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2013 DIGILAW 480 (HP)

Rajeev Kumar v. State of H. P.

2013-05-28

DEV DARSHAN SUD

body2013
JUDGMENT Dev Darshan Sud, J(Oral). This appeal has been preferred by the appellant- Rajeev Kumar husband of deceased Monu, who was convicted by learned trial Court for offences under Sections 498-A and 306 read with Section 34 I.P.C. The sentences imposed under each of the sections are as under: Sr.No. Under Section: 1. 498-A IPC Rigorous imprisonment for two years and pay fine of Rs. 1,000/-. In default of payment of fine, the convict shall further to undergo simple imprisonment for three months. 2. 306 I.P.C.Rigorous imprisonment for four years and to pay fine of Rs.2,000/-. In default of payment of fine, convict shall further undergo simple imprisonment for six months. 2. The facts on record as brought by the prosecution are that the appellant was married to deceased Monu on 26.1.2009. It is stated that deceased Monu lived happily for about six months but later on she was harassed for dowry which ultimately compelled her to commit suicide. 3. On 12.9.2012, a Panchayat was convened in the house of the accused persons where PW1 Sh. Balak Ram father of the deceased and PW2 Smt. Kamlesh Kumari, mother of the deceased also participated but no final decision was reached. It is also in evidence that this Panchayat was called/convened at the request of accused Karam Singh (2nd accused before the learned trial Court). The prosecution story has primarily been unfolded by PW1 Sh. Balak Ram, father of the deceased, PW2 Smt. Kamlesh Kumari, mother of the deceased and PW5 Ms. Indu Devi sister of the deceased. 4. Adverting to the evidence of PW1 Sh. Balak Ram, he states that he has six children (five girls and one son). He is working in the electricity department and states that after about 5/6 months of marriage between the deceased and the accused, she was regularly beaten up by the accused as also the members of his family. On 12.9.2011 he along with his wife PW2 Smt. Kamlesh Kumari went to the house of the accused where the members of the family of the accused persons were present. The deceased was sleeping on a cot. On inquiring as to why she was sleeping, she informed him that she has been brutally beaten up by the accused persons on the previous day and they had threatened to kill her if she disclosed this fact to anybody. The deceased was sleeping on a cot. On inquiring as to why she was sleeping, she informed him that she has been brutally beaten up by the accused persons on the previous day and they had threatened to kill her if she disclosed this fact to anybody. The President, Vice President and the Ward Panch of the Gram Panchayat were also present there. Accused Karam Singh told to the Panchayat that deceased Monu used to misbehave with them; therefore, an application was filed to the Panchayat for intervention in the matter. In the presence of Panchayat members, the accused persons started quarrelling with deceased Monu and threatened her. Thereafter, the Pradhan of the Panchayat said that the matter would be resolved on 13.9.2011 and asked this witness to return to home. At around 10.00 p.m. on 12.9.2011, a telephone call was received by his wife from accused Mona (sic. Monika accused No.6 before the learned trial court) who told them that Monu is not well. He states that his wife Smt. Kamlesh and son Rajeev Kumar immediately rushed to the house of the accused on a motor cycle where they were informed that the deceased has been shifted to Nadaun hospital. They immediately rushed to Nadaun and thereafter to Jawalamukhi hospital where they found that Monu was dead. Complaint Ext.PW1/A was lodged by him with the police. This witness was cross-examined at length. He states that the accused persons are also residing in the same Panchayat. He then states that he never reported any incident of misbehaviour/beatings administered to Monu by the accused to the Gram Panchayat or any other person/authority. He denies the suggestion that he found deceased Monu sleeping on a cot on 12.9.2011 due to the affects of an attempted abortion by her. He also denied the suggestion that the accused had made any demand of dowry but self stated that the accused had demanded a motor cycle from him. He admits that he never informed this fact to the police on 12.9.2011. He also admitted that he never stated to the police that accused had beaten up the deceased. He also admits that he never incorporated in complaint Ext.PW1/A that the accused persons gave merciless thrashing to deceased Monu. They are staying at the distance of one kilometre from the house of the other. He also admitted that he never stated to the police that accused had beaten up the deceased. He also admits that he never incorporated in complaint Ext.PW1/A that the accused persons gave merciless thrashing to deceased Monu. They are staying at the distance of one kilometre from the house of the other. He denied that the deceased was being receiving treatment from Jeevan hospital, Jawalamkhi where her ultra sound was conducted on 5.9.2011. 