JUDGMENT :- The applicant-original complainant - brother of the victim Vijaya has preferred the present revision application against the order of acquittal passed by the 4th Additional Sessions Judge Aurangabad dated 129-2000, in Sessions Case No.34 of 1998, for the offence punishable under sections 498-A, 306, 304-B read with section 34 of the Indian Penal Code (IPC). 2. The deceased married to accused No.2 on 17-5-1997. An amount of Rs.25,000/and other household articles were given at the time of marriage. Respondent No.2 -accused on the second day of the marriage itself expressed his displeasure as a TV set and a gold finger ring were not provided. But assurance was given as alleged. Till the festival of Nagpancharni there was no ill-treatment reported by the deceased to her parents. But when she came for the festival of Nagpanchami she exploded her feelings in view of the ill-treatment faced by her for non providing, as demanded, the TV set and gold ring. She was abused and also beaten by respondent No.2 accused. The deceased's parents requested the accused - husband not to ill-treat her when he came after 7 days to take her back to matrimonial home. As alleged, the parents promised the accused to fulfill his demand after getting money from cotton sale. All this thing happened within a span of less than four months from the date of marriage. 3. On 3-9-1997 at about 5.00 a.m. one Tatyasaheb Borse informed that the deceased had consumed poison and died. The complainant visited the hospital where her dead body was lying. In this background the complainant lodged the complaint at Kannad Police Station which was registered as Crime No.1-108/1997 on the same day. 4. The investigating agency thereafter proceeded and recorded the statement of witnesses. The charge-sheet was filed against the accused in the Court of the Judicial Magistrate First Class at Kannad. The case was committed to the Court of Sessions at Aurangabad. The charge was framed against the accused. They pleaded not guilty. There was no specific defence raised except denial in the statements under section 313 of the Code of Criminal Procedure (Cr.P.C.). 5. The defence admitted the spot panchanama, inquest panchanama, attachment of articles and arrest panchanama but not examined any witnesses. The prosecution examined PW 1 Dr. Kailash Bavaskar, PW 2 Kailas Nalawade (complainant), PW 3 Gorakhnath Nalawade (brother). There was no specific defence raised except denial in the statements under section 313 of the Code of Criminal Procedure (Cr.P.C.). 5. The defence admitted the spot panchanama, inquest panchanama, attachment of articles and arrest panchanama but not examined any witnesses. The prosecution examined PW 1 Dr. Kailash Bavaskar, PW 2 Kailas Nalawade (complainant), PW 3 Gorakhnath Nalawade (brother). PW 4 Shyamsingh (mediator), PW 5 Investigating Officer (10) PSI Madhukar Savant. All this culminated into the impugned order of acquittal. 6. Heard learned counsel appearing for the petitioner and the learned Additional Public Prosecutor for the State. 7. None appears for respondent 2 to 4 - accused though the matter was called out on 19-7-2006 and today i.e. 20-7-2006 from the published Board of final hearing. 8. The basic provision is Section 113-A of the Indian Evidence Act which reads. "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 the husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstance 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)." 9. The crucial sections of the IPC are Sections 498-A and 306 which read: "498-A. Husband or relative of husband of a woman subjecting her to cruelty. Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.- For the 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. “Abetment of suicide.- If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." 10. Section 311 of the Criminal Procedure Code (Cr.P.C.) reads thus: "ill Power to summon material witness, or examine person present.- Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and reexamine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case." 11. The Apex Court while considering this provision and especially Section 498-A of the IPC and Section 113-A of the Evidence Act, in Sahebrao Vs. State of Maharashtra ( 2006(5) Scale 172 : 2006 ALL MR (Cri) 1842 (S.C.)) after considering the explanation to Section 498-A, IPC, has illustrated that for the purpose of this section cruelty includes mental as well as physical cruelty of the woman in the following paragraphs :- "14. In Pawan Kumar and Others Vs. State of Haryana, (1998)3 SCC 309 , this Court observed: "……. cruelty or harassment need not be physical. Even mental torture in a given case would be a case of cruelty and harassment within the meaning of Sections 304-B and 498-A IPC. In Pawan Kumar and Others Vs. State of Haryana, (1998)3 SCC 309 , this Court observed: "……. cruelty or harassment need not be physical. Even mental torture in a given case would be a case of cruelty and harassment within the meaning of Sections 304-B and 498-A IPC. Explanation (a) to Section 498A itself refers to both mental and physical cruelty .... Again wilful conduct means, conduct wilfully done; this may be inferred by direct of indirect evidence which could be constituted to be such ..... A girl drame of great days ahead with hope and aspiration when entering into a marriage, and if from the very next day the husband starts taunting her for not bringing dowry and calling her ugly, there cannot be greater mental torture, harassment or cruelty for bride ...