Saturday 31 December 2016

Whether cruelty as per S 498A of IPC can be inferred if wife commits suicide?

Considering   evidence   of   material   witnesses   namely   PW­1
Ashish and PW­4 Dr. Yadavrao on the point of cruelty provided by accused
to  deceased  Vandana  and on  demand of  dowry, we  do not  find their
evidence to be sufficient to attract provisions of Sections 498­A and 304­B
of the Indian Penal Code.  As in the evidence of neither of these witnesses,

there are specific allegations of cruelty as required under the law to be
established by the prosecution.  The existence of cruelty cannot be proved
merely because suicide has been committed or deceased died of unnatural
death.     Undoubtedly   to   a   large   extent,   the   concept   of   cruelty   will   be
subjective, but no claim of cruelty can be made  within objective basis.
Thus, merely because victim has taken a drastic step of ending her life, it
cannot be presumed that the treatment that was being given to her was
cruel, so as to attract punishment provided for, in Section 498­A of the
Indian Penal Code.   Explanation to Section 498­A of Indian Penal Code
makes it clear that cruelty means “any willful conduct, which is of such a
nature as is likely to drive a woman to commit suicide or to cause grave
injury or danger to life, limb or health (whether mental or physical) of the
woman”.  The words “willful conduct” and “likely to” used in explanation
clause (a) are significant.   The words “likely to” used in the said clause
show that clause (a) of explanation to Section 498­A of the Indian Penal
Code requires a willful conduct to be of such a nature as would likely to
drive a woman to commit suicide or to cause grave injury or danger to life,
limb or health.   The extent of cruel treatment needs to be objectively
assessed in order to see whether a reasonable or average person would
likely  to be driven  to  commit suicide  or cause grave  injury  to her on
account of treatment.  
Had
the allegations of demand of dowry and harassment to Vandana were
established thereby making an offence under Section 498­A of the Indian
Penal Code, the things would have been different.  However, in the absence
of such evidence and since we do not find dowry demand and harassment
to Vandana to be established, provisions of Section 304­B of Indian Penal
Code cannot put into play so as to attract presumption as to dowry death.
It is necessary to show that soon before the death, deceased had been
subjected by such person to cruelty or harassment for or in connection
with, any demand for dowry.  When this essential ingredient has not been
established in the present case, the question of drawing any presumption
by invoking aforesaid provisions does not arise at all. 
Even otherwise mere evidence of cruelty and harassment is not sufficient to
bring in application of Section 304­B of the Indian Penal Code.  It has to be
shown in addition that such cruelty or harassment was for or in connection
with the demand for dowry.   Since the prosecution failed to prove that
aspect, the conviction as recorded cannot be maintained.  

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.08 OF 2005
 Dnyaneshwar @ Nana Kashinath Jumade V State of Maharashtra,

  CORAM  : B.P. DHARMADHIKARI AND
   P.N. DESHMUKH, JJ.

Dated :     AUGUST 19th, 2015.
Citation:2016 ALLMR(CRI)4783

This   appeal   takes   exception   to   the   judgment   dated
20/12/2004   passed   in   Sessions   Trial   No.104/2000   by   the   learned
Additional Sessions Judge, Pusad, vide which the appellant/accused viz.
Dnyaneshwar @ Nana Kashinath Jumade was convicted for the offence
punishable   under   Sections   498­A   of   the   Indian   Penal   Code   and   was
sentenced to suffer rigorous imprisonment for three years and to pay fine of

Rs.3,000/­, in default to suffer rigorous imprisonment for one year, and he
was also convicted for the offence punishable under Section 304­B of the
Indian Penal Code and was also sentenced to suffer rigorous imprisonment
for life. 
The   accused   was   charged   on   the  count   that  he   being   the
husband  of  deceased  Vandana,  during  the  period from 17/06/1997  to
15/08/2000   at   village   Partur,   District   Jalna,   where   he   was   serving   as
teacher, subjected the deceased to cruelty  by his willful conduct, which is
of such a nature as is likely to drive Vandana to commit suicide on the
count of her failure to fulfill demand on account of balance dowry amount
to the extent of Rs.15,000/­ and a four wheeler vehicle.  
Accused   was   further   charged   on   the   allegation   that   on
15/08/2000 at about 11:00  a.m. in the parental home of deceased at
Umerkhed,   District   Yavatmal,   deceased   died   sustaining   burn   injuries,
otherwise   than   under   normal   circumstances   within   seven   years   of   her
marriage and the death is caused as accused subjected Vandana to cruelty
and harassment soon before her death till 21/07/2000 on her failure to
fulfill illegal demand, as aforesaid.  
02] Case of the prosecution can be briefly stated as under :
Deceased Vandana was married to accused on 17/06/1997 at
Pandharkawada, District Yavatmal.  The marriage was settled in the house

of parental uncle of deceased viz. Dr. Vijay Mankar, when it was decided to
give dowry in terms of cash to the tune of Rs.80,000/­ and a four wheeler
vehicle.  Out of said amount, Rs.65,000/­ in cash was given to accused in
marriage and balance amount of Rs.15,000/­ was agreed to be paid along
with four wheeler vehicle after marriage.  
After the marriage was solemnized, Vandana cohabited with
accused at Partur, District Jalna, where accused was serving as a teacher in
Navodaya Vidhyalaya and was blessed with a daughter viz. Shakshi.  
03] It is the case of prosecution that accused subjected deceased to
cruelty on account of balance of dowry amount and four wheeler.  Said fact
was disclosed by deceased to PW­1 Ashish Raut, her younger brother and
adopted son of PW­4 Dr. Yadavrao Raut, who alleged that his wife Dr.
Vimal, after the death of parents of deceased in her childhood, had brought
up her.  Dr. Vimal w/o Yadavrao Raut is sister of natural father of Vandana
and the complainant.  
According to the prosecution's case, on 21/07/2000, Vandana
for the last time spoke to PW­1 Ashish on phone informing him of the
cruelty sustained by her from the accused and requested him to bring her
from Partur.   Thus, on 25/07/2000, PW­1 Ashish went to Vandana and
brought her to Umerkhed, when accused is stated to have said to Vandana
that she should not show her face unless she brings balance amount of

