A.L. Vaidya, J.
1. The present appellants, Prem Dass and Smt. Asha Rani, have been convicted under Sections 306/498-A IPC vide judgment dated 18th January, 1989, passed by Sessions Judge, Hamirpur, and as a consequence thereof Prem Dass appellant has been sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 500/- under Section 306 IPC. In default of payment of fine he has been sentenced to a further imprisonment of three months. He has also been sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 300/- under Section 498-A IPC and in default of payment of fine he was ordered to undergo further imprisonment for one month. In so tar as Smt. Asha Rani, the other appellant, was concerned, she was given the benefit of probation under Section 4 of the Probation of Offenders Act and instead of being sentenced at once to any punishment, she was directed to be released on her entering into a personal bond in the sum of Rs. 2000/- with one surety in the like amount for a period of two years and was further directed to appear and receive sentence as and when called upon to do so during such period and in the mean time to keep the peace and be of good behaviour. The learned Sessions Judge further directed that Smt. Asha Rani shall remain under the supervision of the District Probation Officer, Hamirpur, during the aforesaid period of two years.
2. Appellant Prem Dass is the brother of Smt. Asha Rani's husband. Smt. Kamla Rani deceased and Prem Dass appellant were married about four years back from the date when the present case under Sections 498-A/306 IPC was registered against him and appellant Asha Rani vide FIR No. 37/87 dated 10-6-1987 at Police Station, Barsar, District Hamirpur, on the basis of the statement made to the police by Shri Dharam Singh, the father of Smt. Kamla Rani deceased. Smt. Kamla Rani deceased committed suicide on 6th June, 1987, in village Kahrwin, Tappa Bani Barsar, District Hamirpur. At the time of her death she was carrying a pregnancy of about 4-5 months. The prosecution case has been that Prem Dass appellant was having illicit relations with his brother's wife, Smt. Asha Rani appellant. On account of those relations, both the accused-appellants were alleged to be maltreating Smt. Kamla Rani deceased on the ground of her having brought less dowry. The further case of the prosecution has been that Smt. Kamla Rani was subjected to cruelty throughout her marital life with accused which led her to commit suicide by consuming insecticide on 6th June, 1987. After she had taken that poison, her husband Prem Dass removed her to Hospital at Barsar and on the asking of the Doctor (P. W. 7) Kamla Rani disclosed to the said doctor in slurred voice that she had consumed those insecticide tablets at her home on 6th June, 1987, in the evening. The deceased was given treatment but despite all that she breathed her last at about 10 at night in the Hospital. The doctor then informed the police with docket Ex. PC about the admission of Kamla Rani in the Hospital at Barsar and after the death of Kamla Rani the doctor again informed the police about her death. The police prepared the inquest (Ex. PB) in the presence of accused Prem Dass, Kartar Singh and Roshan Lal. Gastric lavage of Kamla Rani was preserved by the doctor in a sealed bottle which was handed over to the police by the doctor for chemical examination. The dead body of the deceased was sent to the District Hospital, Hamirpur, for post mortem examination vide docket Ex. PD where doctor K. C. Kaushal along with Doctor P. C. Gupta conducted the post mortem on the deadbody of deceased Kamla Rani and the post mortem report on record is Ex. PH. Viscera of deceased Kamla Rani was preserved by the aforesaid doctors and the same was sent for chemical analysis. The Chemical Examiner, after its examination, issued report Ex. PX.
3. Dharam Singh, the father of deceased Kamla, came to know about the death of his daughter on 7th June, 1987. He made the report Ex. PA to the police on the basis of which the present case was registered. The informant reported that he enquired about the death of his daughter through relatives and the villagers and he came to know that his son-in-law Prem Dass had been beating his daughter after taking liquor and that Prem Dass was having illicit relations with his brother's wife Smt. Asha Rani. He also reported that both of them used to maltreat the deceased. It was also reported that Smt. Kamla Rani had taken to her heart the relations of her husband with his brother's wife. The informant also reported that his daughter has been informing him many a times about her husband's illicit relations with his Bhabhi. the other appellant in the case Smt. Asha Rani. She also had been informing her father, the informant, that both the appellants had been maltreating and beating the deceased. The father of the deceased also reported that this information was given by the deceased to her mother also. The father also made the statement that when his son Nasib Singh was married, at that time Prem Dass accused/ appellant in the presence of his wife told the deceased that he (Prem Dass) had spent rupees four thousand on the marriage of her (deceased's) brother but on the other hand her parents had not given anything to him. The father also slated before the police that Prem Dass had told his wife that at the time of his marriage no dowry was given. According to the father of the deceased, accused Prem Dass was repeatedly maltreating the deceased and had been hurling sarcasms on her for not bringing dowry. The father further disclosed to the police that his daughter Smt. Kamla Rani committed suicide because of the mal-treatment given to her by the accused persons.