…...” "15. In Gananath Pattnaik Vs. State of Orissa, (2002)2 SCC 619 , this Court specifically mentioned: "The concept of cruelty and its effect varies from individual to individual to individual, also depending upon the social and economic status to which such person belongs. "Cruelty" for the purposes of constituting the offence under the aforesaid section need not be physical. Even mental torture or abnormal behaviour may amount to cruelty and harassment in a given case"." "16. In Mohd. Hoshan and another Vs. State of A.P., (2002)7 SCC 414 , it was pointed out that: "……. The impact of complaints, accusations or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the individual victim concerned, the social background, the environment, education etc. Further mental cruelty varies from person to person depending on the intensity of sensitivity and the degree of courage of endurance to withstand such mental cruelty. "20. Similarly, in Hans Raj Vs. State of Haryana, (2004)12 SC 257 (in para 13), this Court opined that : “………Under Section 113-A of the Indian Evidence Act, the prosecution has first to establish that the woman concerned committed suicide within a period of seven years from the date of her marriage and that her husband (in this case) had subjected her to cruelty. Even if these facts are established the court is not bound to presume that the suicide had been abetted by her husband. Even if these facts are established the court is not bound to presume that the suicide had been abetted by her husband. Section 113-A gives discretion to the court to raise such a presumption, having regard to all the other circumstances of the case, which means that where the allegation is of cruelty it must consider the nature of cruelty to which the woman was subjected, having regard to the meaning of the word "cruelty" in Section 498-AIPC. The mere fact that a woman committed suicide within seven years of her marriage and that she had been subjected to cruelty by her husband, does not automatically give rise to the presumption that the suicide had been abetted by her husband. The Court is required to look into all the other circumstances of the case. One of the circumstances which has to be considered by the court is whether the alleged cruelty was of such nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman ...….. " 12. The material sentences of Section 498-A, IPC for the purpose of present matter is "any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide". And second material sentence thereof is "harassment of the woman where such harassment is with a view of coercing her or any person related to her to meet any unlawful demand". The foundation of the term "subject such woman to cruelty" is quite important. 13. Section 113-A of the Evidence Act further supports the object of this provision which undoubtedly has been introduced in the Act to combat menace of dowry deaths and to consider that in cases like in hand, where the commission of suicide by a woman was abetted by her husband or relations of her husband, within the period of 7 years from the date of her marriage, by subjecting her to the cruelty, presumption as to abetment of suicide by a married woman as contemplated under this section, cannot be overlooked. 14. The explanation to Section 113-A of the Evidence Act is very clear which means "for the purpose of this section "cruelty" shall have a same meaning as in Section 498-A of the Indian Penal Code". 15. 14. The explanation to Section 113-A of the Evidence Act is very clear which means "for the purpose of this section "cruelty" shall have a same meaning as in Section 498-A of the Indian Penal Code". 15. The power of the Court to summon material witnesses or examine person present as contemplated under section 311 of the Cr.P.C. is also relevant to consider whether in the facts and circumstances of the case the Court should have or would have exercised its power. The Apex Court in Zahira Habibullah Sheikh (5) Vs. State of Gujarat reported in (2006)3 SCC 374 expressed the object underlying Section 311 of the Cr.P.C. as under: "The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witness examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is "at any stage of any inquiry or, trial or other proceedings under this Code". It is, however, to be borne in mind that whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind. As indicated above, the section is wholly discretionary. The second part of it imposes upon the Magistrate an obligation, it is, that the Court shall summon and examine all persons whose evidence appears to be essential to the just decision of the case. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the court. The second part of it imposes upon the Magistrate an obligation, it is, that the Court shall summon and examine all persons whose evidence appears to be essential to the just decision of the case. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the court. Sections 60, 64 and 91 of the Evidence Act, 1872 (in short, "the Evidence Act") are based on this rule. The court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. This must be left to the parties. But in weighing the evidence, the court can taken note of the fact that the best available evidence has not been given, and can draw an adverse inference. The court will often have to depend on intercepted allegation made by the parties, or on inconclusive inference from the facts elicited in the evidence." 