JUDGMENT 1. This Criminal Appeal has been filed by the first accused who has been convicted in S.C. No. 96 of 2003 on 22.02.2005 by the Additional District and Sessions Court (Fast Track Court No. II), Thoothukudi for offence under Sections 498A and 304-B I.P.C. and sentenced to undergo one year rigorous imprisonment and to pay a fine of Rs.250/-, in default, to undergo one month rigorous imprisonment for the offence under Section 498A I.P.C.; and to undergo 7 years rigorous imprisonment for the offence under Section 304-B I.P.C.; both sentences to run concurrently. 2. It is the case of the prosecution that Padmanabhan(A2) and Narayanan (A3) are the brother and father respectively of Balasubramanian (A1) and they belong to goldsmith community and that they are the residents of Nazareth in Thoothukudi District. Balasubramanian was married on 11.04.1999 to Jayameena (the deceased) who was the daughter of Maharajan (P.W.1) and sister of Ponnusamy (P.W.2) and Latha (P.W.3). The family of the bride hail from the adjoining Tirunelveli District and they also belong to goldsmith community. Their’s was an arranged marriage. It is the case of the prosecution that at the time of the marriage, the parents of the deceased gave her 16 sovereigns of gold and Rs.10,000/- cash. After the wedding, it is alleged that the accused were demanding a sum of Rs.50,000/- from the father of the deceased and they were ill-treating her. A son was born to the couple. On 04.03.2002, Maharajan (P.W.1) received information that something has happened to his daughter and therefore, he went along with his son Ponnusamy (P.W.2) and daughter Latha (P.W.3) to the house of the accused around 03.00 p.m. and found that his daughter had died. He was informed that his daughter had committed suicide by hanging. He lodged a complaint (Ex.P1) with the Sub Inspector of Police, Nazerath Police Station alleging that he found injuries on the body of his daughter and that the accused are responsible for his daughter’s death. Venkatesan (P.W.12), Sub Inspector of Police, Nazerath Police Station, received the complaint and registered a case in Nazerath Police Station Crime No.45 of 2002 for the offences under Sections 498A and 306 I.P.C. at 16.30 hours on 04.03.2002 and prepared the printed F.I.R. (Ex.P16). Venkatesan (P.W.12), Sub Inspector of Police, Nazerath Police Station, received the complaint and registered a case in Nazerath Police Station Crime No.45 of 2002 for the offences under Sections 498A and 306 I.P.C. at 16.30 hours on 04.03.2002 and prepared the printed F.I.R. (Ex.P16). Since Jayameena had died within seven years of her wedding, the police informed the jurisdictional Revenue Divisional Officer (Executive Magistrate) who received a copy of the F.I.R. at around 19.30 hours on 04.03.2002. Mr.Karutharaj (P.W.11), Revenue Divisional Officer, conducted inquest over the body of Jayameena at the residence of the accused on 05.03.2002 at around 8.45 a.m. He recorded the statements of P.W.1, P.W.2, P.W.3, A1, A2 and A3. These signed statements were marked as Ex.P8, P9, P10, P11, P12 and P13 respectively. The Revenue Divisional Officer in his inquest report (Ex.P15) opined that there are possibilities that Jayameena would have died on account of demand of money by the first accused and therefore, recommended to the police for a thorough investigation to find out if the death was a dowry death and for further action thereon. In other words, it is not the Revenue Divisional Officer’s conclusion that the death of Jayameena was a dowry death and it was only his strong suspicion. In any event, his suspicion or opinion or inference would per se have no evidentiary value because the inquest report is not a substantive piece of evidence with regard to the guilt or otherwise of the offender. The police continued with the further investigation by despatching the body of Jayameena for post-mortem. Dr.Nainar (P.W.8) the police surgeon attached to the Government General Hospital, Thoothukudi, conducted autopsy over the body of Jayameena at 04.00 p.m. on 05.03.2002 and gave the post-mortem report (Ex.P3) Dr.Nainar (P.W.8) in his evidence and in the Post-mortem Certificate (Ex.P3) had not observed any external injury on the body of Jayameena. The viscera from the stomach, intestine, liver and kidney were sent to the Government Chemical Examiner for analysis. The Chemical Examination report dated 28.03.2002 (Ex.P4) disclosed that no poison was detected in any of the items. Thereafter, Dr.Nainar (P.W.8) gave the following final opinion. “The deceased would appear to have died of asphyxia due to hanging.” Investigation of the case was conducted by Anthony Samy (P.W.13) who went on 05.03.2002 at 8.30 a.m. to the