4. The police, after registration of the case and after getting the post mortem conducted, searched the house of the accused where one phial of dalf, filled upto l/6th volume, was recovered and was sealed and was taken into possession. The police also recovered a TASLA which contained wet ash from underneath the cot. Accused Prem Dass produced eight tablets bearing mark 'Quick Phos' to the police which were also sealed and taken into possession. The police also took into possession the vomit of deceased Kamla Rani from the courtyard of the house and the same was also sealed. The police sent the parcels of Gastric lavage, vomitting, ash, Iron TASLA, phial containing Dalf, packet containing quick phos tablets to the Chemical Examiner for analysis and the Chemical Examiner issued report Ex. PX. This report of the Chemical Examiner showed that organophosphorous compound (an insecticide) was found in the contents of the sealed bottles said to contain portion of stomach, large and small intestines, liver, kidney and spleen, Gastric lavage, containers containing vomitting and ash and the parcel said to contain iron TASLA. The report of the Chemical Examiner also showed the presence of organophosphorous compound in the contents of the sealed bottle said to contain Dalf. The report of the Chemical Examiner further showed that Aluminium phosphide was found in the contents of sealed packed said to contain 'quick phos'.
5. The trial Court after charging the accused persons under Section 498A/306 IPC and after completing the trial, convicted them and sentenced them, as referred to above.
6. The aforesaid conviction and sentence have been assailed in the present appeal on various grounds.
7. There is no doubt that such like frequent deaths, of late, have been reported to be very common and they have been attributed on account of mal-treatment meted out by the brides at the hands of the bridegrooms and their relatives. Seekers of dowry go to any extent and in the execution of their criminal designs, they do not lag behind in taking the innocent lives of the young brides. In the present day society when the morals of the people have gone to its lowest ebb, reports received on dowry deaths have been very frequent. On the other hand there have been persons, who have been projecting and reflecting the ordinary deaths or simple cases of suicide, by giving a colour in such a manner so as to bring the matter within the ambit of dowry death or within the provisions of Sections 306/498-A IPC. The duty of the court in the present day, as such, becomes more responsible so as to come to a right conclusion by appreciating the legal circumstances established in a particular case to arrive at an inference whether the case falls within the ambit of the charge framed or the peculiar circumstances in a particular case exclude the occurrence to be a case of dowry death or an offence under Sections 306/498-A IPC.
8. In the present case the facts brought on record and examined during the trial have, at the first instance are to be taken note of in order to scrutinize the various inferences arrived at by the trial court on the basis of that evidence.
9. The most important witnesses examined during the trial are (P. W. 1) Dharam Singh, father of the deceased, (P. W. 2), Bansi Lal, the maternal uncle of the deceased, (P. W. 3), Smt. Piar Devi, mother of the deceased, (P. W. 11) Smt. Gita Devi, wife of P. W. 2, Bansi Lal and (P.W. 12)Smt. Pushpa Devi, the wife of the brother of the deceased.
10. Dharam Singh, the father of the deceased, deposed that Kamla Rani, his daughter, was married to accused Prem Dass 5-6 years back. He did not remember the exact date of the marriage. He has got three sons, namely Madan Lal, Nasib Singh and Hoshiar Singh out of whom Nasib Singh and Madan Lal were married. According to him, his daughter Kamla Rani gave birth to a son who was four years of age when the witness made the statement. He also disclosed that at the time of her death Kamla Rani was carrying a pregnancy of about five months. He came to know about the death of his daughter next day after her death. According to him, a police constable came to his house and asked him to accompany him to see the dead-body of Kamla Rani and thereafter he, along with other co-villagers, and his brother-in-law Bansi Lal, came to Hamirpur. The witness stated that he identified the dead-body of his daughter Kamla Rani which was kept in the mortuary of Hamirpur Hospital and after the post mortem the dead body was handed over to accused Prem Dass and he attended the cremation of his daughter. The witness further stated that on the next day a police constable from Police Station Barsar came to his house and asked him to come to Police Station, Barsar, where he had been summoned. The witness further added that on 10th June, 1987, he went to Police Station, Barsar, where the police recorded his statement which was Ex. PA on record.
11. The father of the deceased also stated that accused Prem Dass had illicit relations with his brother's wife, accused Asha Rani, and they both used to mal-treat Kamla Rani, his daughter. This witness also added that he used to advise his son-in-law Prem Dass that he should not mal-treat Kamla Rani and his daughter used to talk with her mother about the illicit relations of Prem Dass with accused Asha Rani and the wife of the witness used to tell him about that. The witness also stated that once his daughter Kamla Rani also told him about the illicit relations of her husband Prem Dass with accused Asha Rani and she also told that they used to maltreat her. The witness disclosed that when he advised accused Prem Dass he used to deny the illicit relations with Asha Rani. The witness also stated that his daughter Kamla Rani also had narrated about the illicit relations of her husband with Asha Rani to her Bhabhi. Smt. Puspha Devi and to her maternal aunt Smt. Gita Devi, wife of Bansi Lal P. W. The witness also stated that the marriage of Nasib Singh, his son, had taken place prior to the death of Kamla Rani which was attended by Prem Dass and Kamla Rani both. According to this witness, at the time Prem Dass had told Kamla Rani in his presence that he had spend about Rs. 4000/- on the marriage of his brother-in-law Nasib Singh and nothing had been given to him from the side of his father-in-law and that at the time of his marriage also very meagre dowry was given to him whereas Nasib Singh had received much more dowry. The witness added that this was told in the presence of Pushpa Devi, Gita Devi, Bansi Lal and the wife of the witness. The witness further disclosed that he told Prem Dass that the witness being a poor man had given dowry to his capacity and at the time of marriage of the younger daughter of the witness he would try to give Prem Dass also what would be in his capacity to give. The witness further stated that both the accused persons used to taunt Kamla Rani for having brought meagre dowry and also used to maltreat her on that account as Kamla Rani used to tell them about this also. According to this witness, accused persons might have maltreated Kamla Rani and so she might have been made to die.