16. After hearing both the parties and considering the reasoning given by the Sessions Judge of acquitting the accused, in my opinion, in view of the legal foundation, needs interference on following undisputed facts and reasonings. 17. The deceased committed suicide within four months of her marriage. There is no dispute about the death and the death certificate including the cause of death. The deceased was living with the accused in one room. The incident took place at night. At the material time deceased, her in-laws and husband were present in the house. The husband took her to the hospital. She died before reaching to the hospital. The complainant immediately on the same date i.e. 3-9-1997 visited the hospital and lodged the complaint. The accused failed to lead any evidence in support of their defence. There was no specific defence in their statements under section 313 of the Cr.P.C. except the denial. The prosecution could not lead evidence of any independent witnesses except PW 4 Shyamsingh. Other witnesses were two brothers of the deceased. There is no serious challenge to the testimony of Dr. Kailas (PW 1) and the IO (PW 5). 18. There was no specific defence in their statements under section 313 of the Cr.P.C. except the denial. The prosecution could not lead evidence of any independent witnesses except PW 4 Shyamsingh. Other witnesses were two brothers of the deceased. There is no serious challenge to the testimony of Dr. Kailas (PW 1) and the IO (PW 5). 18. The learned Judge held that the prosecution failed to prove that; the accused in furtherance of their common intention had subjected deceased to cruelty and committed offence punishable under Section 498-A read with section 34 of the IPC and further abetted her to commit suicide and, thereby committed an offence punishable under section 306 read with section 34 of the IPC. 19. Considering the above legal foundations the burden lies upon the defence to rebut the presumption as available under Section 113-A of the Evidence Act. 20. In view of undisputed facts on record if there is a suicide committed by a married woman within a span of a period of four months from the date of marriage there remains no doubt that the prosecution needs to take more care in investigation such offences. There was no reason which could be borne out from the record and/or even pointed out by the A.P.P. in inference to the non-examination of other witnesses especially when there was no delay whatsoever in filling the complaint in question. 21. The witnesses need not be examined in reference to the contents of documents which are admitted by the defence, as referred to above. What is necessary is to consider the requirement of law in view of the above provisions especially when it comes to "cruelty" which includes physical as well as mental. 22. The suicide death, if not in dispute, factually or even medically, the reason behind such drastic step of such newly married woman definitely needs a detailed scrutiny, enquiry and investigation. According to me, all these things are lacking in the investigation in this case. 23. There was no reference made even by the accused in 313, Cr.P.C. statements about the reason of committing suicide by the deceased. After going through the cross-examination with the assistance of the learned Advocate appearing for the petitioner and the learned A.P.P. for the State, there were not even suggestions made to any of witnesses in this regard by the defence. After going through the cross-examination with the assistance of the learned Advocate appearing for the petitioner and the learned A.P.P. for the State, there were not even suggestions made to any of witnesses in this regard by the defence. The importance of statement under section 313 of the Cr.P.C. is also, in my opinion, one of the basic material ingredient which can be looked into when it comes to cases like this and especially when there is no direct evidence and material available in for or against the prosecution or the defence. Assuming for a moment that accused No.1 husband has made statement in reference to her insistence for separate house, but in absence of any such suggestion to other witnesses or in absence of any defence witnesses and in view of the presumption as contemplated under section 113-A of the Evidence Act, I am of the view that the prosecution as well as the defence failed to discharge their burden. 24. The learned Judge, however, in para 18 observed - "One can understand the plight of a young married girl, who had to reside together in the midst of in-laws in a single room. It is but natural that, the wife is likely to get frustrated and ask for a separate room. Therefore, defence version appears to be probable that, the deceased wanted that, accused No.1 should take separate room." In para 21 the learned Sessions Judge further observed: "the accused and deceased were all residing in a common one room, the probability of she committing suicide due to frustration cannot be ruled out and therefore, it is difficult to believe that, there was any nexus between the allegations and suicide committed by deceased Vijaya." In my opinion this reasoning in absence of any material to support is not correct. As observed, the prosecution or the defence failed to discharge their burden to rebut the presumption as referred to above, the acquittal on the foundation of assumption and probability, as narrated above, is difficult to accept. 