S.K. Sahoo, J.@mdash1. The appellant Prakash Naik along with his parents Deba Naik and Lalita Naik and younger brother Babula Naik faced trial in the Court of Additional Sessions Judge, Bhanjanagar in Sessions Case No. 46 of 2003 for offences punishable under sections 498A, 304-B, 302/34 and 406 of the Indian Penal Code and section 4 of the Dowry Prohibition Act, 1961.
The learned Trial Court vide impugned judgment and order dated 20.09.2006 acquitted the co-accused persons of all the charges so also the appellant of the charge under sections 302/34 and 406 of the Indian Penal Code but found him guilty under sections 498-A, 304-B of the Indian Penal Code and section 4 of the Dowry Prohibition Act. The appellant was sentenced to undergo rigorous imprisonment for ten years for the offence under section 304-B of the Indian Penal Code and rigorous imprisonment for three years and to pay a fine of Rs. 2000/-, in default, to undergo imprisonment for two months under section 498-A of the Indian Penal Code and both the sentences were directed to run consecutively. No separate sentence was awarded for the offence under section 4 of the Dowry Prohibition Act.
2. The prosecution case as per the First Information Report lodged by Bipra Naik (P.W.2) before the Inspector in-charge, Bhanjanagar Police Station on 07.05.2003 is that his daughter Sunitarani Naik (hereafter ''the deceased'') had married the appellant on 06.03.2003 and after marriage the bride and bridegroom lived happily and peacefully for about a month but thereafter the appellant being incited by his family members started demanding Rs. 5000/- and a cycle. The deceased conveyed the demand of the appellant to the informant who in turn gave assurance to fulfill such demand within two to four months. The appellant started torturing the deceased physically and mentally. Even the mother-in-law, father-in-law, brother-in-law and sister-in-law of the deceased were also assaulting her and insisting for fulfillment of cash and cycle demand and threatening the deceased with dire consequences in the event of non-fulfillment of such demand. Though the deceased communicated about her suffering to the informant but the latter did not give much importance on it. It is further stated in the FIR that on 5.5.2003 night, the appellant and his family members assaulted the deceased, poured kerosene on her and set her on fire in the backyard of their house. Getting such message, the informant rushed to Bhanjanagar Hospital and found the charred body of the deceased. He suspected that the accused persons had killed the deceased. Since he lost his mental balance, there was delay in lodging the FIR.
Prior to the lodging of F.I.R. by P.W.2, on receipt of a written report on 06.05.2003 from Dr. Alekh Chandra Sahoo (P.W.6), Medical Officer, S.D. Hospital, Bhanjanagar regarding the death of the deceased on account of massive burn injuries, P.W.16 Devi Prasad Chakravaraty, Inspector in-charge, Bhajanagar Police station registered Bhanjanagar P.S. U.D. Case No. 11 of 2003 and took up inquiry. During course of inquiry, he visited S.D. Hospital, Bhanjanagar, examined P.W.6 and other witnesses, held inquest over the dead body of the deceased on 6.5.2003 at about 8.00 a.m. in presence of the Executive Magistrate and prepared inquest report Ext. 1. He sent the dead body for post mortem examination to S.D. Hospital, Bhanjanagar and seized some burnt ashes and a burnt plastic jerricane and a piece of burnt cotton saree from the spot in village Jogimari under seizure list Ext. 10. He also seized the command certificate, some broken bangles and a saree of the deceased under seizure list Ext. 8.
On 07.05.2003 after receipt of the written report from P.W.2, P.W.16 drew up formal F.I.R. and accordingly Bhanjanagar P.S. Case No. 65 dated 07.05.2003 was registered under sections 498-A, 304-B, 302/34 of the Indian Penal Code and section 4 of the Dowry Prohibition Act against the petitioner and his family members. The I.O. examined the informant and other witnesses, visited the spot and prepared spot map Ext. 12. He also seized the list of dowry articles Ext. 9 on the production by the informant under seizure list Ext. 3. The dowry articles were seized from the house of the appellant under seizure list Ext. 4 and those were given in the zima of the informant after executing Zimanama Ext. 5. The appellant was arrested on 08.05.2003 and he was forwarded to the Court of S.D.J.M., Bhanjanagar on 09.05.2003. On the prayer of the Investigating Officer, the seized exhibits were sent to R.F.S.L., Berhampur by S.D.J.M., Bhanjanagar for chemical analysis and accordingly the chemical examination report Ext. 14 was received in Court. On 22.05.2003 the Investigating officer received the post mortem examination report Ext. 7 and after completion of investigation, charge-sheet was submitted on 26.07.2003 against four accused persons including the appellant under sections 498-A, 304-B, 406/34 of the Indian Penal Code and section 4 of the Dowry Prohibition Act.