12. The cross-examination conducted on this witness, again, is very much relevant. He stated that on 8th and 9th June, 1987, he remained with the police at Hamirpur along with his brother-in-law, Bansi Lal and police did not record his statement on those days nor did he ask the police to record his statement. According to him, he was called by the police at Barsar Police Station to give his statement where he did so. He denied the suggestion that he and Bansi Lal conspired together as to what statement was to be given at the police station. The witness stated that it was correct that during the period of married life of five years and also during marriages and other functions in both the families. Prem Dass accused used to attend the functions in the house of this witness and the family of the witness used to attend the functions in Prem Dass's house. According to him, Kamla Rani for most of the period remained at the house of her in-laws and she never came to the house of the witness without the consent of her in-laws. The witness has been very specific in deposing that during the last 5-6 years he or his daughter Kamla Rani never made any complaint against Prem Dass and Asha Rani before the Police or before any other authority. This witness stated that it was not done so because of the fear of insult in the society. The witness also disclosed that the brother of Prem Dass, that is, the husband of Asha Rani was employed in the Army and he had since come on pension to his house. The witness stated that he never told about the alleged illicit relations of Prem Dass and Asha Rani to the husband of Asha Rani. According to him, both the brothers separated after about three years of the marriage of Prem Dass. The mother of Prem Dass was alive. The witness stated that he had complained to the mother of Prem Dass about his illicit relations with Asha Rani and she assured the witness that she would advise both of them. The witness disclosed that he used to make such a complaint to the mother of the accused whenever he used to visit her house. He did not remember the definite dates but he stated that he used to visit the house of Prem Dass on festivals like Lohri and Diwali etc. According to him, at that time of the marriage of Prem Dass and Kamla Rani, Prem Dass had not demanded any dowry from him and whatever the witness had given in dowry, Prem Dass had showed his satisfaction to them. Prem Dass at the time of his marriage was working in irrigation Deptt. at the pump house on daily wages and at the time when the witness made the statement, he was running a Dhaba in his village for the last two years. He stated that it was correct that in his statement to the police he had not stated that at the time of marriage of his son he had told Prem Dass that at the time of the marriage of his second daughter he would give articles to him to his capacity. The son of Kamla Rani, according to this witness, was residing with his father, Prem Dass accused. The witness had denied me suggestion that the accused have been falsely implicated and that Prem Dass was having cordial relations with his wife Kamla Rani.
13. P. W. 2 is Bansi Lal. He is the maternal uncle of the deceased. He stated that the deceased used to visit his house and once in his presence the deceased told his wife that her husband Prem Dass and accused Asha Rani maltreated her. According to this witness, she also stated that Prem Dass accused had illicit relations with Asha Rani and after consuming liquor Prem Dass used to maltreat her. This witness added that Nasib Chand is his sister's son whose marriage was solemnized about four months back from the date of the death of the deceased and he along with his wife attended that marriage. This witness added that on the concluding day of the marriage, Prem Dass had shown his grievance that though he (Prem Dass) had spent sufficient amount on the marriage of Nasib Singh, but in return nothing had been given to him (Prem Dass) by his in-laws. This witness further disclosed that Kamla Rani also told on that day that she was being maltreated for having brought meagre dowry by her husband and the accused Asha Rani. The witness stated that on 25th July, 1986, he had visited the house of accused Prem Dass and had advised him not to maltreat Kamla Rani and at that time Prem Dass had told the witness that he would not maltreat his wife Kamla Rani. He stated that on 7-6-1987 he had come to the house of P.W.1, Dharam Singh and on receipt of information about the death of Kamla Rani he, along with Dharam Singh, had come to Hamirpur where they saw the dead body of Kamla Rani in the dead house. He further stated that after post mortem, the dead body was handed over to Prem Dass for cremation. He stated that Kamla Rani had died because of the maltreatment by the accused persons.
14. In cross-examination this witness stated that he had not told the police that he had visited the house of Prem Dass on 25-7-1986 and had advised Prem Dass not to maltreat Kamla Rani. He stated that he had gone to the house of Prem Dass on that day of his own as he had told Kamla Rani that he would visit her house and would advise the accused. The witness stated that he had visited the house of Prem Dass only once on that day. According to him, Prem Dass visited his house thrice and Kamla Rani had visited his house after marriage about five times. He stated that on one occasion the deceased had come to attend the marriage of his daughter. The witness was employed as a teacher. He stated that on the day of the marriage of his daughter Kamla Rani had not told him about her husband's illicit relations with Asha Rani as he was busy in marriage. He stated that Kamla Rani came to his house before the marriage of his daughter in 1985 and at that time he told his wife about illicit relations of her husband, Prem Dass, with Asha Rani. He further disclosed that he did not collect Panchayat members to advise Prem Dass regarding his maltreatment to Kamla Rani and he also did not report the matter to the police nor filed any complaint in the Court. According to him, he advised Dharam Singh to collect respectable persons to advise Prem Dass not to maltreat Kamla Rani but he did not advise him to file proceedings in Court. He stated that at the time of cremation and at the time of post mortem of Kamla Rani he, along with Dharma Singh, remained at Hamirpur and at that time police was also there. He denied the suggestion that he took loan of Rupees 200/- from Prem Dass arid some dispute arose with respect to the same. He denied the suggestion that Prem Dass never visited his house for the last three years. The witness stated that Prem Dass had visited his house only fifteen days back. The witness disclosed that he did not make any enquiry from any villagers to verify the allegations of Kamla Rani about illicit relations of her husband with Asha Rani. He stated that Prem Dass did not take liquor in his presence but the witness added that when he went to the house of Prem Dass, he found Prem Dass under the influence of liquor and Prem Dass had also taken liquor at the lime of marriage of Nasib Singh. He denied the suggestion that after the death of Kamla Rani on account of suspicion they have wrongly implicated the accused persons.
