Judgment : 1. This is an appeal by the accused who is the husband of deceased Kusum. The appellant and his mother were charged for commission of offences punishable under Sections 498-A, 302 and 304-B of Indian Penal Code. 2. Ratnabai, appellant’s mother, has been acquitted. Appellant has been convicted for offences punishable under Sections 498-A and 304-B of Indian Penal Code and sentenced to undergo :- [a] Rigorous Imprisonment for four years and a fine of Rs.1000/-, in default, Rigorous Imprisonment for six months for the former offence; and; [b] Rigorous Imprisonment for seven years and a fine of Rs.1,000/-, in default, to suffer Rigorous Imprisonment for six months, for the latter offence. 3. Heard learned Adv. Mr. R.M. Daga for the appellant and learned Addl. Public Prosecutor Mr. V.A. Thakre for the respondent. 4. The prosecution has examined in all sixteen witnesses. Witnesses relevant to prove ill-treatment prior to the death of Kusum alias Ashwini and who have supported the prosecution are:- [1] PW 4 - Mukundrao Marotrao Deshmukh; [2] PW 7 - Vyankatrao Marotrao Deshmukh; [3] PW 11 - Sau. Malanbai Baliram Waghmode. 5. Other witnesses, namely :- [1] PW - 8 - Prakash Narayan Jadhav, [2] PW 12 - Abhijeet Balwantrao Naik, and, [3] PW 13 - Namdeo Narayan Talkute were examined to support the prosecution story of ill-treatment, however, they have turned hostile. 6. The conviction is challenged on the grounds that:- [a] The ill-treatment immediately prior to the unnatural death is not proved. [b] It is not proved that there were dowry-related demands for which ill-treatment was given. [c] The evidence relied upon by the Sessions Court for convicting present appellant Accused No.1 has been disbelieved as to accused No.2 - Ratnabai and she has been acquitted, when both accused were charged for same act and offence, and this creates a paradox unacceptable for judicial reasoning. 7. In support of his submissions, learned Adv. Mr. R.M. Daga for the appellant has placed reliance on following judgments:- [1] Amar Singh Vs. State of Rajasthan with State of Rajasthan Vs. Jagdish & another [Criminal Appeal Nos. 1411 of 2010 and 854 of 2004, decided on 3rd August, 2004], [2] Durga Prasad & another Vs. State of M.P. [2010 (6) SCALE 18, [3] Rajbabu & another Vs. State of M.P.[2008 ALL MR (Cri) 2894 (SC)], [4] Noorjahan Vs. State of Rajasthan with State of Rajasthan Vs. Jagdish & another [Criminal Appeal Nos. 1411 of 2010 and 854 of 2004, decided on 3rd August, 2004], [2] Durga Prasad & another Vs. State of M.P. [2010 (6) SCALE 18, [3] Rajbabu & another Vs. State of M.P.[2008 ALL MR (Cri) 2894 (SC)], [4] Noorjahan Vs. State represented by DSP [(2008) 3 SCC (Cri) 915], [5] M. Srinivasulu Vs. State of A.P. [(2008) 3 SCC (Cri) 169], [6] Biswajit Halder alias Babu Halder & ors. Vs. State of W.B. [ (2008) 1 SCC 202 ], [7] Kishori Lal Vs. State of M.P. [2007 ALL MR (Cri) 2147 (S.C.)], [8] Dalbir Singh Vs. State of U.P. [ AIR 2004 SC 1990 ], [9] Satish Fakira Dhangar & ors. Vs. State of Mah. [2009 ALL MR (Cri) 2083], [10] Vitthal Sopanrao Kalbande Vs. State of Mah. [2009 ALL MR (Cri) 11], and [11] Shankar Vishwanath Kolhe & another Vs. State of Mah. [2006 ALL MR (Cri) 790]. 8. These judgmentsare relied upon mainly to urge that:- [a] The presumption under Section 113-B of the Evidence Act would be attracted only when “the live link between death and ill-treatment meted out to the deceased is to be established.” [b] The nature and extent of cruelty required to be proved for conviction for offence punishable under Section 498-A, Indian Penal Code, is to be of such nature that it shall satisfy the definition of “Cruelty” as given in Section 498-A, Indian Penal Code, and not as per meaning of the word “cruelty” in the common parlance or its dictionary meaning. [c] What deceased had “told” the witness would constitute a fact that some such fact was told, but it does not constitute proof of said fact even under Section 32 of Evidence Act. 9. Learned APP has urged that the evidence on record, seen from any angle, is adequate and sufficient to prove the conviction, and appeal does not merit interference. 10. Learned APP has supported the judgment of conviction and sentence and relied on following judgments :- [1] Vidhya Devi & another Vs. State of Haryana [ (2004) 9 SCC 476 ], and [2] Smt. Shanti & another Vs. State of Haryana [ (1991) 1 SCC 371 ]. 