar @ Babu Halder and Others V/s State of West Bengal.

Indian Penal Code, 1860-Section 304B read with section 113B of Indian Evidence Act, 1872, Scope under-Held – If a married woman dies in an unnatural circumstances at her matrimonial home within 7 years from her marriage and there are allegations of cruelty or harassment upon such married woman for or in connection with demand of dowry by husband or relatives of husband the case would squarely come under “dowry death” and there shall be presumption against the husband and relatives. (Para-11 and

12) Indian Penal Code, 1860 – Section 304B – Dowry death – Assessment of -Held – Mere evidence of cruelty and harassment is not sufficient to bring in application of section 304b – It has to be shown in addition that such cruelty or harassment was for or in connection with the demand of dowry. (Para-13) 2007 Criminal 656 Shivanand Mallappa Koti V/s State of Karnataka.

Indian Panel Code, 1860 – Section 498-A – dowry demand-Scope of- Held-Section 498A IPC does not specifically speak of a dowry demand – It speaks of unlawful demand for property and valuable articles. (Para-8) 2011(3) Crimes 791 (M.P.) Mohan Lal V/s state of M.P.

Indian Panel Code 1860-Section 304BV and 498a – Dowry death – Deceased died unnatural death by poison by suicide – According to prosecution case there was dowry demand of Rs.15,000/- – Appeal against conviction – Father of deceased present during inquest did not express any suspicion about dowry death or cruelty immediately proceeding death. He claimed to have come to know about demand from his other daughter and her husband – Other daughter’s evidence did not inspire-confidence and possibility of her being tutored could not be ruled out- dAs regards presumption against accused, he was required to establish his plead but decree and character of proof could not be equated with degree expected from the prosecution – Prosecution having failed to discharge its burden could not be permitted to fall back upon statutory presumption-Conviction could not be sustained, 2006 Criminal 226 Harjit Singh V/s State of Punjab.

Indian Penal Code, 1860-Section 304B– Indian Evidence Act, 1872-Section 113-B – Dowry death – Presumption under – Ingredients of – Scope and effect of – Held – It will be apparent from if prosecution is liable to establish circumstances as set out in section 304B IPC., (Para-17) Indian Penal Code, 1860- Section 304-B– Dowry death – Word “soon before” – Scope of – Consideration of Held-Would normally imply that interval should not be much between the cruelty or harassment concerned and the death in question – There must be existence of a proximate and live link between effect of cruelty based on dowry demand and the death concerned. (Para –

20) Criminal Procedure Code, 1973 – Section 215 – Omission to frame charge U/s 306 IPC – Legality of -Effect of – Held – May not result in failure of justice or prejudiced caused before invoking the provision – It is necessary to establish the ingredients. (Para-26) Words and Phrases – “Dowry” – Customary payments on ceremonies do not come within the preview of dowry. (Para-19) 2004 Criminal 288 Surinder Kaur and Another V/s State of Haryana.

Indian Penal Code, 1860 – Section 304B read with 34 – Dowry Death – About 2 and half years before of death – Some alleged harassment for lack of dowry- Held – Not sufficient ground to hold appellants guilty for offence. (Para-7) Indian Penal Code, 1860 – Section 304-B read with 34 – Dowry death – Difference between evidence between acquitted and convicted person was the name registered in FIR – Held – Presence of name in FIR not sufficient to convict. (Para-9) 2004 Criminal 300 Ashok Vishnu Davare V/s State of Maharashtra.