15. P. W. 10 is another important witness, Suit. Piar Devi, the mother of the deceased. She stated that Prem Dass, the husband of her daughter, Kamla Rani, used to beat the deceased and whenever Prem Dass came to her house she used to advise him not to beat Kamla Rani as she was his wife. The witness further added that Prem Dass had illicit relations with Asha Rani and Asha Rani used to taunt Kamla Rani stating that she had not brought sufficient dowry. She further added that the marriage of his son Nasib Singh Was attended by Prem Dass and in the marriage he had taken liquor and, under the influence of liquor, he gave beatings to Kamla Rani and taunted her that she had not brought sufficient dowry. Prem Dass at that time also stated that he had spent Rs. 4000/- on the marriage of Nasib Singh and in turn he was not given anything. At that time, according to the witness, Pushpa Devi and Gita Devi were present with her. She stated that Kamla Rani had died at the house of Prem Dass and he must have given poison to her and caused her death or she might have taken poison of her own. The witness also stated that whenever Kamla Rani came to her house she used to complain that she was being given beatings by Prem Dass and that Prem Dass was having illicit relations with Asha Rani. She was confronted with her statement Ex. PJ made to the police wherein it was not recorded that Prem Dass had taken liquor in the marriage of Nasib Singh, She stated that it was correct that her husband Dharam Singh and Bansi Lal told her as to what statement they had made and asked them to make the same statement. She stated that Asha Rani never came to her house nor she met her ever. She stated that dowry given by them to Kamla Rani could be less or more than to that brought by Asha Rani. She stated that she did not go to the house of the accused persons to verily the fact of maltreatment being meted out by Kamla Rani. She was specific in deposing that Prem Dass and Kamla Rani on a number of times came to their house together and went back together. She denied the suggestion that whatever statements were made by Dharam Singh and Bansi Lal, she made the same statement. She also denied the suggestion that Kamla Rani was not being maltreated by the accused persons and that accused Prem Dass was not having illicit relations with Asha Rani.
16. P.W. 11 is Smt. Gita Devi, wife of Bansi Lal (P. W. 2). She stated that Kamla Rani used to complain that her husband Prem Dass, under the influence of liquor, used to give her beatings and he' had also illicit relations with Asha Rani. She also stated that the deceased used to state that at the instance of Asha Rani Prem Dass accused used to beat Kamla Rani. She stated that in the marriage of Nasib Singh, Prem Dass had complained that he had spent Rs. 4000/- on the marriage of Nasib Singh but in turn he was given nothing by his in-laws and the dowry given to him was also meagre.
17. She further disclosed that Kamla Rani used to visit her house but she did not remember the dates. She stated that Kamla Rani used to come alone whenever she visited her house. According to her, Prem Dass visited their house once after the marriage and once recently for compromise. She stated that her statement was recorded by Barsar police and two days earlier to that her husband made a statement to the police at Barsar. According to her, her husband told her that whatever statement he had made at Barsar she should also make the same statement. She had denied the suggestion that Kamla Rani was not being maltreated by the accused Prem Dass and he had no illicit relations with Asha Rani.
18. P. W. 12 is Pushpa Devi who stated that Kamla Rani was married to Prem Dass and she used to complain that she and Asha Rani had been taunting her for bringing less dowry and Prem Dass had illicit relations with Asha Rani. She stated that in the marriage of Nasib Singh, Prem Dass and Kamla Rani came and at that time Prem Dass stated that he had spent Rs. 4000/- in connection with the marriage of his brother-in-law but his in-laws had given nothing to him in return.
19. She visited the village of Prem Dass after his marriage with Kamla Rani and she did not make any enquiry regarding the complaint of Kamla Rani against her husband and Asha Rani. She stated that at the time when she visited the house of Prem Dass the relations between him and Kamla Rani were cordial. She stated that she visited the house after one and a half years of their marriage. She accompanied her mother-in-law, Piar Devi and Gita Devi to police station Barsar for making a statement there. She admitted that two days earlier to that her father-in-law had also made a statement before the police.
20. The aforesaid are the witnesses who have tried to prove the following circumstances relevant to the present case :
(i) Illicit relations of Prem Dass and Asha Rani;
(ii) Both the accused alleged to be maltreating the deceased;
(iii) The complaint of Prem Dass against his wife and in-laws for not giving sufficient dowry; and
(iv) The suicide committed by Kamla Rani.
21. The other witnesses examined during the trial, again, can safely be referred to draw some inferences with respect to the aforesaid circumstances, alleged to have been stated by the witnesses referred to above.