house of the accused and prepared the observation mahazar (Ex.P17). Thereafter, Dr.Nainar (P.W.8) gave the following final opinion. “The deceased would appear to have died of asphyxia due to hanging.” Investigation of the case was conducted by Anthony Samy (P.W.13) who went on 05.03.2002 at 8.30 a.m. to the house of the accused and prepared the observation mahazar (Ex.P17). He recovered the saree used by the deceased for hanging, under the cover of mahazar. After receiving the inquest report from the Revenue Divisional Officer, he sent an alteration report (Ex.P18) to the jurisdictional Magistrate altering the offence to one under Section 304-B I.P.C. On 07.03.2006 he arrested the three accused and sent them for being produced before the jurisdictional Magistrate, Sathankulam, for remand. He recorded the statement of the post-mortem Doctor and collected the post-mortem and viscera reports. He completed the investigation and filed a final report on 13.09.2002 against the three accused for offences under Sections 498A and 304-B I.P.C. before the Judicial Magistrate, Sathankulam, who took the same on file in P.R.C. No. 29 of 2002 by taking cognizance of the offences disclosed therein. On the appearance of the accused, the provisions of Section 207 Cr.P.C. was complied with. The case was made over to the Additional Sessions Court (Fast Track Court II), Thoothukudi in S.C. No. 96 of 2003. The trial Court framed the following two charges against the three accused: Charge I: For demanding Rs.50,000/- as dowry and inflicting cruelty on the deceased punishable under Section 498A I.P.C. Charge II: For demanding Rs.50,000/- as dowry which resulted in the suicide of Jayameena on 04.03.2002 at 08.00 a.m. in the house of the accused punishable under Section 304-B I.P.C. 3. The accused pleaded not guilty to the charge. The prosecution examined 13 witnesses, marked 18 exhibits and 13 material objects. When the accused were questioned under Section 313 Cr.P.C., they denied the incriminating circumstances against them. After considering the evidence on record and hearing the counsel for the State and the accused, the trial Court acquitted A2 and A3 of all charges but convicted A1 for the offences under Sections 498A and 304-B I.P.C. and sentenced him as aforesaid. Aggrieved by the conviction and sentence, the first accused has preferred this appeal. 4. After considering the evidence on record and hearing the counsel for the State and the accused, the trial Court acquitted A2 and A3 of all charges but convicted A1 for the offences under Sections 498A and 304-B I.P.C. and sentenced him as aforesaid. Aggrieved by the conviction and sentence, the first accused has preferred this appeal. 4. Some of the facts which both sides did not dispute are that; A1 and the deceased got married on 11.04.1999; they have a son who was about two years old at the time of the incident; and on 04.03.2002 Jayameena committed suicide by hanging in the house of the accused. Therefore, I have no hesitation in holding that the prosecution has proved that Jayameena had committed suicide on 04.03.2002 in the residence of the accused. Now the moot question is, is there evidence to convict the appellant for the offences under Sections 498A and 304-B I.P.C.? 5. The entire prosecution rests on the evidence of Maharajan (P.W.1) father of the deceased, Ponnusamy (P.W.2) brother of the deceased, Latha (P.W.3) sister of the deceased and Muthusamy (P.W.4) father-in-law of P.W.2. The neighbours, Anthony (P.W.5), Masana Asari (P.W.6) and Balan (P.W.7) turned hostile to the prosecution case. P.W.1 in his evidence stated that, he was working in the State Transport Corporation and had retired from service. He performed the wedding of his daughter Jayameena with the appellant on 11.04.1999 and at the time of her wedding, he gave her 16 sovereigns of gold and Rs.10,000/- cash apart from household vessels and utensils. His daughter started living in the joint family with the accused in Nazerath in Thoothukudi District. He also stated that the appellant’s mother had died. He further stated that few months after the wedding, the appellants started demanding Rs.50,000/- from the deceased and started quarreling with her. That his daughter will come home frequently crying and complaining about the ill-treatment meted out to her at the hands of the accused. After staying in his house for some time, he will once against drop her back in her matrimonial home. On one occasion, he went to the house of the appellant with his daughter and infant in the night at around 09.00 O’clock and at that time the appellant did not even open the door and made them stand outside and therefore, he brought them home. On one occasion, he