11. This Court has re-appreciated the evidence of three witnesses who have supported the prosecution, and even perused the evidence of hostile witnesses. 12. State of Haryana [ (2004) 9 SCC 476 ], and [2] Smt. Shanti & another Vs. State of Haryana [ (1991) 1 SCC 371 ]. 11. This Court has re-appreciated the evidence of three witnesses who have supported the prosecution, and even perused the evidence of hostile witnesses. 12. Version of PW 4 “Mukundrao Deshmukh, uncle of deceased Kusum, as well of PW 7” Vyankatrao Deshmukh, father of deceased, is, more or less, same. 6 Their versions as regards the incident are divided into:- [1] the amount of dowry decided and paid; and; [2] The ill-treatment and source of information and knowledge of said ill-treatment. 13. It shall suffice to refer to what these witnesses say about ill-treatment. The ad verbatim text in that regard reads as below:- Version of PW 4 - Mukundrao Deshmukh : “2. After marriage, deceased Ashwini had gone to village Dhansal to reside with the accused persons. Malanbai is my sister. She had also gone to village Dhansal along with Ashwini. Ramesh is the brother of Ashwini. We have sent Ramesh to bring Ashwini after 15 days of the marriage. The accused did not send Ashwini with him. Malanbai had come back along with Ramesh. Malanbai disclosed us that the behaviour of accused is not proper. Malanbai disclosed us that the accused no.1 has illicit connection with one Gokarna. Malanbai further told us that accused no.1 beaten Ashwini. Malanbai further told us that the accused was insisting Ashwini to bring scooter from her father. 3. Ganesh is the elder son of Vyankatrao. After one-and-half months of the marriage, Ganesh had gone to village Dhansal to bring Ashwini. Ganesh had brought Ashwini at the parental house on account of Diwali. In the year 1988 myself and Vyankatrao were residing in one Wada. One Ramesh Jadhav r/o Dhansal sent letter to Vyankatrao and communicated us that accused no.1 disposing agricultural land so advise him. I had seen that letter. Art. 17 before the Court is the same envelope. After return of Ramesh, Vyankatrao had gone to village Dhansal. Vyankatrao had gone to Dhansal as deceased Ashwini drafted letter. I had seen the inland letter which was received by Vyankatrao. In the said inland letter Ashwini communicated us that the accused no.1 giving her ill-treatment and used to beat her frequently and she is disgusted with the life. Hence, Vyankatrao had gone to Dhansal. Vyankatrao had gone to Dhansal as deceased Ashwini drafted letter. I had seen the inland letter which was received by Vyankatrao. In the said inland letter Ashwini communicated us that the accused no.1 giving her ill-treatment and used to beat her frequently and she is disgusted with the life. Hence, Vyankatrao had gone to Dhansal. After 2 to 4 days Vyankatrao returned to Tembhurni. Vyankatrao had told me that accused no.1 demanding ornaments and scooter. 4. Again we have received inland letter about ill-treatment to her. In all we have received 5 to 7 inland letters written by deceased Ashwini. Arts. 16 are the same inland letters. I know handwriting of deceased Kusum. I have seen deceased Ashwini @ Kusum while writing, therefore, I am acquainted with her hand writing. Now 8 inland letters shown to me are the inland letters in the hand writing of deceased Ashwini [Exhs. 76 to 83] are the same. On perusal the contents of these letters, we had come to know that accused nos. 1 and 2 and deceased Narayanrao were giving her ill-treatment. I know handwriting of deceased Narayanrao Satwa. I know his handwriting because I had seen him while writing. The deceased Narayan Satwa sent us two letters and thereby demanded motorcycle from us, or cash of Rs.12,000/-. In the inland Ashwini communicated us that deceased Narayan Satwa used to abuse her and accused no.2 used to encourage accused no.1 to beat her. In the said letter she also communicated us that accused no.1 did not use to come to the house 4 to 5 days, as accused no.1 has illicit relation with Gokarna.” [Quoted from page nos. 128 and 129 of the appeal paperbook. Underlining is done to highlight