22. P. W. 3 is Ashok Kumar. He was the resident of the village of Prem Dass accused. This witness stated that on 6th June, 1987, the day of occurrence, he met Prem Dass along with his wife Kamla Rani on the path near the village when he was going to his house. The witness stated that Prem Dass requested him to accompany him to the hospital as his wife was ill and, according to this witness, at that lime Prem Dass was carrying his wife on his back and the witness accompanied them to the hospital. The witness further added that on reaching the hospital doctor enquired Kamla Rani as to what she had taken whereupon Kamla Rani told that she had taken a tablet. This witness further stated that the doctor further enquired from her as to why she had taken the tablet and on this Kamla Rani replied that she had taken it and thereafter she was taken to the Ward where she died. The witness also stated that earlier to that the doctor tried to bring out poison from her mouth. He stated that he never saw the accused Prem Dass beating Kamla Rani and he also did not see him taking liquor or in a drunken condition. He also stated that he never knew about any illicit relations of Prem Dass accused with Asha Rani. He also stated that Kamla Rani never made a complaint to the witness or to his wife about any illicit relations of her husband with accused Asha Rani. He stated that he was not related to the accused persons.
23. Amar Nath (P. W. 4) is another resident of the same village who knew the accused as well as the deceased. He stated that on 6th June 1987, Kamla Rani had come to his house to take meals as there was Yajna in his house on that day. He disclosed that Prem Dass accompained Kamla Rani at that time. According to him, Kamla Rani must have taken her meals at his house and after taking food Kamla Rani and her husband had returned to their house. On 7th June, 1987, in the morning the witness came to know that Kamla Rani had died. He did not know the cause of death. He stated that in his presence Prem Dass never took liquor nor did he give beatings to his wife, Kamla Rani. He stated that Prem Dass and Kamla Rani had come to take food in the Yajna together and they went together after taking food.
24. P. W. 5 is Shila Devi, again a resident of the same village. She stated that she knew accused Prem Dass and the deceased. According to her, on 6th June, 1987, at about 7.00 p.m. she came to know that Kamla Rani was ill and she then went to her house to see her. The witness stated that she enquired from the mother-in-law of Kamla Rani as to from what ailment she was suffering from. She was informed that Kamla Rani had taken some tablets and that she was lying inside the room. The witness further stated that thereafter she went inside the room but Kamla Rani could not talk to her as she was lying unconscious. The witness stated that her husband Prem Dass was also present in the house and the witness told him and his mother to take Kamla Rani to the hospital and thereafter they took her to the hospital and on the next day at about 4.00 a. m. the witness heard the noise of weeping coming from the house of Prem Dass and then the witness came to know that Kamla Rani had died. She also disclosed that after her marriage Kamla Rani remained in the village of her in-laws and she accompained her on number of times for cutting grass from the field. The deceased never told her that her husband was having illicit relations with Asha Rani and she also never told her that her husband had demanded dowry and used to maltreat her on that account. She stated that Prem Dass never took liquor in her presence.
25. P. W. 6 is one Shri Kartar Singh who is also the resident of the same village. He stated that on 6th June, 1987, when he returned to his house from his fields in the evening hours, he came to know that wife of Prem Dass was seriously ill and had been taken to the hospital and the witness then went to the hospital Barsar and found that poison was being taken out through a pipe. He also stated that after removing the pipe Kamla Rani was taken to the Ward where she died after about five minutes. He further stated that the police came there and prepared inquest Ex. PB. He, Roshan Lal and Prem Dass signed that inquest report. He stated that the accused persons were from his village and in his presence Prem Dass never gave beatings to Kamla Rani. Kamla Rani never told the wife of the witness or the witness that Prem Dass had illicit relations with accused Asha Rani. The witness also added that accused Prem Dass did not take liquor in his presence. He never had seen him under the influence of liquor.
26. P.W. 13 is one Ajit, Singh, Up-Pradhan of the area. He stated that he knew Prem Dass and on 6th June, 1987, he and accused Prem Dass had gone to take meals in the Yajna at the house of Amar Nath. He stated that before taking meals Prem Dass did not take liquor. The witness was allowed to be cross-examined on behalf of the prosecution. During his cross-examination by the prosecution the witness stated that his statement was recorded by the police and he had heard portion marked A to A of his statement before the police which, according to the witness, was correct. The portion marked A to A (sic) in Ex. PK recorded that on 6-6-1987 before going to Yajna in Bani there was a liquor vend, from where a nip of liquor was taken which was con-sumed by Prem Dass and Lakhbir Singh who was with them when they went to take meals to the house of Amar Nath. The witness further disclosed that he did not remember for what price the liquor was purchased. He also stated that in the capacity of Up-Pradhan he never received a complaint that Prem Dass used to beat his wife.
27. P. W. 16 is one Yog Raj who was dealing in the sale of insecticides for which he was having a license. He stated that he could not say whether Prem Dass had purchased insecticide from his shop or not.
28. P. W. 17 Amar Singh who stated that Prem Dass and Kamla Rani were having cordial relations and he did not know about any illicit relations of Prem Dass with Asha Rani. He also did not know about any beatings having been given to Kamla Rani by accused Prem Dass. This witness was also allowed to be cross-examined by the prosecution.
29. P. W. 23 is one Sarwan Singh who was associated during the investigation of the case when various articles were taken into possession.
30. Apart from the police officials examined during the trial, some important evidence very much relevant to the case has been examined as medical evidence.