dowry and four wheeler vehicle and extended threats of dire consequences
on her failure to comply with the same.  Vandana accompanied her brother
Ashish   to   Umerkhed,   where   on   15/08/2000   she   committed   suicide   by
setting her ablaze and was admitted to Rural Hospital, Umerkhed, where
she was declared dead.
04] On the strength of information of death of deceased received
from the Medical Officer, Government Hospital by PW­6 Chandansingh
Bais, Police Inspector, A.D. No.26/2000 was registered by him at [Exh.25]
and investigated the same.   During the course of which, he visited the
hospital and drew inquest­panchnama [Exh.28] in presence of the panchas
and   sent   dead   body   of   deceased   Vandana   for   postmortem,   of   which
postmortem report is issued by the Medical Officer at [Exh.29].  He then
visited the spot, which was in the house of PW­4 Dr. Yadavrao, drew spotpanchnama
[Exh.50] and seized ash, plastic can containing kerosene, one
match sticks box and one burn match stick from the spot under seizurepanchnama
[Exh.51].  
On 18/08/2000, PW­4 Dr. Yadavrao produced one envelope
[Exh.52] addressed to him along with one letter therein [Exh.55], which
came to be seized under seizure­panchnama [Exh.53] in the presence of
panchas and Dr. Yadavrao.

On 23/08/2000, PW­1 Ashish lodged report to police vide
Exh.39.   On the basis of said report, offence came to be registered vide
Crime No.89/2000 for the offences punishable under Section 304­B of the
Indian Penal Code and was further investigated by PW­6 Chandansingh
Bais, P.I.  On the same day i.e. on 23/08/2000, PW­1 Ashish produced one
diary [Exh.41] and four letters alleged to be written by deceased, which are
at Exh.42(1) to Exh.42(3) and Exh.44, which came to be seized under
seizure­panchnama [Exh.45].
On 28/08/2000, accused came to be arrested under arrestpanchnama
  [Exh.34].     During   the   course   of   investigation,   marriage
invitation card of deceased with accused came to be seized, which is at
Exh.33.   On recording the statements of witnesses, it transpired to the
Investigating Officer that after marriage of deceased, she was subjected by
the accused to cruelty on account of demand of dowry, due to which she
committed suicide, and thus on collecting postmortem notes [Exh.61] and
on completion of investigation, charge­sheet came to be filed against the
accused   before   the   learned   Court   of   Judicial   Magistrate   First   Class,
Umarkhed.  In the course of time, case came to be committed for its trial to
the learned Sessions Judge.  Charge was framed against the accused vide
Exh.46  for  the  offences  punishable   under  Section  498­A,  304­B  of  the
Indian Penal Code to which he pleaded not guilty and claimed to be tried.

It is the specific defence of accused that during her lifetime, Vandana was
suffering from epilepsy disease, due to which she committed suicide.  The
learned Trial Court, on considering the evidence and documents on record,
convicted the appellant, as aforesaid.  Hence, this appeal.
05] Heard   learned   Senior   Counsel   Mr.   Anil   Mardikar   for   the
appellant and learned Additional Public Prosecutor Mr. H.D. Dubey for the
State.  According to the learned Counsel for the appellant, the learned Trial
Court did not appreciate the evidence in its proper perspective and has
discarded the evidence of the defence witnesses without sufficient cause.  It
is also submitted that the prosecution has not examined Dr. Vimal, wife of
PW­4 Dr. Yadavrao, who had brought up Vandana after the death of her
parents in her childhood, though according to the case of prosecution, said
Dr. (Mrs.) Vimal at the time of incident was present.  It is submitted that
when the incident took place on 15/08/2000, there is no convincing reason
put forth by the prosecution for lodging belated F.I.R., which came to be
lodged by Ashish on 23/08/2000.   It is also demonstrated as to why no
investigation was carried out in A.D., which came to be registered on the
death of deceased on 15/08/2000 itself, and as to why prosecution had not
examined   independent   witnesses,   though   were   available,   or   had   not
recorded their statements.   It is also submitted that after the death of
Vandana, information of her death was given to accused through defence

witness   DW­4   Prakashchandra   Bhatt,   at   around   12:30   noon,   however,
before accused could reach to the house of Vandana, she was cremated at
06:00 p.m., in spite of her relative having being aware of the fact that
approximately 6 to 7 hours are required to reach Umerkhed from Partur by
a   private   vehicle.     It   is   also   contended   that   even   otherwise   from   the
evidence   of   PW­4   Dr.   Yadavrao   or   from   PW­1   Ashish,   who   are   only
witnesses   relied   by   the   prosecution   on   the   point   of   ill­treatment   and
demand of dowry, their evidence is not convincing to be acted against the
accused.   With reference to diary [Exh.41] and with reference to letters
[Exh.42(1) to Exh.42(3), Exh.44 and Exh.55, it is contended that contents
of these letters cannot be read since not proved and is further contended
that   in   view   of   evidence   on   record,   since   there   is   variance   in   the
handwriting of these documents, it was necessary to refer said documents
to handwriting expert to make a foolproof case that the writing in these
documents   is   of   none   other   than   deceased.     However,   as   no   such
investigation   is   carried   out,   these   documents   are   said   to   be   of   no
consequence.  
06] In the facts of appeal in hand, the learned Counsel for the
appellant has relied upon the following judgments and has thus contended
that the judgment of the trial Court needs to be set aside and quashed
acquitting the accused.