3. After submission of charge sheet, the case was committed to the Court of Session for trial after observing due committal procedure where the learned Trial Court charged the appellant and co-accused persons Deba Naik, Smt. Lalita Naik and Babula Naik under sections 498-A, 304-B, 302/34 and 406 of the Indian Penal Code and section 4 of the Dowry Prohibition Act on 08.12.2003 and since the appellant and other co-accused persons refuted the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute them and establish their guilt.
4. In order to prove its case, the prosecution examined sixteen witnesses.
P.W.1 Bijaya Naik was the gramarakhi under Bhanjanagar Police Station who is a witness to the inquest over the dead body held at Bhanjanagar S.D. Hospital on 06.05.2003 under inquest report Ext. 1. He accompanied the dead body for post mortem examination and proved the dead body challan Ext. 2. He also produced the bangles and saree of the deceased before the Investigating Officer which were handed over to him by the doctor conducting post mortem examination.
P.W.2 Bipra Kumar Naik is the father of the deceased and he is the informant in the case. He stated about the demand of money by the appellant. He is also a witness to the seizure of dowry articles under seizure list Ext. 4 which he took in zima under zimanama Ext. 5.
P.W.3 Dr. Susant Kumar Mishra was the Assistant Surgeon attached to S.D. Hospital, Bhanjanagar who conducted autopsy over the dead body of the deceased on 06.05.2003 and opined the cause of death was due to burn injury and mode of death was asphyxia. He proved the post mortem report Ext. 7.
P.W.4 Rajendra Kumar Naik is the paternal uncle of the deceased. He stated about the disclosure made by the deceased regarding demand of money by the appellant for starting a business and as the deceased refused to bring such money, she was assaulted by the appellant. He also stated about the payment of cash of Rs. 6,500/- by the informant to the appellant towards his demand on the marriage altar. He stated to have visited the deceased while she was admitted as an indoor patient at S.D. Hospital, Bhanjanagar and found kerosene smell was coming from the charred body of the deceased. He is also an inquest witness.
P.W.5 Hemant Kumar Naik stated that the deceased told before her parents that the appellant was assaulting her for money. He further stated that at S.D. Hospital, Bhanjanagar, the deceased was telling "MOTE PODI DELE" but she did not disclose who the persons who set her ablaze were.
P.W.6 Dr. Alekh Chandra Sahoo was the Surgery Specialist at S.D. Hospital, Bhanjanagar who stated about the death of the deceased in the hospital as well as his intimation to the IIC, Bhanjanagar Police Station regarding such death.
P.W.7 Haraprasad Pati did not support the prosecution case.
P.W.8 Smt. Namani Naik stated about the death of the deceased after two months of her marriage.
P.W.9 Loknath Bisoi was the Executive Magistrate, Bhanjanagar who was present at the time of inquest over the dead body and proved the inquest report Ext. 1.
P.W.10 Ganga Naik was the Gramarakhi attached to Bhanjanagar Police Station who stated about the seizure of a saree and broken bangles and command certificate under seizure list Ext. 8.
P.W.11 Purusottam Naik was the paternal uncle of the deceased and he stated about the disclosure made by the deceased regarding physical assault on her by the appellant as demand of money was not fulfilled by her father. He is also a witness to the inquest over the dead body.
P.W.12 Balya Naik stated about the seizure of dowry articles by police from the house of the accused persons under seizure list Ext. 4 and also about the seizure of a list of dowry articles given to the appellant.