5.PW2 Smt. Kamlesh Kumari corroborates the statement of her husband PW1 Sh. Balak Ram on the question of marriage etc. but then says that after about 5/6 months of marriage, the accused started beating the deceased Monu under the influence of alcohol. She states that other accused also used to demand of dowry from deceased Monu. She says that prior to her death, she along with Maya, Saroj and Kusum Lata went to the house of the accused persons. Pardhan Smt. Sharda Devi, Up Pardhan Makeria and Ward Panch were also present there. The dispute was not settled in the Panchayat and Pardhan had advised to get the deceased medically treated. The story which then unfolds is that the deceased was taken to one ‘Chela’ (shaman) by the mother-in-law and brother-in-law of the accused and she had also accompanied the deceased. Thereafter the deceased had started improving and became alright. On the date of death, a Panchayat was convened in the house of accused when she was present along with her husband. The accused persons had abused the deceased in the presence of the Panchayat. The matter was adjourned for the next day and they reached at their house at 9 p.m. At around 10.15 p.m., a telephone call was received by her from accused Mona (sic.Monika) that deceased Monu was not feeling well. Firstly, she went to Nadaun hospital and thereafter to Jawalamukhi where she was told by the doctor that Monu had died. In cross-examination, she admits that prior to her death, Monu was pregnant but no abortion was either carried out or attempted. She also denied the suggestion that this abortion was attempted because the fetus was abnormal and thereafter deceased Monu had become weak. In cross-examination, she admits that prior to her death, Monu was pregnant but no abortion was either carried out or attempted. She also denied the suggestion that this abortion was attempted because the fetus was abnormal and thereafter deceased Monu had become weak. She admits that on 12.9.2011, the deceased had told the Panchayat members that she wanted to live separately with her husband at his working place whereupon the accused had responded that this was not possible as there were two other persons residing with him in the same room. She denied the suggestion that the accused had stated that he would take her after adequate arrangements had been made. She denied the suggestion that accused Karam Chand, father of the accused had informed the Panchayat that he is ready to give separate land to accused Rajeev and deceased Monu for the purpose of constructing a house and cultivation of land. 6. Now adverting to the evidence of PW5 Smt. Indu Devi, sister of the deceased, she stated that in the month of June 2011, she had made a telephone call to her sister Monu but it was received by accused Rajeev, who had misbehaved with her on telephone. He went to the extent by saying that he would kill the deceased in which event she could do what she liked and thereafter he switched off his mobile phone. She denies the suggestion of the prosecution so far as the case of abortion of her deceased sister is concerned. 7.PW6 Smt. Kanta Devi, who was the ward member of the Panchayat, says that on 12.9.2011 accused Karam Chand had requested her to convene the Panchayat where she was also present with the Pradhan, Up Pardhan and other ward members of the Panchayat. The proceedings commenced in the house of the accused at around 6.00 p.m. in the evening. The parents of the deceased were also present there. According to her, the deceased was not well and earlier also she used to go away from her matrimonial home at her own sweet will. She (Monu) had told her that she wanted a separate house though she was living separately. No settlement could be arrived at by the Panchayat and the proceedings were adjourned for the next day. According to her, the deceased was not well and earlier also she used to go away from her matrimonial home at her own sweet will. She (Monu) had told her that she wanted a separate house though she was living separately. No settlement could be arrived at by the Panchayat and the proceedings were adjourned for the next day. During the night, she was called to the house of the accused by brother-in-law of the deceased as such she went there and enquired from deceased Monu as to what had happened. She (Monu) informed that she had taken five dozes of medicine which had been given by PW3 Dr. Rajeev Kundu. In cross-examination, she states that “Muljimoo nay Kabhi Bhee Mreetik Monu kay sath durbyabhaar nahi kiya” (The accused never maltreated the deceased Monu). “Whaha Apnay Patee Kee Ichha Kay Virudh Jo Chahati Thee Wo Karti Thee.” (She used to do what she liked without caring for the wishes of her husband). 