1. Biswajit Halder alias Babu Halder and others vs. State of
W.B., reported in (2008) 1 Supreme Court Cases 202.
2. Dudh Nath Pandey vs. State of U.P. reported in AIR 1981
Supreme Court 911.
3. Gurdeep Singh vs. State of Punjab and others, reported in
2012 ALL MR (Cri) 693 (S.C.).
4. Ramaiah alias Rama vs. State of Karnataka,  reported in
2015(1) Mh.L.J. (Cri.)257. 
07] Learned Additional Public Prosecutor on the other hand has
submitted that evidence of PW­1 Ashish and PW­4 Dr. Yadavrao clearly
establishes harassment sustained by deceased on account of non­payment
of dowry and four wheeler immediately prior to her committing suicide on
15/08/2000,   and  thus   submitted  that  evidence   of   these   two   witnesses
along   with   other   circumstantial   and   documentary   evidence   on   record,
which is in the form of letters written by deceased, establishes the charge
leveled against the accused and has thus prayed that appeal, being devoid
of merit, be dismissed.
08] Having considering the submissions advance, as aforesaid, we
with   the   assistance   of   the   learned   Counsel   for   both   the   sides   have
scrutinized the evidence and documents on record.  Having considering the
charge   [Exh.46]   leveled   against   the   accused,   we   find   that   apart   from
ingredients of Section 498­A of the Indian Penal Code, basic ingredients to

attract provisions of Section 304­B of the Indian Penal Code, which are
required to be proved by the prosecution are as follows :­
(1) the death of a woman should be caused by burns or fatal
injury or otherwise than under normal circumstances;
(2) such death should have occurred within seven year of her
marriage;
(3) she must have been subjected to cruelty or harassment by
her husband or any relative of her husband; and 
(4) such cruelty or harassment should be for or in connecting
with demand for dowry.
Alongside   insertion   of   Section   304­B   in   IPC,   the
legislature also introduced Section 113­B of the Evidence Act.  If
Section, 304­B IPC is read together with Section 113­B of the
Evidence   Act,   a   comprehensive   picture   emerges   is   that   if   a
married   woman   dies   in   unnatural   circumstances   at   her
matrimonial home within seven 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   the
husband or relatives of the husband, the case would squarely
come under “dowry death” and there shall be a presumption
against the husband and the relatives.
09] In the light of above required ingredients, we have scrutinized
the evidence of PW­1 Ashish, younger brother of deceased, who has stated
that his sister deceased Vandana was married to accused on 17/06/1997
and talks regarding settlement of marriage took place in the house of Dr.

Vijay Mankar at Pandharkawada.  He has stated that he is adopted son of
PW­4 Dr. Yadavrao Raut.  Due to death of his natural parents in the year
1972   or   1973,   he   and   deceased   were   thus   brought   up   by   PW­4   Dr.
Yadavrao and his wife Dr. Vimal.
He further stated that at the time of marriage of deceased, it
was decided to give Rs.80,000/­ to accused and a four wheeler, out of
which Rs.65,000/­ was decided to be paid at the time of marriage and
balance amount was decided to be paid with four wheeler vehicle after
marriage.   At the time of marriage, accused was working as teacher in
Navodaya Vidhyalaya at Partur, District Jalna and thus Vandana cohabited
with him at Partur.  PW­1 Ashish further stated that Vandana used to call
him frequently on phone informing that accused was troubling her for nonpayment
of balance money and four wheeler.   He further stated that on
21/07/2000, he received phone from Vandana calling him to take her away
from Partur with him, as she was being troubled by accused.   Thus, on
25/07/2000,   he   went   to   Partur   in   the   morning   and   came   back   with
Vandana with her daughter Shakshi, when accused is stated to have said
her that till the balance amount and four wheeler is not given to him, she
should not show her face.  He has further stated that on 15/08/2000, she
committed suicide by setting her on fire in the house of her parents at
about 10:30 a.m. to 11:00 a.m., and on her admission to the Government

Hospital, she was declared dead, upon whom last rites were performed on
the same day in the evening.  
On scrutinizing above referred evidence of PW­1 Ashish, it is
material to note that prosecution has admittedly not examined Dr. Vijay
Mankar, the uncle of deceased, in whose house, marriage of deceased came
to be settled with accused on having talk.  No explanation is put forth for
non­examination   of   such   material   witness   on   the   point   of   terms   of
settlement of marriage, more particularly when the accused is charged for
the offences punishable under Sections 498­A and 304­B of the Indian
Penal Code. We further find it material to note that, according to evidence
of PW­1 Ashish, he has stated that at the time of marriage talks, it was
decided to give cash of Rs.80,000/­ to accused, out of which, Rs.65,000/­
was paid at the time of marriage and balance amount and four wheeler was
to be paid after marriage.   Having considering his evidence, as such, we
find that there is no specific evidence establishing demand of said amount
of Rs.80,000/­ or four wheeler vehicle as is set out by prosecution, but we
find that above stated cash and four wheeler was decided to be given to
accused, when his marriage came to settled with Vandana.
On   this   point,   there   is   no   other   material   which   can   be
considered except for evidence of PW­4 Dr. Yadavrao, who had stated that
marriage of deceased was settled by her uncle Dr. Vijay Mankar in his