31. P. W. 7 is Doctor Sudarshan Kumar Sharma, who at the relevant time was posted as Medical Officer at Barsar Hospital. He stated that on 6th June, 1987, a lady named Kamla Rani was brought to the hospital at Barsar by her husband Prem Dass and others at 9.30 p.m. with history of having ingested some insecticide tablets followed by vomitting in excess. He further stated that on examination the patient was found to be semiconscious, delerious, restless and disoriented. On repeatedquestioning, she stated in a slurred speech that she had consumed some insecticide tablets at home that evening. The witness further added that her vital signs were recorded which were as under:
32. Pulse was 102 p.m. regular low volume and thready. Blood Pressure was 60 mm. H. G. Systtolic palpatory. Tongue was dry and coated. Pupils were moderately dialated and sluggishly reacting to light.
33. The witness further added that there was no mark of violence on the body and the witness suspected that she had taken organophosphorus or Aluminium phosphate. He informed the police vide Ex PC and the patient was treated by him on the line of organophosphorus poison and Aluminium phosphate and during the course of her treatment her gastric lavage was done by the witness in which around two liters of clear fluid with froath and few blood clots were washed out. He further stated that the gastric lavage was preserved in a sealed bottle and handed over to the police for chemical analysis. He also stated that the patient died at about 10.35 p.m. According to him, as the police had not arrived, he handed over the deadbody to Prem Dass, husband of the deceased and the police was also informed about the death of Kamla Rani. Ex. PD was the bed head ticket of the deceased. Gastric Lavage was handed over to the police vide memo Ex. PC. He stated that it-was correct that organophosphorus was used for killing rats and it was generally kept by the villagers.
34. P. W. 8 is Dr. K. C. Kaushal who conducted the post mortem on the dead-body of deceased Kamla Rani on 8-6-1987 at 11.45 a.m. along with doctor P. C. Gupta, on police request which was made vide Ex. PG. The doctors opined that the deceased had died due to cardio respiratory arrest. However, according to them final opinion would be given after receiving the Chemical Examiner's Report. The time between death and post mortem examination was within 48 hours. Ex. PH was the post mortem report given by them. The doctor also staled that the deadbody along with feetus, clothing and ornaments, viscera for chemical analysis, was haneded over to the police. The witness further added that vide report No. HP 284 dated 12-8-1987 an organophosphorus compound (an insecticide) was found in the contents of Exts. No. 1(A), 1(B), I (C), No.-2, 3, 4 and 5. The presence of an organo-phosphorus compound was found in the contents of Exts. No. 6, Aluminium phosphide was found in the contents of Ex. No. 7. According to the doctor, after going through the report of the Chemical Examiner the deceased died due to consumption of organophosphorus compound which led to cardio respiratory arrest. This report was signed by this witness and Dr. P. C. Gupta.
35. P. W. 9 is Dr. P. C. Gupta who stated that he along with Dr. K. C. Kaushal conducted the post mortem examination of the deceased and the post mortem report was signed by him and doctor Kaushal also. The witness stated that he subscribed to the opinion of Doctor Kaushal which was based on Chemical Examiner's Report.
36. P. W. 14 is one Munshi Ram who was a private Ayurvedic practitioner. He stated that about 3-4 months back Prem Dass came to him. He did not remember the exact date when he game to the witness. He stated that Prem Dass told him that heart of his wife was sinking and then he gave tablets to him, that is, Chloro Deza Paruksied, with the direction that one tablet be given there and then and other tablet after half an hour. After one hour Prem Dass again came to the witness and told him that medicine given by him had no effect and possibly his wife might have taken some drug. The witness then advised him to take her to the hospital.
37. Ex. PH is the report of the Chemical Examiner. The contents of the following containers were required to be chemically examined;
'1(A) A sealed bottle said to contain portion of stomach.
(B) A sealed bottle said to contain portion of large and small intestines.
(C) A sealed bottle said to contain liver, kidney and spleen.
(D) A sealed bottle said to contain solution of sodium chloride water
II A sealed glass bottle said to contain gastric lavage.
III A sealed parcel (Dabba) said to contain vomitting.
IV A sealed plastic dabba said to contain ashes.
V A sealed parcel said to contain iron tasla.
VI A sealed bottle said to contain DALF( 1/6 part of Dalf).
VII A sealed packet said to contain quick phos eight tablets.'
The result of the Chemical Examiner was as follows:
'An organophosphorus compound (an insecticide) was found in the contents of exhibits No. 1 (A), No. 1 (B), No. 1 (C), No. II, No. III, No. IV & No. V. The presence of anorganophosphorus compound was confirmed in the contents of exhibits No. VI, Aluminium phosphide was found in the contents of exhibit No. VII. No posion was found in the contents of exhibit No. 1(D).'
38. This is the entire evidence brought on record on behalf of the prosecution.
39. The accused persons during their examination conducted by the trial court denied the circumstances appearing against them in the prosecution evidence. They simply stated that it was correct that deceased Kamla Rani took some insecticide tablets on 6th June, 1987, and she suffered from excessive vomitting whereafter she was taken to the hospital by accused Prem Dass along with his relatives where she died at about 10.30 at night. The accused persons did not lead any defence.
40. The evidence examined by the prosecution, and as discussed above, makes out the following circumstances which require appreciation of this Court:
1. It has been proved that Smt. Kamla Rani was married to accused Prem Dass about 4-5 years prior to the occurrence;
2. Regarding the alleged illicit relations of accused Prem Dass with the other co-accused, who happened to be his brother's wife, the relatives of the deceased have tried to prove this fact by stating that they allegedly got this information from the deceased. But there is practically no specific date or time when such information was given by the deceased to her relatives examined during the trial. On the other hand various witnesses examined during the trial, belonging to the village of the deceased and the accused persons, have been unanimous in deposing that there were no illicit relations between the two accused or they were not in the knowledge of the same.