25. The complainant through more than three supporting, though interested and related witnesses brought on record that there was consistent demand of TV and a gold ring. There was a consistent harassment and illtreatment suffered by the newly married woman. 25. The complainant through more than three supporting, though interested and related witnesses brought on record that there was consistent demand of TV and a gold ring. There was a consistent harassment and illtreatment suffered by the newly married woman. The deceased, in fact, informed about the harassment and ill-treatment to her parents when she got opportunity to explode the feelings to her parents at the time of festival of Nagpanchami. Accused No.1 - husband after 7 days visited the parents' house to bring back the deceased. As recorded and supported by the evidence, the parents requested the accused not to ill-treat her and/or not to harass her and assured him of providing those demanded things after some time. 26. The fact of receipt of Rs.25000 on the date of marriage by the accused also cannot be overlooked. The reasoning given by the Court that the in-laws have sufficient means and income and, therefore, the alleged demand of the TV and the ring could not have been made is also unacceptable conclusion. A rich or wealthy party will not ask for dowry or demand such things is also baseless and has no foundation to support. The purpose and object of the provisions of law, if taken into account, has intention to curb the menace of the demand of dowry and this is definitely not applicable only for or against the poor or the rich. The reasoning based on such probability or presumption, therefore, in the facts and circumstances also, as observed, was wrong. 27. Section 306 of the IPC, if taken note of provides that any person who abets commission of such suicide death shall be punished with an imprisonment of either description. There is no doubt in the preset case about the suicide death. The deceased was living in the same house along with the accused. It was a custodial death. The burden lies heavily on the person who were in the same room or on the prosecution to prove the reason for such death. 28. The persistent demand in the present case that resulted into mental harassment just cannot be overlooked. The deceased was living in the same house along with the accused. It was a custodial death. The burden lies heavily on the person who were in the same room or on the prosecution to prove the reason for such death. 28. The persistent demand in the present case that resulted into mental harassment just cannot be overlooked. A young married woman merely requesting her husband to have a separate house as she at the relevant time could not be in a position to live with her in-laws and husband in the same room that itself cannot be a presumption and/or probability, as observed by the Sessions Judge, to commit suicide. A demand even though made for separate house that itself cannot be a reason to give all benefits of doubt, as given by the Sessions Judge, in favour of the accused by acquitting them of all the charges though they failed to discharge their burden of rebutting the presumption as contemplated under Section 113-A of the Evidence Act. 29. In my view, where a newly wedded wife if unable to bear the harassment from the husband to bring articles from her parents and if consumes poison in view of persistent and consistent harassment and as supported by the testimony of four witnesses, the order of acquittal needs to be quashed and set aside. 30. In reference to the improper investigation the Apex Court in Zahira Habibullah Sheikh (5) (cited supra) has held thus: "Consequences of defective investigation have been elaborated in Dhanaj Singh Vs. State of Punjab, (2004)3 SCC 645. It was observed as follows: "5. In the case of defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. (See Kamel Singh Vs. State of M.P., (1995)5 SCC 518 ). 6. In Paras Yadav Vs. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. (See Kamel Singh Vs. State of M.P., (1995)5 SCC 518 ). 6. In Paras Yadav Vs. State of Bihar, (1999)2 SCC 126 it was held that if the lapse or omission is committed by the investigation agency prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not, the contaminated conduct of officials should not stand in the way of evaluating the evidence by the courts; otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party. 7. As was observed in Ram Bihari Yadav Vs. State of Bihar, (1998)4 SCC 517 if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the laws enforcing agency but also in the administration of justice. The view was again reiterated in Amar Singh Vs. Balwinder Singh, (2003)2 SCC 518 "." 31. Taking all this into account, the impugned judgment and order dated 12-9-2000 passed by the 4th Additional Sessions Judge Aurangabad in Sessions Case No.34 of 1998 is quashed and set aside. The matter is remanded back to the Sessions Judge. 32. The Sessions Judge, in the facts and circumstances of the case, shall take a decision afresh on the basis of the entire evidence on record and in accordance with law, without in any manner, being influenced or inhibited by anything said on the evidence in this judgment. The Sessions Judge is also at liberty to record additional evidence, if necessary, by passing appropriate order as contemplated in Section 311 of the Cr.P.C. and/or other provisions. 33. Rule is made absolute in the above terms. Application allowed.