house   at   Pandharkawada,   at   that   time   he   was   not   present,   though,
according to him, he was present in the engagement ceremony. Though he
had stated that prior to engagement, settlement talks took place in the
house of Dr. Vijay Mankar, his further evidence, that it was settled in his
presence to give Rs.80,000/­ as dowry and a four wheeler, out of which
balance amount of Rs.15,000/­ and four wheeler was to be given after
marriage, does not find to be convincing, when he had admitted that at the
time of settlement of marriage, he was not present.   While according to
Ashish, the talks of settlement took place in house of his uncle Dr. Vijay
Mankar, where he has specifically stated that it was decided to give cash of
Rs.80,000/­ and four wheeler to accused.  In view of aforesaid evidence,
evidence of PW­4 Dr. Yadavrao to the effect that it was settled in his
presence to give Rs.80,000/­ and four wheeler does not inspire confidence.
Even otherwise from the evidence of neither of these witnesses, prosecution
can said to have brought on record that there was demand of Rs.80,000/­
or of four wheeler by the accused or his relatives, since in the evidence of
both these witnesses, it has come on record that said amount and four
wheeler was decided to be given to accused and as such does not establish
any demand by accused or his relatives. 
10] Reverting back to the evidence of PW­1 Ashish on the point of
ill­treatment, what is stated by him is that while Vandana was cohabiting

with accused at Umerkhed, on phone he was informed that accused was
troubling her on account of balance amount of dowry and four wheeler.
Said evidence of PW­1 Ashish is too short to find out as to what was the
nature of trouble alleged to be sustained by Vandana.  His evidence also
does not establish as to how long before the incident, which took place on
15/08/2000, he was informed of such harassment on phone by deceased,
except for stating that while deceased was cohabiting with accused, she
was frequently informing him on phone of trouble faced by her for balance
amount   of   dowry   and   four   wheeler,   there   is   absolutely   no   other
corroborative evidence on this aspect of the case.   In that view of the
matter, there is no specific evidence of ill­treatment being provided to the
deceased at the hands of accused. 
Similar is the evidence of PW­4 Dr. Yadavrao, when he has
stated   that   whenever   Vandana   was   coming   to   Umerkhed,   she   was
complaining   of   accused   of   giving   her   mental   and   physical   trouble.
According to him, said trouble was caused for non­payment of dowry and
four wheeler. However, above evidence of PW­4 Dr. Yadavrao appears to
be materially improved, when he has stated that in his statement recorded
by police, he has stated that at his house at Umarkhed, Vandana informed
that she was  mentally and physically  troubled by accused for want  of
balance amount of dowry and four wheeler, however, he cannot state any

reason why it is not recorded so.   Said omission is duly got proved by
defence from PW­6 Chandansing Bais, P.I., the Investigating Officer.   On
this aspect, evidence of PW­4 Yadavrao is also found contradictory, when
he denied to have stated in the statement that whenever he asked deceased
at Umerkhed, she was not telling him anything.  The above stated portion
marked 'A' of his statement has been duly got proved by the prosecution
from  PW­6   Chandansing  Bais, P.I.,  who   has recorded  his  statement  at
Exh.69, which reads as follows :
“when we used to ask her, she was not telling us”  
11] On scrutinizing further evidence of PW­1 Ashish, he has stated
that on the day of incident on 15/08/2000, his parents were in the house
and he has lodged report on 23/08/2000.   On the aspect of delay in
lodging report, Ashish has stated that as his mental condition as well as of
his parents and relatives was not good, no report could be lodged earlier.
Even otherwise, he has admitted that till giving of complaint, there was no
demand   in   writing   with   reference   to   balance   dowry   amount   or   four
wheeler nor he or any other family member had taken any legal action
against the accused nor had sent any notice to him.  Moreover, Ashish has
admitted that on the day of incident, police had visited their house and
drew spot­panchnama, however, police had not made any enquiry either
with him or with his parents, who were all present, nor they on their own

made any complaint to police.  Had it been a case of cruelty, having been
provided by accused to Vandana after her marriage till her death, there
appears to be no reason for Ashish or to his father Dr. Yadavrao or Dr.
Vimal   w/o   Yadavrao   Raut   to   disclose   said   fact   to   police,   though   they
belongs to an literate family, as Dr. Yadavrao and his wife Dr. Vimal at the
material time were Medical Officers.
Similar is the evidence of Dr. Yadavrao of there not informing
police not lodging report till 23/08/2000.  As such, only explanation put
forth by complainant Ashish as well as his father Dr. Yadavrao for not
lodging   report   of   incident,   which   took   place   on   15/08/2000   till
23/08/2000,   does   not   find   to   be   convincing   to   be   accepted   more
particularly when it is the case of prosecution that deceased prior to the
incident   was   continuously   subjected   to   ill­treatment   at   the   hands   of
accused on the count of non­payment of dowry and four wheeler.
PW­1 Ashish has further stated that after lodging report, he
found one diary [Exh.41] and four letters [Exh.42(1) to Exh.42(3) and
Exh.44] in the suitcase of Vandana, which he produced before the police,
which came to be seized under seizure­panchnama [Exh.45] in the night on
23/08/2000.   Admittedly, there is no reference of any of such letters or
diary in the report [Exh.39] that the said documents appears to have been
seized under panchnama [Exh.45] at 08:35 p.m. on 23/08/2000. While