3. Regarding the maltreatment experienced by the deceased at the hands of her husband and other co-accused, there are general types of statements made by some relatives of the deceased though (P. W.10) Smt. Piar Devi, mother of the deceased, stated that the deceased had informed her regarding the alleged beatings given to her by her husband. This statement of the mother in view of the version given by the father of the deceased (P. W. 1) Dharam Singh, cannot be accepted as truthful version of this circumstance. Whatever P. W. 1 (Dharam Singh) stated was the information he had received from his wife P. W. I and P. W. I nowhere stated that P. W. 10 also informed him regarding the alleged beatings given by the husband of the deceased to her. P. W. I (Dharam Singh) tried to depose that the husband of the deceased used to maltreat the deceased but that has been stated in a general manner as his statement is silent as to what type of maltreatment was given, whether physical or only mental on account of iliicit relations. This fact of maltreatment has to be appreciated with this background.
4. There has been evidence examined regarding demanding of dowry by the husband of the deceased. Only one instance in this behalf has been narrated by the relative of the deceased and that too pertaining to the occurrence which took place at the time of marriage of Nasib Singh, the brother of the deceased. This occurrence, even if believed to be true, will not, in any manner, prove the fact that the husband of the deceased had been demanding dowry, either from the deceased or from her parents and he was annoyed with her on that account. There is evidence examined by the prosecution in this behalf which otherwise proved the fact that the husband was satisfied with whatever dowry he had received from his in laws at the time of his marriage. In this behalf the version given by the father of the deceased can safely be referred wherein he deposed that at the time of marriage of Prem Dass and Kamla Rani, Prem Dass had not demanded any dowry from him and whatever was given to him in dowry, he showed his satisfaction to that. In case Prem Dass was a dowry seeker of the magnitude of which he was accused now, his conduct in that behalf could have been reflected at the time of his marriage. Simply ' because at the time of marriage of Nasib Singh, Prem Dass had told his wife that he had spent Rs. 4000/- for the marriage of her brother but nothing had been given to him from the side of his father-in-law and at the time of his marriage very meagre dowry was given to him, it would not be inferred that Prem Dass has been demanding dowry and maltreating the deceased on that account. This version, in view of the statement given by the father of the deceased, referred to above, even if believed, will not have any legal weight in order to prove that Prero Dass had been demanding dowry.
5. It has also come in evidence that both the accused and the deceased had been residing together in the house of Prem Dass and whenever and as and when they went to the house of the parents of the deceased, they used to go together and they used to come together and even on the day of occurrence when the deceased had died, both of them had gone together to attend some Yagya and there was nothing unusual at that time between them from which it could be inferred that they were having strained relations to such an extent which could force the deceased to take her life.
6. The deceased, after consumption of poison by her, was taken by her husband Prem Dass to the hospital and not only that, he tried his best to contact the other medical practitioner to save her life. It was the husband of the deceased who took her on his back to the hospital. This conduct of accused Prem Dass has also to be kept in mind while deciding this case.
7. An important aspect of the matter, as has come in the statement of the doctor and other witnesses also, is that when the deceased was asked about the occurrence, she only stated that she had taken the tablets. The doctor who treated the deceased at the time of her admission in the hospital has, in very specific words disclosed that on his repeated questioning, the deceased stated in a slurred speech that she had consumed some insecticide tablets at home that evening. She did not state at all as to what forced her to take that ghastly step. She could name the accused; his behaviour towards her; his illicit relations with the other co-accused; the alleged beatings given to her, to be the cause of her taking that step. This aspect of the matter cannot be ignored at all.
8. It has come in evidence that the ladies witnesses examined by the police, were examined at such a stage when the male relatives had already been examined and who had asked those ladies to make statements in a particular manner.
9. Last, but not the least, an important factor which can easily be inferred from the circumstances established by the prosecution evidence, has been that the likelihood of making the FIR in a manner in which it has been done in order to connect the accused persons with the occurrence, after due consultation cannot be ruled out inasmuch as in case the alleged behaviour of the accused with the deceased was the result of bringing insufficient dowry or alleged illicit relations of the two accused, this fact could have been brought to the notice of the police itself, on the very first day when the father and maternal uncle of the deceased went to Hamirpur especially when all these alleged circumstances, at that time, were in their knowledge and they had the information about the same, as has been deposed by them during the trial. Recording of the FIR on 10-6-1987, whereas the occurrence took place on 6-6-1987 and that too when the police called P. W. 1 to the police station where P. W. 1 was alleged to have made the statement Ex. PA on 10-6-1987. No explanation for this delay has been made. This aspect of the matter in itself may not be fatal but is a circumstance to be appreciated and taken note of in the totality of the circumstances established in this case.
41. The appellants have been convicted under Sections 306/498-A IPC. Section 306 IPC deals with abetment of suicide. 'Abetment' has been defined under Section 107 IPC which comprises of instigation to do that thing which is an offence; engaging in any conspiracy for doing of that thing; and intentionally aiding by any act or illegal omission the doing of that thing while Section 108 defines an abettor as a person who abets either the commission of an offence of the commission of an act which would be an offence. The word 'instigate' in its ordinary sense means to incite, set or urge on, stir up, good, torment, stimulate, provoke etc.