P.W.13 Bibhisana Naik is a witness to the seizure of the articles brought by the deceased from the house of the accused persons under seizure list Ext. 4. He also stated about the seizure of one plastic jerrycane, ashes, burnt saree piece under seizure list Ext. 10.
P.W.14 Haribala Naik stated about the deceased lying with burn injuries in the latrine situated in the backyard of the house of the appellant.
P.W.15 Murali Naik did not support the prosecution case for which he was declared hostile.
P.W.16 Devi Prasad Chakravaraty was the Inspector in-charge, Bhanjanagar Police Station who is the Investigating Officer.
The prosecution exhibited fifteen documents. Ext. 1 is the inquest report, Ext. 2 is the dead body challan, Ext. 3 is the seizure list, Ext. 4 is the seizure list of the dowry articles, Ext. 5 is the zimanama, Ext. 6 is the First Information Report, Ext. 7 is the post mortem report, Ext. 8 is the seizure list, Ext. 9 is the list of dowry articles, Ext. 10 is the seizure list, Ext. 11 is the formal report (FIR), Ext. 12 is the spot map, Ext. 13 is the office copy of forwarding letter, Ext. 14 is the chemical examination report and Ext. 15 is the command certificate.
5. The defence plea of the appellant was one of denial and it is pleaded that it was a case of accidental fire for which the deceased sustained burn injuries.
Three witnesses were examined on behalf of the defence.
D.W.1 Khali Pradhan stated that the latrine which was erected for the newly wedded bride was made up of palm and coconut leaves which caught fire and the deceased sustained burn injuries.
D.W.2 Lalita Naikani is the mother-in-law of the deceased who also stated about the deceased receiving burn injuries due to accidental fire in the latrine.
D.W.3 is the appellant himself who also stated about the deceased receiving burn injuries on account of accidental fire and he shifted the deceased for treatment to Bhanjanagar Hospital.
6. The learned Trial Court has been pleased to hold that the prosecution has failed to establish by complete and conclusive chain of circumstances that the accused persons are guilty under section 302/34 of Indian Penal Code beyond reasonable doubt. The learned Trial Court further held that the prosecution has been able to prove that the death of the deceased was caused otherwise than under normal circumstance on account of 100% burn injuries and such death of deceased Sunita taking place within two months of her marriage. It was further held that the evidence of P.Ws.2, 4 and 11 established that the deceased was subjected to cruelty and harassment by the appellant in connection with demand of dowry soon before her death. The learned Trial Court further held that in absence of any explanation as to how the cloth of the deceased Sunita came in contact with kerosene oil, it is hard to believe the plea of the defence that the deceased met with her death due to accidental fire from Dibi. The learned Trial Court further held that it can be postulated that the appellant had failed to establish his plea of defence as to the death of the deceased by preponderance of probabilities. The learned Trial Court further held that the evidence of P.W.2 appeared to be worthy of acceptance and in view of clear, cogent and corroborative evidence of the father, paternal uncle coupled with the forensic report, the delay of some hours in lodging the report cannot be said to be fatal affecting the veracity of the prosecution case.
7. Adverting over the nature and the cause of death of the deceased, I find that apart from the inquest report Ext. 1, the prosecution has also relied upon the evidence of P.W.3 Dr. Susant Kumar Mishra who was attached to S.D. Hospital, Bhanjanagar as Asst. Surgeon and he conducted the post mortem examination over the cadaver of the deceased on 06.05.2003 and found that the deceased had sustained 100% burn injuries and opined the cause of death was due to burn injuries and mode of death was asphyxia. He proved the post mortem report Ext. 7.
Mr. Arunendra Mohanty who was engaged as amicus curiae for the appellant contended that it was a case of accidental fire and the deceased had been to attend the call of nature at the time of occurrence holding a Dibi (lamp) to the latrine which was made up of coconut leaves and palm leaves and was raised for the newly married bride. It is further contended that when the deceased caught fire accidentally, she was brought by the co-villagers from the latrine to outside and then she was shifted to the hospital.