report [Exh.39] is received by police on th same day at 08:15 p.m. and on
the basis of  which, F.I.R. [Exh.40] came to be registered.  PW­1 Ashish,
who claims to know handwriting of his deceased sister, as he along with
Vandana took education at Umerkhed, has deposed that on page nos. 22,
23, 25 to 28, 37 and 38, Vandana wrote about trouble sustained by her at
the   hands   of   accused.   Similarly,   according   to   Ashish,   letters   dated
09/06/1999, 28/03/1998, 12/04/1998 marked as Exh.42(1) to 42(3) and
letter dated 01/01/1999 [Exh.44] are in the handwriting of Vandana.  In
the Trial Court, such letters and diary came to be exhibited subject to
objection raised by the learned defence Counsel, which objection has been
duly considered by learned Trial Judge noting that as PW­1 Ashish, who is
younger brother of deceased Vandana, knows her handwriting, and has
identified   handwriting   from   the   diary   and   letters   to   be   of   her,   said
documents can be read in evidence.  Except as aforesaid, there is nothing
on  record   to   establish  that   the   writing   in   above   documents  are   of   by
Vandana and of nobody else.  Admittedly, no investigation is carried out on
this aspect and the reason put forth by the Investigating Officer for not
carrying   out   investigation   further   by   sending   said   handwriting   to   the
handwriting expert is stated by PW­6 Chandansing Bais, P.I. that as the
complainant Ashish in his statement has stated that the handwriting in
diary and letters was that of deceased Vandana, he did not find it necessary

to   send   diary   and   letters   seized   during   the   course   of   investigation   to
handwriting expert to seek his opinion.  Though, evidence of Ashish on this
aspect is also not clear, when he has admitted that handwritings on page
nos. 21 and 22 are different in look, however, according to him, it is of
Vandana.  He has further admitted that handwritings on page nos. 22 and
Exh.42(1) are similar.   In that view of the matter, it cannot be said that
handwritings   on   these   documents   are   same   and   thus   we   find   much
substance in the suggestion put to him that the handwritings in the letters
are different from each others and that the handwritings in diary [Exh.41]
and letters [Exh.42(1) to Exh.42(3)] are not in the writing of Vandana,
though said suggestions are duly denied by him. In the circumstances, it
appears   that   the   Investigating   Officer,   without   further   probing   with
reference to the handwritings on these documents, had relied upon the
bare statement of Ashish, who claims to know the handwriting of deceased.
In that view of the matter also, we do not find it safe to read the contents
of said documents, since there is nothing on record to establish that these
are written by deceased alone.  
Even   otherwise,   the   case   of   prosecution   with   reference   to
seizure   of   diary   and   letters   when   scrutinized   on   the   basis   of   further
evidence of Ashish, it  reveals that the suitcase, where from he claims to
have got the letters of deceased, was admittedly in the same room, where

the incident took place on 15/08/2000 and which was visited by the police.
Spot­panchnama is also drawn on the same day.   However, there is no
explanation put forth by the prosecution as to how these documents were
located on 23/08/2000 i.e. eight days thereafter and were produced by
Ashish to police.  
12] Evidence   of  PW­4   Dr.  Yadavrao   reveals   that  he   knew  late
Vasantrao Mankar and Smt. Sarita Mankar, who were natural parents of
Ashish and deceased Vandana and had died about 20 years before.  He has
stated that Vasantrao was younger brother of his wife Vimal and at the
time of his death, Ashish was aged four years and Vandana was aged
between 5­6 years, to whom he brought up.  
On   the   point   of   demand   of   dowry,   he   has   stated   that
Vandana's marriage was settled by her uncle Dr. Vijay Mankar and he was
not present at the time of settlement and, however, has stated that before
engagement ceremony, in his presence it was settled to give Rs.80,000/­ as
dowry and one four wheeler, out of which Rs.65,000/­ was to be given at
the time of marriage and balance amount and a four wheeler was to be
given after marriage.  Above piece of evidence of PW­4 Dr. Yadavrao does
not  inspire  confidence,  as  at  one  stage,  he  has  specifically  stated  that
marriage was settled at Pandharkawada by uncle of deceased and he was
not present, however, in another breath, he states that prior to engagement

ceremony, dowry was settled, as aforesaid.  His evidence on this aspect is
not convincing also for the reason that PW­1 Ashish did not state about
presence   of   Yadavrao   at   the   time   of   settlement   of   dowry   as   alleged.
Moreover, the evidence of PW­1 as well as PW­4 is contrary to each other.
As according to Ashish, at the time of marriage it was decided to give cash
of   Rs.80,000/­   to   accused   and   one   four   wheeler   and   after   marriage,
balance amount of Rs.15,000/­ and four wheeler was decided to be given.
While according to PW­4 Yadavrao, prior to engagement ceremony itself, it
was   decided   to   give   as   aforesaid.     Admittedly,   prosecution   has   not
examined Dr. Vijay Mankar, who in this situation appears to be the most
material witness, as he has settled marriage of deceased with accused and
has also performed it.  
On the point of ill­treatment, evidence of PW­4 Dr. Yadavrao
as already discussed above, is by way of material omission when he has
stated that whenever deceased was visiting to Umerkhed, she was not
complaining about mental and physical torture provided to her by accused.
Rest of his evidence corroborates with the evidence of Ashish on the aspect
of Ashish on 21/07/2000 receiving telephonic message from Vandana and
about   his   visiting   to   Partur   and   to   bring   her   back   to   Umerkhed   on
25/07/2000.  