8. PW14 Sh.Sushil Kumar, Up-Pradhan of Gram Panchayat, Jakhota states that on 12.9.2011 he had called the members of the Panchayat in the house of accused Karam Singh. After stating the other facts about convening the Panchayat and the presence of the parties, he states that the deceased had consented to go with her husband at Nagrota where the accused had a workshop but he (accused Rajeev) informed her that he did not have sufficient accommodation as such he could not take the deceased with him. He also states that accused Karam Chand had told the Panchayat that he wanted to settle the deceased and Rajeev separately as he has settled his other sons and had agreed to give separate land to them for the construction of a house. In his cross-examination he states that “ Monu Ko Doshiyao Dawara Thik Thak Rakha Jata Tha. Son 2009 say Doshi Rajeev Kay Mata Peeta va Bhai Alag Alag say rahatay Thay. Jab Monu Apany Ghar May Ultiya Kar Rahi Thee To Usnay Doshiyo Ko Kuch Kahanay Say Inkar Kar Diya.” (Monu was being treated properly by the accused persons. The parents and the brothers of the accused Rajeev are living separately since 2009. When he saw Monu vomiting in the house she had stated nothing against the accused persons). This is the crux of the evidence so far as the treatment of cruelty against the deceased is concerned. 9. The parents and the brothers of the accused Rajeev are living separately since 2009. When he saw Monu vomiting in the house she had stated nothing against the accused persons). This is the crux of the evidence so far as the treatment of cruelty against the deceased is concerned. 9. Adverting to Ext. PW1/A which is the complaint filed by PW1 Sh. Balak Ram, where he says that she was maltreated for dowry but there was no complaint made to the police with respect to any specific demand of dowry having been made by the accused persons. 10. The other evidence of the prosecution may consider at this stage. PW3 Dr. Rajeev Kundu, Incharge of Jeevan Hospital, Jawalamukhi, states that he has conducted ultra sound of deceased Monu at the time when she was pregnant. Ext.PW3/A is the report of ultra sound. He says that no cardiac activity was seen in the fetus in which circumstances both the deceased as also the accused asked him to abort the fetus but he refused to do so and administered medical treatment. On 12.9.2011, the deceased was brought to his hospital but he had suggested that she should be taken to Government hospital. In cross examination, he says that the deceased was bleeding at the time of ultra sound examination. PW7 Dr. Anand Bhandari posted as Medical Officer in FRU Dehra, proved post mortem report Ext.PW7/A of deceased Monu. He did not find any ligature mark on neck and no wound mark on the body. In the organs of generation, he found PV blood stained present. Uterus size 6/8 weeks of pregnancy, but cavity was empty and no fetus was present. The other evidence need not to be discussed. 11. What is to be considered in this case is: (a) whether the deceased was treated with cruelty and this behaviour was consistent or even a single act which forced her to commit suicide (b) there was any demand for dowry (c) whether the accused was responsible for any act of cruelty. On the question of dowry, I find no credible evidence on the record save and except the statements of PW1 Sh. Balak Ram father of the deceased and PW2 Smt. Kamlesh Kumari. PW1 Sh. On the question of dowry, I find no credible evidence on the record save and except the statements of PW1 Sh. Balak Ram father of the deceased and PW2 Smt. Kamlesh Kumari. PW1 Sh. Balak Ram states for the first time in the witness box that demand for motor cycle was made which fact has not been disclosed to anybody and even in writing in Ext.PW1/A. In these circumstances, it becomes difficult to accept the case of the prosecution that the demand for dowry was, in fact, made. The matter has been considered by this Court on one more occasion. In Subhash Chand Vs. State of H.P. and others, Latest HLJ 2009 (2) (HP) 1076, the Court holds: “10. As already noticed in the earliest version, given to the police, vide statement Ext. PW3/A by PW-3 Bihari Lal, not only that there is not a whisper of the allegation that Rs. 25000/- were demanded by the appellant and his parents and that demand had been made within a few days of the marriage and that soon thereafter another demand for a larger amount of Rs. 50000/- had been made, but also there is no allegation of any harassment or cruelty. What is recorded in Ext. PW3/A is that on her first visit, about 15 days after the marriage, deceased had complained that she felt suffocated and uncomfortable on account of the appellant being in the habit of consuming liquor and eating meat. If a man consumes liquor or eats meat that cannot be said to be a case of harassment of wife, within the meaning of Section 498-A IPC. PW-3 Bihari Law was duly confronted with Ext. PW3/A, the statement under Section 154 Cr. P.C, made by him to PW- 12 SI Harnam Singh. 11. Even in complaint Ext. DA, which PW-3 Bihari Lal lodged about 1 V2 month after the occurrence, there is no mention of amount of Rs. 25,000/- having been paid, on account of dowry demand, by the appellant and his parents or a further demand for Rs. 50,000/-. PW-3 Bihari Lal was duly confronted with complaint Ext. DA. He could not offer any explanation, whatsoever, for the omission of these material facts in the complaint, despite the fact that such a complaint was lodged about 1 V2 months after the occurrence and was drafted by a legal practitioner. 12. 50,000/-. PW-3 Bihari Lal was duly confronted with complaint Ext. DA. He could not offer any explanation, whatsoever, for the omission of these material facts in the complaint, despite the fact that such a complaint was lodged about 1 V2 months after the occurrence and was drafted by a legal practitioner. 