important and relevant portions]. Version of PW 7-Vyankatrao Deshmukh is as 8 follows:- “3. After 15 days of marriage, my son Ramesh had gone to bring Ashwini at the parental house but the accused persons did not send Ashwini with him, hence only Malanbai returned to village Tembhurni. Malanbai told me that the behaviur of accused no.1 is not proper as the accused no.1 never used to stay at the house at night and insisting Ashwini to bring cash. Malanbai told us that accused no. 1 demanding motorcycle. Malanbai told us that accused no.1 used to beat Ashwini. Malanbai told me that the behaviur of accused no.1 is not proper as the accused no.1 never used to stay at the house at night and insisting Ashwini to bring cash. Malanbai told us that accused no. 1 demanding motorcycle. Malanbai told us that accused no.1 used to beat Ashwini. The deceased Narayanrao Satwa sent me letter and thereby informed us to take Ashwini on account of Ashadh month. We had received that letter in the month of Ashadh. Ashadh month was already commenced, therefore, we did not go to bring Ashwini. Accused persons had sent Ashiwini to the house of Ramrao Asolikar r/o village Asoli. 4. I then deputed my son Ganesh to bring Ashwini. Ganesh had brought Ashwini at Tembhurni. She had halted for 15 days at my house. Prior to her arrival at Tembhurni along with Ganesh, she had sent me one letter and thereby communicated me that accused persons demanding cash from her and giving her ill-treatment. I have occasion to see deceased Ashwini while writing. I am well acquainted with her handwriting. During her stay with us for 15 days, I had talk with deceased Ashwini. She was making complaint that we have not carefully chosen the husband for her. Accused no.1 had come to take Ashwini. He had halted for two days and third day, accused no.1 taken Ashiwini. In the last week of September, I had gone to Dhansal to advice the accused persons to give good treatment to Ashwini. Ramrao and Laxmanrao were present at Dhansal. I advised accused persons in their presence. I halted at Dhansal for two days and returned Tembhurni. 5. We then received inland letters from Ashwini from time to time. Totally we have received 7 inland letters written by deceased Ashwini. Exhs.76 to 83 are the same inland letters written by deceased Ashwini to us. All these inland letters are in the handwriting of deceased Ashwini. One Prakash Jadhav r/o Dhansal had also sent me one postal packet. Exh.102 is the same postal packet sent by Prakash Jadhav. In the said postal packet, he has sent me letter and thereby communicated me that accused persons giving ill-treatment to my daughter. The original letter which I had received from Prakash Jadhav was produced before police during investigation. Art.14 before the Court is the register of tailoring course of my daughter Ashwini. In the said postal packet, he has sent me letter and thereby communicated me that accused persons giving ill-treatment to my daughter. The original letter which I had received from Prakash Jadhav was produced before police during investigation. Art.14 before the Court is the register of tailoring course of my daughter Ashwini. The register is in the handwriting of deceased Ashwini. The deceased Narayanrao Satwa had sent me to post cards and thereby informed me to give new motor cycle to the accused no.1 and if not possible give them Rs. 12,000/- and they will purchase second-hand motorcycle. Both these post-cards were produced before the police during investigation.” [Quoted from page nos. 183, 184 and 185 of the appeal paper-book. Underlining is done to highlight important and relevant portion]. 14. Both these witnesses rely on the fact of ill-treatment based on :- [1] What these witnesses came to know from PW 11-Malanbai, sister of these two witnesses; [2] What Kusum alias Ashwini had told to them; and; [3] What is contained in the letters written by Ashwini. 