13] On the point of incident, PW­4 Yadavrao has stated that on
15/08/2000, when Vandana burnt herself and died, he was in the hospital,
where he received message and accordingly reached home, where his wife
Vimal was present.   From the evidence of PW­1 Ashish as well as from
PW­4 Dr. Yadavrao, thus it has amply come on record that at the time of
incident, though Dr. Yadavrao was not in the house, Vimal was present,
however,   for   the   reasons   best   known   to   the   prosecution,   she   is   not
examined.  
From further evidence of Dr. Yadavrao, it has come on record
that on 18/08/2000, he informed police about his receiving letter dated
22/07/2000   [Exh.55]   in   envelope   [Exh.52]   on   29/07/2000,   which   is
seized under seizure­panchnama [Exh.53], dated 23/08/2000.  According
to PW­4 Dr. Yadavrao, he has informed about said letter to police on
18/08/2000, when police arrived for drawing spot­panchnama. In spit of
that, it appears that no seizure was effected on that day itself, but same
came to be seized on 23/08/2000.   Similarly, we have noted that letter
[Exh.55] bears signature of Yadavrao below, which he had put date as
15/08/2000 while its seizure­panchnama is dated as 23/08/2000 and on
the   last   page   of   said   panchnama,   PW­4   has   signed   and   put   date   as
18/08/2000.   Similarly, there appears to be overwriting on the date of
seizure­panchnama and letter [Exh.55] bears a signature of Yadavrao with

date as 15/08/2000, while envelope [Exh.52] is signed along with date as
18/08/2000.   No satisfactory explanation is put forth by the prosecution
on   this   aspect,   when   it   is   a   specific   case   of   PW­4   Yadavrao   that   on
18/08/2000,   when   police   visited   his   house,   he   has   produced   letter   of
deceased   dated   22/07/2000,   which   he   had   received   on   29/07/2000,
however, the same appears to have been seized on 23/08/2000.  So far as
overwriting   on   seizure­panchnama   [Exh.53]   is   concerned,   the   only
explanation put forth by PW­6 Chandansing Bais, the Investigating Officer,
is   that   before   filing   of   charge­sheet,   when   he   was   scrutinizing   the
document,   he   noted   this   mistake   with   reference   to   date   of   seizurepanchnama
  appearing   on   Exh.53   as   18/08/2000   and   corrected   to
23/08/2000, and the reason put forth by the Investigating Officer is that
since offence was registered on 23/08/2000, he carried out correction on
seizure­panchnama as aforesaid, which explanation does not stand for any
reason as after death of deceased on 15/08/2000, A.D. was registered and
during the course of its investigation, Investigating Officer had visited the
spot and on 18/08/2000 and as per evidence of PW­4 Yadavrao, he has
produced letter [Exh.55] to the police along with its envelope [Exh.52].  
14] Evidence   of   PW­3   Sanjay   Deshmukh,   on   this   aspect   when
perused, it reveals that on 18/08/2000, he was called to act as panch in the
house of PW­4 Yadavrao, where in his presence envelop [Exh.52] with

letter [Exh.55] came to be seized under seizure­panchnama [Exh.53].  In
view of evidence of this independent panch­witness, we find no reason put
forth   by   the   Investigating   Officer   to   effect   change   of   date   of   seizurepanchnama
  from   18/08/2000   to   23/08/2000   only   for   the   reason   that
crime was registered on that date as deposed by PW­6 Chandansing Bais,
the Investigating Officer.  In that view of the matter, apart from the alleged
harassment as well as dowry demand, prosecution case is not convincing
even on the count of investigation with reference to seizure of letters.
Though in his further examination, PW­4 Dr. Yadavrao has deposed about
handwriting on letters [Exh.42(1) to Exh.42(3) and Exh.44] and diary
[Exh.41] to be of Vandana, since he claims to be acquainted with her
handwriting, said evidence needs to be ignored for the reason already
stated   aforesaid   that   merely   because   PW­1   Ashish   as   well   as   PW­4
Yadavrao had stated to police that said letters and contents from diary are
in the handwriting of Vandana, the Investigating Officer took no steps to
get their claim certified by forwarding said handwriting to handwriting
expert.  In the background of above evidence, having considering the fact
that the statement of PW­4 Dr. Yadavrao was not recorded till 23/08/2000,
we find substance in the case of accused of his false implication after
lodging of belated report.  The only reason put forth by PW­4 Dr. Yadavrao
not to make any statement before police from 15/08/2000 to 23/08/2000

is stated to be that he was in confuse state of mind and whenever this topic
was   discussed   he   had   increased   palliation,   which   does   not   find   to   be
sufficient  to  accept.     In   fact,  we   find   that   after   death   of   Vandana   on
15/08/2000, though A.D. was registered, no statements were recorded till
offence came to be registered on 23/08/2000, as PW­6 Chandansing Bais,
the Investigating Officer had admitted that during investigation of A.D., no
statements of any witness were recorded till 23/08/2000.   He claims to
have knowledge of recording statements at the earliest.  However, since in
the instant case, statements were not recorded for a period of eight days,
we find much substance when it is suggested to the Investigating Officer
that statement of witnesses recorded during the course of investigation in
A.D. are suppressed.  As from those statements, it reveald that no offence
was   committed   by   the   accused,   which   suggestion   is   denied   by   the
Investigating Officer.  
15] Coming back to the evidence of PW­4 Yadavrao, he admits to
have not disclosed to police why the statement came to be recorded on
23/08/2000 about letter [Exh.55].   As according to him, it was already
seized by police on 18/08/2000.  As already stated above, though Exh.53
vide which letter [Exh.55] came to be seized on 23/08/2000, PW­4 Dr.
Yadavrao is firm about its seizure on 18/08/2000.  Though in his earlier
evidence, Dr. Yadavrao has stated that after the incident of 15/08/2000,