12. PW-4 Prem Chand, a brother of the deceased was also confronted with his statement Ext. DD, recorded by the police, under Section 161 Cr. P.C. In that statement also, there is no mention not only of payment of Rs. 25,000/- or demand for another sum of Rs. 50,000/­but also of the allegation that the deceased was harassed for seeking dowry from him or his father. 13. From the above discussion, it is clear that story regarding harassment of the deceased, on account of dowry demand, is an afterthought and, hence, not believable. Now when there is no evidence that there was any demand for dowry nor is there any evidence that the deceased was ever subjected to cruelty or harassment, neither the charge of dowry death, under Section 304-B IPC nor the charge of cruelty, under Section 498-A IPC can be said to have been established..” (p.1079) 12.On the question of consistent cruel behaviour, I note that the submission made by the learned Additional Advocate General is that the deceased was subjected to merciless thrashing which compelled to end her life. Again I find it difficult to accept the case of the prosecution for the reason that the post mortem report does not indicate any injury on any part of the body. If this submission is to be accepted that she has been beaten up, there would have some mark of injury on the body. But even if it is accepted that the beating was of a nature which would not leave any ligature mark, the statements of the mother and father cannot be accepted per se for the reason that the other two witnesses PW6 Smt. Kanta Devi, ward member of the Panchayat and PW14 Sh. Sushil Kumar, Up Pradhan of the Gram Panchayat have stated that there was no quarrel in their presence and that the father of the accused Karam Singh wanted to settle the deceased Monu and the accused separately by giving them a piece of land as he has done in the case of other family members. Sushil Kumar, Up Pradhan of the Gram Panchayat have stated that there was no quarrel in their presence and that the father of the accused Karam Singh wanted to settle the deceased Monu and the accused separately by giving them a piece of land as he has done in the case of other family members. They have also stated that no complaint of maltreatment was ever made to them, rather the deceased was treated properly. 13. Learned Additional Advocate General submits that the presumption under Section 113-A of the Evidence Act is attracted to the facts of the case for the reason that the deceased died before the period of seven years. He places reliance on the judgment of the Supreme Court in Vajresh Venkatray Anvekar Vs. State of Karnataka, (2013) 3 SCC 462 to urge that the Court authoritatively lays out that where there is a death of the wife within the statutory presumptive period, conviction can be the only result. I am unable to accept this submission. What I find from the judgment is that the facts in this case are different and not applicable to the present case. There were extensive marks of injury on the body of the deceased as recorded in the judgment (supra). 14. It is now well established that presumption under Section 113-B of the Evidence Act and 304-B of the Indian Penal Code can be raised only when the element of cruelty or harassment has been established on the record. (See Babaji Charan Barik versus State 1994 Cr.L.J 1684 (Ori); Keshab versus State 1995 Cr..L.J 174(Ori), Bhakhar Ram versus State, 1995 Cr.L.J 1345, State of H.P versus Nikku Ram (1995)6 SCC 219 . 15. In Satish Kumar Batra and others versus State of Haryana, (2009) 12 Supreme Court Cases 491, the Supreme Court held that when there are infirmities in the evidence of the prosecution and improvements have been made in the testimony of the witnesses, acquittal would be the only consequence. 16. The case of the prosecution is based on the presumption under Section 113-A of the Indian Evidence Act, 1872 (Evidence Act for short), the demand of dowry was being made by her in-laws who used to beat her up. 16. The case of the prosecution is based on the presumption under Section 113-A of the Indian Evidence Act, 1872 (Evidence Act for short), the demand of dowry was being made by her in-laws who used to beat her up. Adverting to the first aspect urged by learned Additional Advocate General that the learned Court below was in grave error in not drawing presumption under Section 113-A of the Evidence Act and considering the evidence of the prosecution in its true prospective. 17. In Anand Kumar versus State of Madhya Pradesh (2009) 3 SCC 799 , Supreme Court holds that: “13. Undoubtedly, the aforesaid provisions do raise a presumption but the facts of the case cannot be ignored. The different terminology of Sections 113-A and 113-B itself brings out the real purpose behind the two provisions and whereas Section 113-B places a heavier onus on an accused, the onus placed under Section 113-A is far lighter. We reproduce the two sections hereunder to focus on this distinction: “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 or such relative of 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. 113-B. Presumption as to dowry death.- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand of dowry, the court shall presume that such person had caused the dowry death.” A Comparative reading of the two provisions (particularly the underlined portions) would highlight that under Section 113-A the court “may presume “ having egard to all the other circumstances of the case, an abetment of suicide as visualized by Section 306, IPC but in Section 113-B which is relatable to Section 304-B the word “may” has been substituted by “shall” and there is no reference to the circumstances of the case. 14. Admittedly, the conviction of the appellant has been recorded under Section 306 which is relatable to Section 113-A and though the presumption against an accused has to be raised therein as well, the onus is not as heavy as in the case of a dowry death. In this background, Ms. Makhija’s arguments that the onus shifts exclusively and heavily on an accused in such cases is not entirely correct and in the background of sketchy ocular evidence and the additional fact that the dying declaration recorded by the Naib Tahsildar completely exonerates all the accused of any misconduct, clearly dispels any suspicion with regard to their involvement in this unfortunate incident.” (PP 802-803) 18.I note at this juncture the caution added by the Supreme Court in the trial of cases under Section 498-A, IPC in Preeti Gupta and another versus State of Jharkhand and another (2010) 7 SCC 667 to the effect that : “36. Experience reveals that long and protracted criminal trials lead to rancor, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband’s relations had to remain in jail even for a few days, it would ruin chances of an amicable settlement altogether. The process of suffering is extremely long and painful. 37. Before parting with the case, we would like to observe that a serious relook of the entire provision is warranted by the legislature. The process of suffering is extremely long and painful. 37. Before parting with the case, we would like to observe that a serious relook of the entire provision is warranted by the legislature. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in a very large number of cases. The criminal trials lead to immense sufferings for all concerned. Even ultimate acquittal in the trial may also not be able to wipe out the deep scars of suffering of ignominy. Unfortunately a large number of these complaints have not only flooded the courts but also have led to enormous social unrest affecting peace, harmony and happiness of the society. It is high time that the legislature must take into consideration the pragmatic realities and make suitable changes in the existing law. It is imperative for the legislature to take into consideration the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law.” (P-677) 19.The law with respect to invoking the presumption under Section 113-A of the Evidence Act, the Supreme Court holding in Hans Raj versus State of Haryana (2004) 12 SCC 257 that the nature of presumption is discretionary. There will be no presumption only because the wife committed suicide. The Court is required to look into all the other circumstances and to consider the nature of cruelty to which the woman was subjected to. The bare provisions of the law are that the suicide has to be relational to the circumstances of the case and that such suicide has been abetted by the husband or relatives of the husband. Cruelty has been given the same meaning as described under Section 498-A, IPC : “498A. The bare provisions of the law are that the suicide has to be relational to the circumstances of the case and that such suicide has been abetted by the husband or relatives of the husband. Cruelty has been given the same meaning as described under Section 498-A, IPC : “498A. Husband or relative of husband of a woman subjecting her to cruelty (a) any willful 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 to 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 demand.” 20.Adverting to Section 113-A of the Evidence Act, the law is clearly settled in Hansraj’s case (Supra). In that case the Court holds: “13 Unlike Section 113-B of the Indian Evidence Act, a statutory presumption does not arise by operation of law merely on proof of the circumstances enumerated in Section 113-A of the Indian Evidence Act. 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. Section 113-A gives a 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-A IPC. There 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. There 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 damage to life, limb or health of the woman. The law has been succinctly stated in Ramesh Kumar v. Chhattisgarh (2001)9 SCC 618 wherein this Court observed: “12. This provision was introduced by the Criminal Law (Second) Amendment At, 1983 with effect from 26.12.1983 to meet a social demand to resolve difficulty of proof where helpless married women were eliminated by being forced to commit suicide by the husband or in-laws and incriminating evidence was usually available within the four corners of the matrimonial home and hence was not available to anyone outside the occupants of the house. However, still it cannot