15. Evidence of PW 11 - Malanbai [Exh.108] is in the nature of what Kusum alias Ashwini told to her. She states in her deposition as follows:- “1. The complainant Vyankatrao is my real brother. The deceased Kusum was the daughter of complainant. Her marriage was performed with the accused no.1. The marriage was performed at Tembhurni. I had attended the marriage. After marriage, I had gone to Dhansal along with deceased Kusum. I had halted at Dhansal for 15 days. During my stay at Dhansal, accused no.1 was demanding motorcycle. The accused no.1 used to speak in insulting language. During my stay of 15 days at Dhansal, accused did not stay at the house at night time. Kusum had told me that the accused no.1 did not come in her room at night. Ramesh had come to Dhansal to take us. I alone came back to Tembhurni along with Ramesh. Deceased Kusum had come to Tembhurni on account of Dhondya month. Vyankatrao had told me that he had received letters written by Kusum and she is making complaint about ill-treatment and harassment to her.” [Quoted from page no. 213 of the appeal paper-book. Underlining is done to highlight important and relevant portions]. 16. Deceased Kusum had come to Tembhurni on account of Dhondya month. Vyankatrao had told me that he had received letters written by Kusum and she is making complaint about ill-treatment and harassment to her.” [Quoted from page no. 213 of the appeal paper-book. Underlining is done to highlight important and relevant portions]. 16. In the aforesaid background, this Court has to see as to whether in order to prove offence under Section 498-A of Indian Penal Code, the prosecution has proved that:- [a] Did the appellant ill-treat the deceased to such an extent and in such a manner that thereby she would be driven to commit suicide? [b] Did the appellant ill-treat the deceased over dowry-related demands prior to incident of unnatural death [suicide in the present case]? 17. It is clear from the version of two witnesses quoted in foregoing paras that the complaint against appellant is about:- [a] his character; and; [b] about failure of the accused to give due treatment and company to the deceased. 18. What PW 4 - Mukundrao Deshmukh and PW 7 - Vyankatrao Deshmukh have stated is that they were told by deceased that accused no.1 had beaten the deceased over the demand of a motorcycle from her parents. Moreover, specific proximate day or date, duration or span of said beating near the event of death has not been told by anyone. 19. None amongst these witnesses have narrated about any specific act of ill-treatment which was witnessed by anyone amongst them. 20. The incident about which PW 11-Malanbai has narrated to them is the primary source of information and knowledge of PW 4-Mukundrao Deshmukh and PW 7 -Vyankatrao Deshmukh. All that PW 11 - Malanbai says is ‘insulting language’ used by accused to the deceased, and that the accused stays outside the house or does not stay during night with or in the room of the deceased. 21. PW 7-Vyankatrao Deshmukh and PW 4 - Mukundrao Deshmukh have stated in their evidence that they identify the handwriting and by virtue thereof, the letters have been marked as Exhs.76 to 83. 22. This Court has perused these letters [Exhs.76 to 83], and letter [Exhs.102] which is written by Prakash Jadhav [PW 8]. This witness [PW 8] admits that those letters are written at the behest of PW 7 -Vyankatrao. 22. This Court has perused these letters [Exhs.76 to 83], and letter [Exhs.102] which is written by Prakash Jadhav [PW 8]. This witness [PW 8] admits that those letters are written at the behest of PW 7 -Vyankatrao. Therefore, the contents of letter [Exh.102] create a doubt about proof of facts represented therein. 23. Evidence of PW 4 - Mukundrao Deshmukh and PW 7 - Vyankatrao Deshmukh, the uncle and the father respectively of the deceased Ashwini, needs to be scrutinized to see if the letters [Exhs.76 to 83] are proved and as to whether the ill-treatment referred to therein too is proved. 24. These witnesses do in specific words identify the handwriting contained therein to be the handwriting of deceased Ashwini. These letters are received with pauses, and the span during which these letters are written is purportedly between July, 1986 to June, 1989, i.e., three years. Each amongst these letters were bound to follow some action, namely letter of reply or response, verification, a visit, message, mediation etc. No evidence in this regard has come forward. Flow of these letters is as follows:- Sr. Dates of Letters. Exh.Nos. Page Nos. No. [a] 3-7-1986 77 139 [b] 5-11-88 79 144 [c] 7-1-89 76 137 [d] 25-1-89 83 154 [e] 13-2-89 81 149 [f] 22-6-89 80 147 [g] Date is 78 142 illegible. [h] Date is 82 152 illegible. 