The Investigating Officer has stated that the place where the deceased was burnt was at a distance of 30 feet away from the backdoor of the house of the appellant and there was dry fence on the backside of the house of the accused persons and there was space in between the backdoor of the house of the appellant and the place of burning of the deceased. He further stated that the temporary shed was made up of palm and coconut leaves which was used as bath room and latrine. P.W.16 further stated that he seized some burnt ashes, a plastic jerrycane which was in a burnt condition and a cotton saree in a burnt condition from inside the latrine under seizure list Ext. 10.
The defence plea is that it was a case of accidental fire. The contentions that as the deceased had carried a Dibi (lamp) with her to the latrine to attend call of nature, probably the palm leaves and coconut leaves came in contact with the lamp for which she sustained burn injuries cannot be accepted as no lamp was found from inside the latrine. Had it been a case of accidental fire, in ordinary course of nature the deceased on seeing the fire would have tried to escape from the latrine to save her and she could have succeeded easily as the entire structure was made up of palm leaves and coconut leaves and the doors of latrine were made up of coconut leaves. She would have raised hulla to draw the attention of others to the place of burning and in any case, she would not have sustained 100% burn injuries in such a situation. Nobody including the mother-in-law of the deceased who was present in a close vicinity to the spot has stated to have heard any shrieks of the deceased at the time of occurrence. The instinct of survival would have made the deceased to run into an open place or rolled on the floor or poured water on her body which she might have carried with her to the latrine but in this case, the record does not indicate that any such attempt was made by the deceased. Thus, the circumstances do not suggest that it was not a case of accidental fire.
Even though the doctor conducting post mortem examination while opining the cause of death was due to burn injuries stated that he did not find smell of kerosene from the charred body but kerosene oil was detected from the burnt ashes and burnt piece of cotton saree collected from the spot by the I.O. which were sent for chemical analysis. P.W. 4 has also stated that kerosene smell was coming from the charred body. In my humble view, the smell of kerosene might have evaporated in between the time of occurrence till the post mortem examination because the occurrence had taken place on 5.5.2003 in the evening hours and the deceased was admitted at S.D. Hospital, Bhanjanagar at 11.50 p.m. on the very day of occurrence and expired at 1.35 a.m. on 6.5.2003 as per the evidence of doctor (P.W.6) whereas the post mortem examination was conducted on 6.5.2003 at 2.30 p.m.
In the case of Madan Gopal Kakkad v. Naval Dubey reported in , (1992) 3 Supreme Court Cases 204, it was observed as under:
"34. A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although, not an expert may form its own judgment on those materials after giving due regard to the expert''s opinion because once the expert''s opinion is accepted, it is not the opinion of the medical officer but of the Court."
Of course no kerosene oil was found in the burnt piece of plastic jerrycane on chemical analysis but P.W.4 has stated that smell of kerosene was coming from the jerrycane which was lying in the backyard of the house of the accused persons which he handed over to police. Even though there are no materials on record to show that it was a case of homicidal death but circumstances suggest that it was case a suicidal death. Thus I am of the view that the death of the deceased was due to suicidal burning.
8. Mr. Arunendra Mohanty, learned amicus curiae contended that there is no clinching material that the appellant demanded dowry and he subjected the deceased to cruelty and harassment in connection with any demand for dowry soon before her death and therefore the conviction of the appellant under section 304-B of the Indian Penal Code is misconceived. He further contended that there are materials on record that the appellant and the deceased were leading a happy conjugal life. He emphasized on the conduct of the appellant in shifting the deceased to hospital for treatment of the burn injuries and urged that it is a fit case where benefit of doubt should be extended in favour of the appellant.
Mr. Dillip Misra, learned Addl. Government Advocate on the other hand contended that the death took place within two months of marriage and the witnesses who are related to the deceased have stated that the deceased complained before them against the conduct of the appellant in demanding money and assaulting her. The learned counsel further contended that the seizure of list of dowry articles on being produced by the father of the deceased as well as the seizure of the dowry articles are corroborative evidence which lend support to the ocular testimony. The learned counsel further urged that once the accidental fire theory is ruled out, whether it is a case of homicidal death or suicidal death can certainly bring it within the purview of section 304-B of the Indian Penal Code as it is the death which had occurred otherwise than under normal circumstances. The learned counsel while placing the relevant parts of the Trial Court judgment contended that there is no infirmity or illegality in the conclusions arrived at by the learned Trial Court and therefore there is no scope for interference in the impugned judgment and order of conviction.