be lost sight of that the presumption is intended to operate against the accused in the filed of criminal law. Before the presumption may be raised, the foundation thereof must exist. A bare reading of Section 113-A shows that to attract applicability of Section 113- A, it must be shown that (i) the woman has committed suicide, (ii) such suicide has been committed within a period of seven years from the date of her marriage, (iii) the husband o his relatives, who are charged had subjected her to cruelty. On existence and availability of the above said circumstances, the court may presume that such suicide had been abetted by her husband or by such relatives of her husband. Parliament has chosen to sound a note of caution. Firstly, the presumption is not mandatory; it is only permissive as the employment of expression ‘may presume ’ suggests. Secondly, the existence and availability of the above said three circumstances shall not like a formula, enable the presumption being drawn; before the presumption may be drawn the court shall have to have regard to ‘all the other circumstances of the case ’. Secondly, the existence and availability of the above said three circumstances shall not like a formula, enable the presumption being drawn; before the presumption may be drawn the court shall have to have regard to ‘all the other circumstances of the case ’. A consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the court to abstain from drawing the presumption. The expression - ‘the other circumstances of the case ’ used in Section 113-A suggests the need to reach a cause- and-effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least, the presumption is not an irrebuttable one. In spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. The phrase ‘may presume ’ used in Section 113-A is defined in Section 4 of the Evidence Act, which says - ‘Whenever it is provided by this Act that the court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof o it’ “. 14. The same principle has been reiterated in Sanju v. State of M.P. (2002)5 SCC 371 . 15. In State of W.B. v. Orilal Jaiswal (1994)1 SCC 73 this Court observed: 15. We are not oblivious that in a criminal trial the degree of proof is stricter than what is required in a civil proceedings. In a criminal trial however intriguing may be facts and circumstances of the case, the charges made against the accused must be proved beyond all reasonable doubts and the requirement of proof cannot be lie in the realm of surmises and conjectures. The requirement of proof beyondreasonable doubt does not stand altered even after the introduction of Section 498-A IPC and Section 113-A of the Indian Evidence Act. The requirement of proof beyondreasonable doubt does not stand altered even after the introduction of Section 498-A IPC and Section 113-A of the Indian Evidence Act. Although, the court’s conscience must be satisfied that the accused is not held guilty when there are reasonable doubts about the complicity of the accused in respect of the offences alleged, it should be borne in mind that there is no absolute standard for proof in a criminal trial and the question whether the charges made against the accused have been proved beyond all reasonable doubts must depend upon the facts and circumstances of the case and the quality of the evidences adduced in the case and the materials placed on record. Lord Denning in Bater v. Bater (1950) 2 AII ER 458 has observed that the doubt must be of a reasonable man and the standard adopted must be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject- matter. “ (pp 263-265). 21. In Ramesh Kumar versus State of Chhattisgarh (2001) 9 SCC 618 the Court considers the ambit of instigation thus: “20. Instigation is to goad, urge forward, prvoke, incite or encourage to do “an act”. To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. 21. In State of W.B. v. Orila Jaiswal (1994) 1 SCC 73 this Court has cautioned that the court should be extremely careful is 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 her life by committing suicide. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences 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. 22. Sections 498-A and 306 IPC are independent and constitute different offences. Though, depending on the facts and circumstances of an individual case, subjecting a woman to cruelty may amount to an offence under Section 498-A and may also, if a course of conduct amounting to cruelty is established leaving no other option for the woman except to commit suicide amount to abetment to commit suicide. However, merely because an accused has been held liable to be punished under Section 498-A IPC it does not follow that on the same evidence he must also and necessarily be held guilty of having abetted the commission of suicide by the woman concerned. Evidential value of the two writings contained in diary, Article A is that of dying declarations. On the principle underlying admissibility of dying declaration in evidence that truth sits on the lips of a dying person and the court can convict an accused on the basis of such declaration where it inspires full confidence, there is no reason why the same principle should