his mental condition was not good and as such police did not record his
statement.  He has admitted that on 18/08/2000, when he produced letter
[Exh.55] to police, his physical condition was good.   In view of above
unreliable evidence and since material date with reference to seizure of
letter and envelope differs, we find much substance, when it is suggested to
Dr. Yadavrao that letter [Exh.55] is a fabricated document to bring the case
within the required ingredients of dowry death, though it is denied by him.
In   the   later   part   of   his   cross­examination,   PW­4   Dr.   Yadavrao   was
suggested that prior to the incident, Vandana was under medical treatment
for sustaining epilepsy attack and hallucination and delusion and thus in
spite of receiving letter [Exh.55] on 29/07/2000, no action was taken at
his end, which suggestion is denied. 
16] PW­4 Dr. Yadavrao was suggested that while prosecuting her
studies for D.H.M.S., Vandana could not succeed in spite of appearing for
four attempts as her mental condition was disturbed, which suggestion is
also denied by Dr. Yadavrao.  
17] Considering   evidence   of   material   witnesses   namely   PW­1
Ashish and PW­4 Dr. Yadavrao on the point of cruelty provided by accused
to  deceased  Vandana  and on  demand of  dowry, we  do not  find their
evidence to be sufficient to attract provisions of Sections 498­A and 304­B
of the Indian Penal Code.  As in the evidence of neither of these witnesses,

there are specific allegations of cruelty as required under the law to be
established by the prosecution.  The existence of cruelty cannot be proved
merely because suicide has been committed or deceased died of unnatural
death.     Undoubtedly   to   a   large   extent,   the   concept   of   cruelty   will   be
subjective, but no claim of cruelty can be made  within objective basis.
Thus, merely because victim has taken a drastic step of ending her life, it
cannot be presumed that the treatment that was being given to her was
cruel, so as to attract punishment provided for, in Section 498­A of the
Indian Penal Code.   Explanation to Section 498­A of Indian Penal Code
makes it clear that cruelty means “any willful conduct, which is of such a
nature as is likely to drive a woman to commit suicide or to cause grave
injury or danger to life, limb or health (whether mental or physical) of the
woman”.  The words “willful conduct” and “likely to” used in explanation
clause (a) are significant.   The words “likely to” used in the said clause
show that clause (a) of explanation to Section 498­A of the Indian Penal
Code requires a willful conduct to be of such a nature as would likely to
drive a woman to commit suicide or to cause grave injury or danger to life,
limb or health.   The extent of cruel treatment needs to be objectively
assessed in order to see whether a reasonable or average person would
likely  to be driven  to  commit suicide  or cause grave  injury  to her on
account of treatment.  

18] From the evidence on record, there is nothing to establish that
till the incident has occurred, deceased was subjected to cruelty to such an
extent   that   she   was   likely   to   be   driven   to   commit   suicide.     More
particularly, when from 25/07/2000, she was in the house of PW­4 Dr.
Yadavrao and the incident occurred after a gap of about 20 days thereafter.
In that view of the matter and since PW­4 Dr. Yadavrao is also stated to be
not aware as to the nature of death of deceased, at the cost of repetition,
we emphasis that death of Vandana involved in this appeal by itself cannot
be considered as proof of cruelty.  
19] Prosecution has neither examined Dr. Vimal wife of PW­4 Dr.
Yadavrao nor Dr. Vijay Mankar, the uncle of deceased, though material,
and thus we find that it was bounden duty of prosecution to examine these
material witnesses, particularly when it is no case of prosecution that if
produced   these   witnesses,   would   not   speak   the   truth.     Under   these
circumstances,  withholding   the   material   witnesses  from  the  Court   thus
casts   serious   reflection   on   the   fairness   of   trial   and   thus   even   adverse
inference in view of illustration (g) to Section 114 of the Indian Evidence
Act can arise against the prosecution.  As had these witnesses could have
been examined, Dr. Vijay Mankar could have put light on the settlement
talks, whatsoever, might have taken place at the time of settlement of
marriage with the accused and as Dr. Vimal was found in the house at the

time of incident, she must have come out with the true facts as to what
transpired at the time of incident.  In the light of above evidence on record,
we find case relied on by the appellant in the matter of  Ramaiah alias
Rama vs. State of Karnataka,  reported in  2015(1) Mh.L.J. (Cri.) 257
useful to be referred, wherein the Hon'ble Apex Court in paragraph 22
observed thus :
“Whether her death was accidental as claimed by the defence or
it was a suicide committed by 'L', is not clearly established.  Had
the allegations of demand of dowry and harassment of 'L' been
established thereby making it an offence under section 498­A,
Penal Code, things would have been different.  However, when
dowry   demand  and  harassment  of  'L'  is  not  established,  the
inferences drawn by the High Court taking aid of section 113­B
of the Evidence Act also to be discarded.
20] According to the evidence of PW­5 Dr. Dattatraya Kale, who
has performed autopsy, he noted following external injuries...... 
As regards surface and injuries : ­ Head, neck, face, burn totally
(9%).  Both upper limbs burnt completely (18%).  Only lower
back and lower abdomen spared due to tight knicker (16+16).
Both   lower   limbs   burnt   completely   except   foot   (16+16).
Genitalia not burnt due to tight knicker.   Total percentage of
burn 91%.  All these injuries were anti mortem due to burns.
….... and   certified cause of death as asphyxia death due to

fire and has issued postmortem note [Exh.61].   The Medical Officer has
admitted that there are various causes by which death can be caused by
asphyxia   like   hanging,  throttling,   suffocation,  drowning,     and   also   has
stated that in the instant case, the death was due to suffocation.  However,
has in clear terms admitted that on the basis of postmortem note [Exh.61],
he cannot say whether the death was accidental, suicidal or homicidal
death.
21] From   the   above   discussed   evidence,   there   is   nothing   to
establish whether death of Vandana was accidental or it was suicidal. Had
the allegations of demand of dowry and harassment to Vandana were
established thereby making an offence under Section 498­A of the Indian
Penal Code, the things would have been different.  However, in the absence
of such evidence and since we do not find dowry demand and harassment
to Vandana to be established, provisions of Section 304­B of Indian Penal
Code cannot put into play so as to attract presumption as to dowry death.
It is necessary to show that soon before the death, deceased had been
subjected by such person to cruelty or harassment for or in connection
with, any demand for dowry.  When this essential ingredient has not been
established in the present case, the question of drawing any presumption
by invoking aforesaid provisions does not arise at all.  