42. At this stage Section 498-A IPC can also be referred which deals with the offence of cruelty of husband or relatives of husband committed towards woman. Explanation attached to this Section reads as under:
'Explanation:- For the purposes 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.'
43. Section 113-A of the Indian Evidence Act pertains to a presumption to be drawn as to abetment of suicide by a marriage woman. It reads as under:
'113-A 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 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 498-A of the Indian Penal Code (45 of 1860).'
44. On a plain reading of this provision it is very clear that if a wife is shown to have committed suicide within a period of seven years from the date of marriage and there is evidence that she was subjected to cruelty by her husband or his relative, it would be permissible for the Court to presume that such suicide was abetted by her husband or by such relative of her husband. The presumption arising out of the aforesaid provision of law is rebuttable one.
45. On the basis of the provision under Section 113-A of the Indian Evidence Act it has been contended very forcefully on behalf of the respondent-State that in the present case there are circumstances established during the trial that this presumption has not at all been rebutted. In think such an inference is most uncalled for if one goes through the circumstances established in this case during the trial which have been discussed in details, as aforesaid.
46. In the present case at the first instance the circumstances which have been alleged against the accused persons have not been proved beyond all reasonable doubt. The alleged illicit relations of the two accused persons, have been stated to be so by the relative witnesses of the deceased who got this information from the deceased earlier to the occurrence but in spite of that no effective steps have been taken by those concerned relatives in favour of the deceased on this account. The residents of the village did not support this version at all and they have been unanimous in deposing that no complaint was made to them or to the Panchayat by the deceased in this behalf. Similarly, the factum of alleged maltreatment, including the alleged beatings given to the deceased by her husband, as stated by P. W. 10, the mother of the deceased also does not stand legally established beyond all reasonable doubt. The factum of dowry, being sought by accused Prem Dass, is also rendered very much doubtful. Not only that, the conduct of the deceased and that of Prem Dass and that of P. W. 1, the father of the deceased, and her other relative-witnesses lead to the sole conclusion that this is a case where the prosecution has not been successful in discharging the onus of proving the guilt beyond all reasonable doubt which laid heavily on it. Under the law, the benefit has to be enjoyed by the accused and none-else.
47. It is proved that the deceased committed suicide. Why she did so? there is no specific answer brought on record by the prosecution. At least the accused have not at all been connected with the said suicide by legally competent evidence.
48. In State of West Bengal v. Orilal Jaiswal, : 1994CriLJ2104 , the Apex Court observed that' the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpries to the Court that a victim committing suicide was hyper-sensitive to ordinary petulance dischord and difference in domestic life quite common to the society to which the victim belonged and such petulance dischord and difference were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.'
49. In the present case the deceased had sufficient time to disclose to the doctor and to other witnesses, before her death with respect to the cause of her committing the suicide. She only stated that she took insecticide tablets but did not connect the accused persons even remotely. It was the relatives of the deceased who after 2-3 days reported the matter to the police in the manner referred to in the FIR Ex. PA alleging accused persons to be responsible for this entire occurrence. What to speak of Section 306 IPC, the ingredients of Section 498A IPC also not stood legally established. Clauses (a) and (b) of the explanation attached to Section 498-A IPC cannot be attracted to for want of legal evidence in this behalf.
50. The trial Judge appears to have been influenced by the factum of general tendency, being reported in the newspapers regarding the young brides committing suicide on account of dowry demand and other maltreatment meted to such young brides at the hands of their husbands or in-laws, than the actual facts proved in this particular case. The trial Court's influence, as referred to in this behalf, is reflected from paragraph 15 of the judgment wherein it has been observed that 'repeated instances of dowry death were being highlighted in various newspapers in the country. There were also social organizations focussing the attention of public on this issue. It has also been observed that to ventilate the grievacnes about atrocities on newly married brides due to dowry or other such similar demands from their husband or in-laws women social workers had taken up the cause in a movement in the country and due to the effective persuation by such social compulsions. Section 498-A IPC and Section 113-A Evidence Act have been introduced on December 25, 1983. The trial Court also referred that the said provisions are obviously intended to cure the existing evil in the society. The evil at many times resulted in atrocities on married woman and various acts and cruelty were being practised....'
51. The correctness of aforesaid observations of the trial Court cannot be disputed at all but such observations should not influence the mind of the Court in order to dispose of a criminal case in the manner in which is has been done in the present case without properly and correctly appreciating the evidence examined during the trial in order to connect the accused persons for the offences for which they have been charged with, to face the trial. In a criminal case two factors are always to be kept in mind while passing final order. The first being that the prosecution has to stand on its own legs to prove the guilt against the accused beyond all reasonable doubt and that too by leading independent, reliable and unimpeachable evidence. The second factor is that any doubt appearing in the prosecution evidence has to be wieghed in favour of the accused and not in favour of the prosecution. In the present case, as has already been pointed out, the prosecution has not been successful in proving the charges beyond all reasonable doubt against the accused persons through legally competent evidence and otherwise also the circumstances discussed earlier make the story of the prosecution to be of doubtful nature.
52. In view of the foregoing reasons, the present appeal is accepted and the conviction and sentence, as referred to earlier, passed against the accused-appellants are set-aside. They are acquitted of the charges framed against them. The fine, if paid, be returned to the appellants and the bail bonds furnished by them stand discharged.