9. In order to attract the ingredients of offence under section 304-B of the Indian Penal Code, the prosecution is required to prove the following aspects:--
"(i) The death of a woman should be caused by burns or bodily injury or otherwise than under normal circumstances;
(ii) Such a death should have occurred within seven years of her marriage;
(iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband;
(iv) Such cruelty or harassment should be for or in connection with demand of dowry;
(v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death."
It becomes obligatory on the Court to raise a presumption as to ''dowry death'' under section 113-B of the Indian Evidence Act on proof of the following essentials:--
"(1) The question before the Court must be whether the accused has committed the ''dowry death'' of the woman;
(2) The woman was subjected to cruelty or harassment by her husband or his relatives;
(3) Such cruelty or harassment was for or in connection with any demand for dowry;
(4) Such cruelty or harassment was soon before her death."
The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of "death occurring otherwise than in normal circumstances".
There is no dispute that one of the criteria of section 304-B of the Indian Penal Code that the death should have occurred within seven years of marriage of the woman has been fulfilled in the case inasmuch as the marriage between the appellant and the deceased had taken place on 6.3.2003 and death of the deceased took place in the intervening night of 5.5.2003 and 6.5.2003 i.e. within two months of marriage.
I have already held that the death of the deceased was due to suicidal burning and therefore the other criteria that the death of a woman should be caused by burns or bodily injury or otherwise than under normal circumstances has also been fulfilled.
Now it is to be seen whether the other requirements that the deceased was subjected to cruelty or harassment by the appellant soon before her death in connection with demand for dowry has been fulfilled or not.
P.W.2 is the father of the deceased and he has stated that the deceased and the appellant visited his house ten days after marriage and during that period, he found that the deceased was sad and when he asked her regarding the reason of her sadness, she disclosed that the appellant at the instance of his family members asked her to bring some more money. P.W.2 further stated that he told the deceased about his poor financial condition but assured her to give some money after a few months. He also asked the deceased to stay for two to three months so that he would arrange the money and thereafter she would proceed to her in-laws'' house but the appellant did not agree and took away the deceased to his house. It has been confronted to P.W.2 and proved through the I.O. that he has not stated in his statement recorded under section 161 Cr.P.C. regarding sadness of the deceased and regarding her disclosure about the demand of money by the appellant at the instance of his family members. P.W.2 has stated that after the marriage, he did not visit the house of the appellant till the death of the deceased. He has further stated that he was not aware as to what was happening with the deceased in the house of the appellant. He has further stated that after the departure of the appellant and the deceased after staying for seven days in his house, he and his family members were shifted to Bhubaneswar and stayed there and he did not meet any of the accused persons or the deceased till her death. His evidence is silent regarding any demand of dowry by the appellant at the time of marriage or any kind of cruelty or harassment on the deceased either by the appellant or any of his family members. He admits that in the F.I.R. he has mentioned that after marriage the deceased and the appellant resided happily for about a month which is correct. P.W.2 has alleged against the appellant and his family members in the First Information Report regarding demand of dowry and torture on the deceased but FIR is not substantive piece of evidence and cannot be treated as such and can only be used to corroborate the statement of the maker under section 161 of the Evidence Act or to contradict him under section 145 of that Act. In a case of dowry related torture case, parents of the woman or relatives of the woman from her father''s side are the best witnesses inasmuch as fulfillment of demand is expected from their side and the victim use to communicate them about her sufferings. When a vital witness like P.W.2 is silent in his evidence in Court on the most important aspects of the prosecution case like cruelty or harassment on the deceased in connection with demand of dowry, it puts a question mark on the credibility of the prosecution case or in other words gives a death-knell to the prosecution case.