Indian Penal Code, 1860- Section 498-A – Cruelty – Time of beating was not clear from the evidence – Held – Evidence can’t be treated as evidence indicating the harassment meted out to deceased. (Para 8) Indian Penal Code, 1860 – Section 498-A – Cruelty – Two letters – No allegation of harassment or demand – Sick from 8 or 10 days but not worry about the same – But in a letter she did request one of her brothers to visit her – Held

– Not in support of prosecution case (Para-9) Indian Penal Code, 1860-Section 498-A – Cruelty – General allegation of demand of money and payment of the same by her family – Held- Conviction on such general allegation not good. (Para-10) Evidence – Reliability of – Improvement in the statement to the police – And in complaint no such allegation has been made – Held – Not safe to rely on the same. (Para-12) 2008(2) Crimes 365 (SC) Narayanamurthy V/s State of Karnataka & Another.

(b) Indian Penal Code, 1860 – Sections 302304B, and 306 r/w section 113BIndian Evidence Act, 1882 – Ingredients necessary for invoking the provisions discussed. (Paras 17 and

18)

(c) Indian Penal Code, 1860 – Section 304B r/w section 113BIndian Evidence Act, 1882 – No cruelty or harassment for or in connection with the demand of dowry established

– Prosecution failed to prove involvement of A-1 in the death of Jagadeshwari beyond reasonable doubts – Impugned judgment cannot be upheld. (Paras 21 and 30) 2006 (4) Crimes 1 Vishwambar V/s State of Karnataka.

Indian Penal Code, 1860 – Sections 304-B498-A – Death of deceased, a married woman by committing suicide – Prosecution case that deceased was married to accused six years prior to incident and accused used to harass deceased for not getting half tola of gold as dowry – Allegation that accused had developed an illicit relationship with another woman and she was staying along with deceased and accused and deceased unable to bear sight of illicit relationship, committed suicide – Conviction by Trial Court – Appeal against conviction – Accused and deceased lived together for almost six years after marriage – Preposterous to expect accused to inflict cruelty on deceased for sheer half tola of gold – Theory of dowry harassment appeared to be artificial – No ground to convict accused u/s 304- B for dowry death only because death occurred with seven years of marriage – Even tough presumption that illicit relationship appeared to be main reason prompting deceased to convict suicide however no cogent proof of illicit relationship – No evidence of prosecution witnesses that they had personal knowledge of said relationship – Mere presumption in absence of cogent evidence not sufficient to convict appellant for mental cruelty – Conviction being bad in law could not be sustained.

(Paras 6, 7 8)

2007(1) Crimes 110 (SC)
Appasaheb    &   Another                V/s      State       of
Maharashtra.

(i) Indian Penal Code, 1860 – Section 304b – Dowry death – Appellant convicted under – Deceased died as a result of insecticide poisoning

– Evidence of mother and father of deceased that when deceased visited her parents she used to narrate ill treatment and beating for bringing money from her parents – conviction by trial Court and upheld in appeal by High Court – Appeal – Both witnesses deposed that deceased was receiving ill treatment as a result of “domestic cause” as regards domestic cause they explained that there was a demand for money to meet expenses – Evidence did not show that any demand for dowry was made – essential ingredient of dowry death i.e. demand for dowry was not established – Conviction could not be sustained. 2004 (4) Crimes 113 (SC) State of Rajasthan V/s Teg Bahadur & Others.

Indian Penal Code, 1860 – Sections 304B and 408-A – Dowry death – Deceased, aged 18 years, got married to respondent on 5.5.1993 died on 9.9.1994 in her matrimonial house and was cremated without intimation to her parents – trial Court convicted accused holding that deceased died in unnatural circumstances due to fall in well and u/s 113-B Evidence Act presumption could be made – High Court set aside conviction – State appeal – FIR lodged and proved was not the first report and other report prior