not be applied when such a dying declaration speaking of the cause of deathexonerates the accused unless there is material available to form an opinion that the deceased while making such statement was trying to conceal the truth either having been persuaded to do so or because of sentiments for her husband. The writing on p. 11 of diary (Article A) clearly suggests that sometime earlier also she had expressed her wish to commit suicide to her husband and the husband had taken a promise from her that she would not do so. On the date of the incident, the husband probably told the deceased that she was free to go wherever she wished and wanted to go and this revived the earlier impulse of the deceased for committing suicide. The dying declaration Ext. On the date of the incident, the husband probably told the deceased that she was free to go wherever she wished and wanted to go and this revived the earlier impulse of the deceased for committing suicide. The dying declaration Ext. )-10 corroborates the inference following from the two writings contained in the diary and as stated hereinabove. The conduct of the accused trying to put off the fire ad taking his wife to the hospital also improbabilises the theory of his having abetted suicide.” (p.629-630) 22.In Harjit Singh v. State of Punjab air 2006 SC 680 construing the expression “soon before death”, the court holds that: “20. Yet again in Hira Lal and others v. State (Govt. of NCT) Delhi { (2003) 8 SCC 80 }, this Court observed that “ Theexpression “soon before her death” used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression “soon before” used in Section 114 Illustration (a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods “ soon after the theft, is either the thief or has received the goods knowing them to be stolen unless he can account for their possession”. The determination of the period which can come within the term “soon before” is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression “soon before” would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequences.” 23. The same opinion was expressed by the same learned Judge in Kaliva Perumal and Another v. State of Tamilnadu { (2004) 9 SCC 157 Para 4) andKamesh Panjivar alias Kamlesh Panjivar v. State of Bihar {(205) 2 SCC 388, Para 10} See also State of A.P. v. Raj Gopal Asawa and Another, {(204) 4 SCC 470, Paras 10 and 11}. The same opinion was expressed by the same learned Judge in Kaliva Perumal and Another v. State of Tamilnadu { (2004) 9 SCC 157 Para 4) andKamesh Panjivar alias Kamlesh Panjivar v. State of Bihar {(205) 2 SCC 388, Para 10} See also State of A.P. v. Raj Gopal Asawa and Another, {(204) 4 SCC 470, Paras 10 and 11}. 24. In the aforementioned situation, the presumption arising either under Section 304-B of the Indian Penal Code of Section 113-B of the Indian Evidence Act could not be invoked against the appellant. The prosecution, therefore, must beheld to have failed to establish any case against the appellant herein. “ (p. 683-684) 25. From the facts as noticed, I do not find that the essential ingredients of the offences have been proved on record of the case. (a) There is no evidence on record to establish that any demand for dowry was made. The father of the deceased PW1 Sh. Balak Ram appears in Court for the first time and states that a motor cycle was being demanded which fact was never disclosed to anyone i.e. the police, the Pradhan of the Gram Panchayat or even mentioned in Ext.PW1/A. The mother of the deceased PW2 Smt. Kamlesh Kumari corroborates the statement of her husband but her evidence cannot be accepted on the same count. (b) PW5 Smt. Indu Devi says that she was told on telephone by accused persons that they would kill her sister (Monu). This evidence does not establish the case of the prosecution any further. The evidence on record is that the deceased was being settled separately with the accused for which purpose the father of accused Karam Singh was ready to give separate land for constructing a house and cultivation of land. (c) When this Panchayat was in progress, there was no complaint made by anybody that the deceased was being subjected to consistent cruel treatment or isolated acts of cruelty and that a demand of motor cycle etc was being made. There is no evidence on record to show that the accused was a drunkard/habituated to drinking liquor and maltreating the deceased. (d) There is no evidence on record that the deceased was subjected to merciless beatings which left any mark on her body or beaten up in a manner which did not leave any ligature/ mark. There is no evidence on record to show that the accused was a drunkard/habituated to drinking liquor and maltreating the deceased. (d) There is no evidence on record that the deceased was subjected to merciless beatings which left any mark on her body or beaten up in a manner which did not leave any ligature/ mark. In the totality of the facts and circumstances on record, I hold that the accused cannot be convicted for the offences as alleged against him. In these circumstances the appeal is allowed. I direct that the accused shall be released from the custody forthwith in case he is not wanted in any other case.