P.W.4 is the paternal uncle is the deceased who has stated that for about a month after the marriage, the deceased was living happily in the house of accused persons and after lapse of one month of the marriage, he had been to the house of the appellant to bring the deceased to the house of her father and at that time he found that there were some black marks on the face of the deceased and the deceased disclosed before him that there was illegal demand of money and she was persuaded to go to her father''s house and to bring some money in order to facilitate the appellant to start a business and when she refused, she was assaulted by the appellant. He further stated that on the marriage altar, as per the demand of the appellant, cash of Rs. 6,500/- was paid by the informant towards dowry. Such a statement by P.W.4 regarding giving of money on the marriage altar as per the demand of the appellant cannot be accepted as P.W.2 is silent over this aspect. It has been confronted to P.W.4 and proved through the I.O. that neither he has stated in his statement recorded under section 161 Cr.P.C. about payment of Rs. 6000/- by the informant nor about the assault by the appellant to the deceased demanding more money. Thus the evidence of P.W.4 regarding demand of dowry by the appellant and torture on the deceased in connection with such demand does not inspire confidence and therefore cannot be accepted.
P.W.5 who is a co-villager of P.W.2 has stated that one and half months of marriage of the deceased, he had been to the house of P.W.2 where he found the deceased was crying and telling her parents that the appellant was assaulting her and insisting her to bring more money from her father. Such a statement cannot be accepted as P.W.2 is silent over such aspect and more particularly when P.W.5 has made such statement for the first time in Court and not stated it before the Investigating Officer which has been duly proved by the defence. As per the evidence of P.W.2, the deceased had come only once to his house after ten days of her marriage with the appellant and stayed there for seven days and thereafter P.W.2 even left the village and settled at Bhubaneswar. Thus the evidence of P.W.5 is also no way helpful to the prosecution in any way.
P.W.11 is another paternal uncle of the deceased who has stated that seven to eight days prior to her death, he had been to the house of the appellant where the deceased complained before him that the appellant assaulted her as money was not given to him by her father. This statement has also not been made by P.W.11 before police during investigation but made for the first time in Court which has been duly proved. Even the informant (P.W.2) has not stated about such aspect. In ordinary course of nature, P.W.11 would have disclosed such matter to P.W.2. Thus the evidence of P.W.11 also does not inspire confidence.
P.W.8 was residing in the neighbourhood of the appellant and she was the sister of the grandmother of the deceased and was present at the time of marriage. She has stated that there was no demand of dowry and the appellant and the deceased were pulling on well and after return of the deceased from her father''s house, she called her to her house and the deceased stayed with her for the entire day but she did not disclose that she was put to any sort of harassment or cruelty in the house of the appellant or there was any demand of money by the appellant towards dowry nor she made any complain against the appellant for assaulting her.
P.W.12 also stated that after the marriage, the deceased was leading a happy conjugal life with her husband.
P.W.11 has stated that the deceased was brought to the hospital by the appellant and his brother along with their co-villagers to Bhanjanagar in a cot. P.W.12 has also corroborated such aspect and stated that the appellant had gone to river side at the time of occurrence and hearing about the incident, he came running to the spot and took the deceased to the hospital along with others. The conduct of the appellant in taking the deceased after the incident to save her life is a plus point in his favour and the same is admissible under section 8 of the Evidence Act.
In view of what has been discussed above, I am of the view that the prosecution has miserably failed to establish that the deceased was subjected to cruelty or harassment by the appellant soon before her death in connection with demand for dowry. Therefore even though the prosecution has established that the death of the deceased occurred within seven years of marriage and she died on account of suicidal burning but the prosecution having failed to establish that the appellant subjected the deceased to cruelty or harassment in connection with demand of dowry, all the necessary ingredients of the offence under section 304-B of the Indian Penal Code are not satisfied and therefore, there is no question of raising presumption under section 113-B of the Evidence Act against the appellant and accordingly, the appellant is acquitted of the charge under section 304-B of the Indian Penal Code.