47. So in the light of these settled principles regarding appreciation of the evidence and also the principles stated by the Hon’ble Supreme Court of India referred earlier if the evidence of prosecution is considered then it is evident that the prosecution has miserably failed to prove the cruelty as defined under Section 498-A IPC. The entire evidence of the father and mother is vague and general one, which will not constitute any cruelty, harassment or particulars of cruelty. And in the absence any of the circumstances supporting such evidence and also in the absence of other witnesses corroborating them, in my considered view, the prosecution has failed to prove that the deceased was subjected to cruelty or harassment of any type and there was any demand for dowry. In the absence of any legally admissible evidence, there is no question of accused No.1-appellant causing any abetment to deceased to commit suicide. The evidence of prosecution witnesses regarding payment dowry is totally inconsistent and cannot be believable at all. On the other hand accused No.1 was doing a fruits business at Pune and he was having good business. In fact, the deceased sister and brother also were staying with them for years together. The brother who was with them by name Iftikar-PW18 has clearly stated that when they are residing with accused No.1, deceased Yasmin and her husband were in good terms. In fact it is suggested that they resided with him for four years, but PW15 the father stated that they stayed only for nearly one and half years. So there is no such cruelty or harassment for any demand of dowry or any abuse or assault by any of the accused much less by this accused No.1 for that purpose. The entire evidence of prosecution witnesses is full of material contradiction inconsistency about material particulars. None of the villagers of Torna or any other witnesses have stated anything about the act of accused which could be inferred as cruelty or harassment or demand of dowry so as to drive deceased to commit suicide. There is no question of accused abating the suicide. On the other hand, the deceased was in the parents house for delivery of the child and even after delivery accused came and stayed there for 15 to 20 days. So that itself indicates that he never had any intention to cause any harassment or cruelty. On the other hand he was in good terms with wife. Absolutely, there is no iota of evidence to prove that the deceased died because of the cruelty or harassment caused by the appellant soon before her death or she was subjected to cruelty to meet unlawful demand of dowry or the accused abated in such a suicide.

48. As admitted by the other witnesses, the very scene of offence indicates that the soil is a black soil, the said well was on the ground level and it is not covered by anything. Any person can fall in the well if there is any slip. Even the Dy.S.P. PW27-Ramesh in the cross examination clearly admitted at page 2 and para 2, that he do not know deceased Yasmin fell down in the well when she went to bring the water. He has also clearly stated that there is a possibility of accidental fall of a person who had gone to the well for taking water by seeing the position and condition of the well. Even he has not recorded the statement of neighbours of the house of the accused No.1. So, these things clearly indicates the possibility of this deceased going to the well to bring the water slipped in the well also cannot be ruled out.

49. PW15 his father has also admitted in the cross examination, he do not know whether Yasmin went to the well for taking water along with steel pot. But steel pot was found in the well. He has also admitted that it is true that one can fell in the well, if there is a slip near the well while taking to water, if the said person was wearing slipper. Even PW16-Rehana the mother of the deceased has also admitted that she has seen that well at Torna and it is old well surrounded by black soil and nobody go to well to bring water. If any body goes to the well for bringing water they will fall in the well. So the presence of the steel pot and slipper of the deceased and in view of the situation of the well the possibility of this deceased going to the well to bringing water for the reasons known to her and slipped and fell into the well also cannot be ruled out.

50. The I.O. PW19-Shivkumar, Tahasildar who inspected the well and got lifted the body from the well has admitted in the cross examination that the well is to the ground level only and there is no step to the well. He has admitted that one can accidentally fall in the well by seeing the nature of the well. So in the absence evidence regarding harassment and cruelty or abetment or demand of dowry there is possibility of the deceased falling in the well accidentally cannot be ruled out. Therefore, I hold that the prosecution failed to prove beyond all reasonable doubt that the appellant is guilty of the offences punishable under Sections 498A304B and 306 of IPC.