Moreover, it is the settled legal position that even if a single
ingredients of Section 304­B of the Indian Penal Code is not made out, the
presumption of Section 113 of the Indian Evidence Act will not be available
to prosecution and no burden would shift upon the defence.  
22] The appellant to establish his innocence and to prove his case
had examined DW­1 Nitin Jaiswal, who passed M.B.B.S., D.P.M. and was
practicing at hospital at Yavatmal, where in the year 1999, accused had
brought deceased wife Vandana for treatment, who was suffering from
grand mal epilepsy, who whom he examined and found her current mental
status with hallucinations particularly visual moderately present, delusions
persecutory type moderately present with depressed mood.  He diagnosed
that   patient   was   suffering   from   grant   mal   epilepsy   with   post   epileptic
psychosis   and   continued   treatment   after   seeking   opinion   of   Dr.
Chandrashekhar Meshram.  The expert has stated that he also noted her
marital relationship with the spouse to be not good having suspecting his
character and was found in a habit of writing irrational stories, irrational
letters,   making   rangolies   occasionally   and   having   irrelevant   talks   on
sustaining epileptic attack with  abusive and assaultive behavour, angry
outburst, writing suicidal notes and letters without informing anyone.  The
mark­list of final year D.H.M.S. Course [Exh.57] on record in respect of
deceased Vandana when perused it reveals that consecutively she failed in

the   final   year   of   above   said   examination   in   all   four   attempts.   Which
document corroborates the version of DW­1 Dr. Nitin Jaiswal.   From the
evidence of Dr. Jaiswal, it is further noted that Vandana was required to
take treatment throughout her life span and has accordingly issued report
[Exh.75].  Nothing material could be achieved in his cross examination to
doubt   his   evidence.     Except   for   suggesting   that   false   documents   were
prepared 15 days prior to his deposing before the Court, which is duly
denied by DW­1 and that suggestion even otherwise does not stand for any
reason as it was already suggested to PW­1 Ashish in the fag end of his
cross­examination, which is recorded on 17/03/2004 that Vandana was
provided   treatment   by   DW­1   Dr.   Nitin   Jaiswal   in   the   year   1999   for
sustaining epilepsy, hallucination and delusion.  In that view of the matter,
we do not find any reason to disbelieve [Exh.75] report issued by DW­1 Dr.
Nitin Jaiswal.
23] The defence to dislodge the case of prosecution on account of
dowry demand has examined DW­2 Bhaskar Raut, who has stated that Dr.
Vijay Mankar, who is uncle of deceased and husband of his sister­in­law,
was present at the time of settlement of marriage of accused with deceased,
which came to be settled in the presence of parents of accused, brother,
relatives, where it was agreed that marriage was to be solemnized   at
Pandharkawada and the marriage expenses were agreed to be born by both

sides respectively and not to make any heavy expenses.  Nothing material is
elicited in his cross­examination except for suggesting that he was not
present at the time of settlement of marriage and that it was agreed to pay
Rs.80,000/­   in   cash   and   a   four   wheeler   to   accused,   out   of   which
Rs.65,000/­ was agreed to be paid at the time of marriage and balance
amount and four wheeler to be given after marriage, which suggestion is
duly denied by him.  
For the reasons stated aforesaid, thus, there is no convincing
evidence of PW­1 Ashish and PW­4 Dr. Yadavrao on the point of settlement
talks, if any, took place at the time of marriage of deceased and for nonexamination
  of   material   witnesses   on   this   aspect,   we   find   nothing   to
discard the evidence of DW­2 Bhaskar Raut.
24] On perusal of evidence of DW­3 Sheikh Maroof Sk. Ahmed, it
has come on record that on 25/07/2000, PW­1 Ashish, when visited Partur
to bring his sister back along with him to Umerkhed, had met this witness
in the college and handed over keys of her quarter for being supplied to
accused.  However, his evidence does not establish nor it is suggested to
this   witness   in   the   cross   examination   that   PW­1   Ashish,   while   taking
Vandana with him to Umerkhed, at the time of handing over keys, had
informed the reason for his taking Vandana with him.  Similarly, evidence
of this witness falsifies evidence of PW­1 Ashish of accused threatening

deceased not to show her face till she brings the balance amount of dowry
and four wheeler, as if accused at that time was present, there was no
reason for PW­1 Ashish to give keys of house of accused to DW­3 Sheikh
Ahmed.  
25] Having scrutinizing evidence, as aforesaid, and in view of the
settled  legal   principle   that   the   defence   witnesses  are   entitled   to   equal
treatment with those of the prosecution, we are therefore of the opinion
that as a result of cumulative discussion as above, the appellant has to
succeed as in this case, there is practically no evidence to show that there
was any cruelty or harassment for or in connection with the demand of
dowry.  This deficiency in evidence proves fatal for the prosecution case.
Even otherwise mere evidence of cruelty and harassment is not sufficient to
bring in application of Section 304­B of the Indian Penal Code.  It has to be
shown in addition that such cruelty or harassment was for or in connection
with the demand for dowry.   Since the prosecution failed to prove that
aspect, the conviction as recorded cannot be maintained.   We accordingly
allow this appeal.  We set aside the judgment of the Court below and pass
the following order.  
 Criminal Appeal No. 8/2005 is allowed.

 The conviction imposed upon the appellant for the offences
punishable under Sections 498­A and 304­B of the Indian
Penal Code is set aside. 
 His bail bond stands cancelled.

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