10. Section 498-A of the Indian Penal Code deals with cruelty to a woman by her husband or the relative of her husband. ''Cruelty'' has been defined in the Explanation for the purpose of section 498-A of I.P.C. It lays emphasis on the degree of willful conduct of the accused. The cruelty can either be mental or physical. Unless there are materials that the accused deliberately caused such mental or physical agony to the woman that there is chance of losing mental equilibrium which is likely to drive her to commit suicide or to cause grave injury or danger to her life, limb or health, the ''cruelty'' aspect will not be satisfied. It also covers any kind of harassment to the woman to coerce her or any person related to her to meet any unlawful demand. The Court has to weigh the gravity or seriousness of the act of the accused and its effect on the woman. No straight jacket formula can be there to decide what would be ''cruelty''. The concept of cruelty would depend upon the facts and circumstances of each case and it would vary from individual to individual, the social and economic status of the parties, their temperament, the society in which the parties are living, the social background, the environment and education etc. Sometimes a single incident in the marital life may develop a feeling in the woman a sense of complete frustration that being alive or dead is equally meaningless to her. However in some cases even daily petty domestic quarrels between the husband and wife will not attract the term ''cruelty''.
In the case in hand as already discussed, there is no clinching material that the appellant subjected the deceased to cruelty. The visit of the appellant and the deceased together to the house of P.W.2 as per custom ten days after marriage, non-raising of any complain by the deceased against the appellant or any of her in-laws before her parents coupled with the statements of P.W.8 and P.W.12, it is manifestly clear that the deceased was living a happy conjugal life. Therefore, I am of the view that the prosecution has failed to establish the charge under section 498-A of the Indian Penal Code against the appellant beyond all reasonable doubt and accordingly the appellant is acquitted of the charge under section 498-A of the Indian Penal Code.
11. So far the offence under section 4 of Dowry Prohibition Act is concerned, as was amended by means of Act 63 of 1984, it is an offence to demand dowry directly or indirectly from the parents or other relatives or guardian of a bride. As already discussed P.W.2 is totally silent that there was any demand of dowry either prior to the marriage or at the time of marriage. The statement made by P.W.2 that when the deceased visited his house ten days after marriage, she disclosed that the appellant at the instance of his family members told her to bring some more money cannot be accepted as such a statement was made for the first time in the Court. The statements of P.W.4, P.W.5 and P.W.11 in that respect, as already discussed are full of contradictions and exaggerations and therefore it is very difficult to place reliance on such testimony of the witnesses to convict the appellant under section 4 of Dowry Prohibition Act. Merely because a list of articles was produced by the informant before the Investigating Officer or some articles were seized from the house of the appellant after the occurrence and given in the zima of the informant, it cannot be said that those articles were ''dowry articles''. Accordingly, the appellant is acquitted of the charge under section 4 of the Dowry Prohibition Act.
12. A question may arise as to why the deceased committed suicide by burning herself within two months of marriage if everything was alright? The prosecution witnesses attributed some reasons raising accusing fingers at the conduct of the appellant which was found to be not acceptable. It is the duty of the prosecution to prove its case beyond all reasonable doubt. Merely because the appellant failed to put forth any satisfactory reasons for commission of suicide by the deceased, he cannot be convicted for the offences charged. Since the prosecution has failed to discharge the initial burden of establishing prima facie the guilt of the appellant beyond all reasonable doubt, the benefit must be given to the appellant.
13. In the result, I am of the view that the prosecution has failed to establish the charges under sections 498-A and 304-B of the Indian Penal Code and section 4 of the Dowry Prohibition Act against the appellant beyond all reasonable doubt. Accordingly, the appeal is allowed. The impugned judgment and order of conviction of the appellant passed by the learned Trial Court and the sentence passed there under is hereby set aside. The appellant is acquitted of all the charges.
The appellant who is on bail is discharged from liability of the bail bonds. His personal bonds and the surety bonds, if any, stand cancelled.
Before parting with the case, I would like to put on record my appreciation to Mr. Arunendra Mohanty, the learned Amicus Curiae for rendering his valuable help and assistance towards arriving at the decision above mentioned. The learned Amicus Curiae shall be entitled to his professional fees which is fixed at Rs. 2,500/-.
Lower Court Records with a copy of this judgment be sent down to the learned Trial Court forthwith for information and necessary action.