51. I have perused the judgment passed by the learned Sessions Judge. The learned Sessions Judge has not discussed the cross examination of PW15, PW16, PW17 and PW18. He has considered only examination-in-chief which is also very vague and general one regarding any harassment or torture. The evidence regarding demand of dowry is also vague and general one and it consisted of inconsistent evidence. Simply the Sessions Judge has stated that he come to the conclusion that the accused died because of the torture given by the accused. Regarding proof of offence under Sections 498A304B and 306, simply at para No.7 he has stated that the evidence of PW15 to PW18 and PW22 fairly establishes that accused No.1 only demanded dowry and there is no role of accused No.2 to 6 regarding demanding of dowry and torture, which is again not tenable in the eye of law. Though he has come to right conclusion that accused No.2 to 6 have not committed any offence, but he has misdirected himself and come to wrong conclusion that accused No.1 has committed offences. The learned Sessions Judge at para No.7 has wrongly come to the conclusion that accused No.1 has not explained with regarding to the circumstances of her death and though burden lies on him to prove the same which is totally opposed to the settled principles of law regarding burden of proof. The learned Trial Judge has wrongly come to the conclusion that from evidence of PW15 to PW18 and PW22 it can be gathered that accused No.1 has received dowry of Rs.35,000/- at the time of marriage and he tortured deceased demanding dowry and harassed her which is not based on any iota of evidence. He has wrongly come to the conclusion because of this cruelty she committed suicide by jumping into the well. The learned Sessions Judge has made a separate case stating that as there was some defense by the accused that the sister of deceased Yasmin by name Wasima and accused No.1 eloped with her, so she was suffering from mental agony and the act of accused No.1 constitute cruelty. But accused need not establish the prosecution case. Simply the accused has taken some alternative defense that the sister of this deceased was having illicit relationship with accused No.1 which is denied by her parents and brother cannot be ground to come to the conclusion by the Sessions Judge because of that act she was mentally disturbed and for that reason she committed suicide. It is not the case of prosecution or any of the witnesses admitted it. The learned Sessions Judge cannot make out a fresh case and charge against the accused which is not the prosecution allegation or the charge. The allegation of the prosecution is that because of harassment and cruelty for demand of dowry and the cruelty caused in connection with the dowry, the deceased committed suicide. It is not the prosecution case or evidence that because of appellant having any affair or illicit relationship with the sister of the deceased she died. It is not prosecution case at all. The court cannot make out a new case and find out alternative case and convict the accused when the prosecution has failed to prove the charge leveled against the accused. It is settled principles of law that prosecution has to stand or fall on it own leg and the prosecution has to prove its case and the charges leveled against the accused as alleged beyond all reasonable doubt. It cannot take any weakness of the defense of the accused. There is lot of difference between may be true and must be true. The prosecution has to prove its case as alleged beyond all reasonable doubt. If the evidence of prosecution witnesses creates doubt in the mind of the Court that benefit of doubt will have to be given to the accused. So keeping in mind, these settled principles regarding appreciation of evidence in criminal trial, if the judgment of the Sessions Court is considered, it is evident that though he has disbelieved the evidence of prosecution witnesses regarding role of the accused No.2 to 6, but he has wrongly convicted the accused by making of a new case which has no basis at all. Therefore, the said judgment needs to be set aside as it is not based on the sound principles regarding appreciation of evidence. Accordingly, I answer these points holding the prosecution has failed to prove charges beyond all reasonable doubt and as their evidence creates doubt in the mind of Court, the benefit of doubt should be given to accused. Therefore the judgment of Sessions Court needs interference by the appellate court and is to be set aside. Accordingly, I pass the following…

ORDER The appeal is allowed. Consequently, judgment of conviction and sentence passed by the Additional District and Sessions Judge, Bidar in S.C.No.87/2012 dated 01.03.2013 convicting the accused No.1 / appellant for the offences punishable under Sections 498A304B and 306 of IPC is hereby set aside. Consequently, the accused No.1 / appellant is acquitted of the said offences.

The bail bond of the accused No.1 / appellant and the bond executed by the surety, if any, is hereby cancelled..

The fine amount if any is already deposited by appellant, the same is ordered to be refunded to the accused No.1/appellant after proper identification and with acknowledgment.

Send back the records of the trial court forthwith.

Sd/-

JUDGE SMP

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