25. Summary of letters [Exhs.76 to 83] is narrated as follows:- [a] Exhibit 77 dated 3-7-86 :-No material is disclosed as to dowry-related demand or ill-treatment. [b] Exhibit 79 dated 5-11-88 :- [1] The relations from in-laws say that they will bring new wife for her husband. They torture without any reason. [2] After arrival to Tembhurni, her husband beat her on Friday. [3] In-laws were asking as to why Luna was not given, though it was to be given at the time of marriage. [4] Other family members are quarreling with her. [c] Exhibit-76 dated 7-1-89 :- [1] Mother-in-law picks up quarrels without reasons. [2] She pursues Ashwini to bring a scooter from her father, and quarrels over that. [3] Father-in-law has abused without reasons and even beats on the ground of demand of gold chain. [4] They also torture husband of the deceased. [5] Husband beats her every now and then on the point of demand of a scooter and gold chain. [2] She pursues Ashwini to bring a scooter from her father, and quarrels over that. [3] Father-in-law has abused without reasons and even beats on the ground of demand of gold chain. [4] They also torture husband of the deceased. [5] Husband beats her every now and then on the point of demand of a scooter and gold chain. [d] Exhibit 83 dated 25-1-89 :- [1] Husband is taking good care of the woman he lives with. [2] He does not have paucity of money and, therefore, land holding of the family should be mutated in her name. [3] Husband did not ill-treat or beat her after Ganesh Anna left the house. [4] Husband is suspicious and she would prefer to end her life herself. [5] She is a person of bad luck. [e] Exhibit 81 dated 13-2-89 :- [1] Mother-in-law has ill-treated her and picked-up quarrels because of letters sent by her father. [2] In-laws are mad, do pick up quarrels and insult her without any reason. [3] Advocate Chhatrapati from Hingoli had come and quarreled with her father-inlaw, and this is how her in-laws are automatically punished by God. [f] Exhibit 80 dated 22-6-89 :- [1] In-laws have sold six acres of land and now family has only fifteen acres of land and now remaining land should be mutated in her name. [2] She was not married in appropriate family and it would have been better had she been married to a beggar. [3] Her husband does not come to house for about 8-10 days, arrives only in the morning, and her life was ruined, but was willing to face it. [g] Exhibit 78 dated -nil- :- [1] Father-in-law asked her to bring Rs. 10,000/- from father. [2] Husband has illicit relations with one Sau. Gokarnabai. [3] Husband comes after five days. [4] He stays with another woman (mostly Sau. Gokarnabai) during night hours. [5] He gives mental and physical harassment to the deceased. [6] That lady [Gokarnabai] also asks her to bring a motorcycle from her father. [h] Exhibit 82 dated-nil - :- [1] Her family had got income of two cart-loaded of cotton and hundred bags of Jowar. Fifty bags of Jowar were sold and 50 bags were in the stock. Wheat has been sown. [2] She has difficult life, as the husband beats or quarrels with her for not doing work in the house. [h] Exhibit 82 dated-nil - :- [1] Her family had got income of two cart-loaded of cotton and hundred bags of Jowar. Fifty bags of Jowar were sold and 50 bags were in the stock. Wheat has been sown. [2] She has difficult life, as the husband beats or quarrels with her for not doing work in the house. [3] Husband stays with another woman for 4-5 days, as she has a lonely life. [4] Husband beat her on the demand of Luna. [4] She feels that there is no guarantee of her life. [5] Her husband is squandering money on that lady. 26. Now on coming to the story contained in those letters, this Court has to discuss about contents and proof of facts therefrom. 27. Main grievance is about the appellant’s illicit relations with other woman. The dates on the letters are also suspicious. Though PW 4 - Mukundrao Deshmukh and PW 7 -Vyankatrao Deshmukh do specifically identify handwriting therein to be of deceased Ashwini, difference in mode of writing in different letters is apparent. 28. Attempt is made to identify these letters in a bunch. Admittedly, the letters were referred to Handwriting Expert, however, his report is not produced. Moreover, the handwriting is not proved by anyone who is acquainted with it. 29. Moreover, actions taken by PW 4 - Mukundrao Deshmukh and PW 7 - Vyankatrao Deshmukh following one or all the letters are not revealed, disclosed or proved before the Trial Court. 30. It is seen that coherence on the point that deceased was being ill-treated over dowry-related demands is totally lacking. 31. Considering that these letters have been sent during span of three years, and contained different versions about ill-treatment, these witnesses were expected to reveal what action, such as visits, intervention by others or dialogue, if any, done by them with the accused persons. However, these witnesses have not narrated any such or other facts or events. 32. Therefore, as sum effect, these letters fall short of constituting a proof of fact of ill-treatment in immediate proximity or connectible proximity to the date of death. 33. However, these witnesses have not narrated any such or other facts or events. 32. Therefore, as sum effect, these letters fall short of constituting a proof of fact of ill-treatment in immediate proximity or connectible proximity to the date of death. 33. What this Court finds in the result on reassessment of entire evidence is that:- [a] Version of PW 4 - Mukundrao Deshmukh and PW 7 - Vyankatrao Deshmukh that Ashwini told them about ill-treatment is evidence of the fact that “Ashwini has told them accordingly.” [b] ‘What’ Ashwini has told these witnesses is not primary evidence or ocular evidence. Said part is hearsay. [c] PW 11 – Malanbai’s testimony does not prove any fact constituting ill-treatment. [d] By formal proof of letters [Exhs.76 to 83], facts therein do not get automatically proved, which are neither proved, nor have been corroborated by independent evidence. [e] Therefore, these letters do not constitute proof of fact of ill-treatment of any type or extent, whatsoever. 34. In the result, discreet scrutiny of evidence does not disclose that the dowry-related demands:- [1] are the cause of ill-treatment, and [2] are in connectible proximity to the incident of unnatural death. 35. In the circumstances, the Judgment and order of conviction is liable to be viewed based on evidence which does not prove the fact of ill-treatment of such a nature and extent as required to be proved for charge under Section 498-A. 36. On re-appreciation of the evidence and its threadbare scrutiny, this Court has to record that the evidence is not adequate enough to prove a fact that the ill-treatment was: [a] on account of the dowry-related demands, [b] of such a nature and extent that Ashwini would be driven to commit suicide or inflict upon herself such injury which would result in her death, and [c] The ill-treatment was given to the deceased over dowry-related demand and was during such time which can establish live link between ill-treatment and unnatural death. 37. The ill-treatment required for proof of offence under Section 304-B, Indian Penal Code, need not be of the same nature and degree as contemplated by Section 498-A. 38. 37. The ill-treatment required for proof of offence under Section 304-B, Indian Penal Code, need not be of the same nature and degree as contemplated by Section 498-A. 38. All that is required for proving the charge under Section 304-B is ill-treatment, which has to be in immediate or in near past to the unnatural death so as to be proximate to the incident, and has to be over a dowry-related demand. This aspect is not proved in the present case by the prosecution. 39. This Court has also seen that the learned Sessions Judge found the same evidence unworthy of reliance as far as involvement of accused no.2 -mother of accused no.1 is concerned. However, this point need not receive a serious attention, since, even if the evidence of PW 4 - Mukundrao Deshmukh, PW 7 - Vyankatrao Deshmukh and PW 11 -Sau. Malanbai was to be accepted, it really did not contain any material against accused no.1. 40. In these premises, appeal is allowed. Judgment and order of conviction and sentence of the appellant is set aside. Appellant be set at liberty, if not required in any other offence.