went to the house of the appellant with his daughter and infant in the night at around 09.00 O’clock and at that time the appellant did not even open the door and made them stand outside and therefore, he brought them home. Again a month later, the appellant took his wife back from his house. He specifically cited two incidents namely (a) that the appellant told his daughter that had he got married to any other girl, he would have got 50 sovereigns of gold and Rs.50,000/- cash; (b) that on one instance P.W.1 had gone with his son P.W.2 to the house of the appellant and begged him to accept his daughter promising to give him Rs.50,000/- from his retirement benefits. He stated in his evidence that on 04.03.2002 around 10.00 a.m. he received information from his brother-in-law that Jayameena has been admitted in the hospital and therefore, he rushed to the house of the appellant with his son (P.W.2) and daughter (P.W.3) and found that his daughter was dead. He went to the police station and lodged a complaint (Ex.P1). Muthusamy (P.W.4), father-in-law of P.W.2, had also come with him to the police station. 6. Ponnusamy (P.W.2) the son of P.W.1 in his evidence spoke about the marriage between his sister and the appellant and also about the demand of Rs.50,000/- by all the accused. He also gave evidence that he learnt from his sister that the appellant used to beat her on the instigation of accused 2 and 3. He further deposed about the two instances that was narrated by P.W.1 and which is extracted above. 7. Latha (P.W.3) in her evidence spoke about the marriage between her sister and the appellant and also about the fact that she was given 16 sovereigns of gold and Rs.10,000/- cash. Admittedly, Latha being elder sister to the deceased was married and she did not have any personal knowledge as to what transpired between the deceased and the appellant. She gathered knowledge more from her father P.W.1. The defence had rightly objected to several portions of her evidence wherein she has stated that she learnt about certain facts from her father. 8. Muthusamy (P.W.4) who is the father-in-law of P.W.2 deposed about the factum of marriage between the deceased and the appellant in the year 1999. She gathered knowledge more from her father P.W.1. The defence had rightly objected to several portions of her evidence wherein she has stated that she learnt about certain facts from her father. 8. Muthusamy (P.W.4) who is the father-in-law of P.W.2 deposed about the factum of marriage between the deceased and the appellant in the year 1999. He stated that the deceased told him that the appellant is demanding Rs.50,000/- and treating her cruelly. He further consoled the deceased and sent her back to the house of the appellant. 9. On a careful analysis of the evidence of P.W.1, P.W.2, P.W.3 and P.W.4, it appears that after the marriage in the year 1999 there has been misunderstanding between the deceased and the appellant family. Though the witnesses say that they learnt from the deceased that the accused is demanding Rs.50,000/- and subjecting her to cruelty, they did not do anything to bring about a compromise between the two families but instead they were only consoling the deceased and sending her back. Of course, one cannot find fault with them totally but it appears that a child was born in the meantime and after delivery, the deceased was left back with the child in the house of the appellant. Strangely, the elders in the house of the deceased did not take up the matter with the father of the appellant or with the other elders and common friends known to both families though the marriage was an arranged marriage. In the cross-examination of P.W.1 and P.W.2, it has been established by the defence that the two instances that was stated by them in the chief-examination and which has been extracted in para 5 above was not disclosed either in the complaint (Ex.P1) or in the police statement. What was stated at the earliest point of time was that when they came to Nazerath the deceased had told them that the accused is demanding Rs.50,000/- and subjecting her to cruelty. Therefore, the two instances referred to above are clear improvements made by the witnesses and requires to be taken with a pinch of salt. For fastening criminal liability for the offence under Section 304-B I.P.C, it is essential for the prosecution to prove that the demand of dowry was in connection with the marriage. In this case, there is absolutely no evidence on this aspect at all. For fastening criminal liability for the offence under Section 304-B I.P.C, it is essential for the prosecution to prove that the demand of dowry was in connection with the marriage. In this case, there is absolutely no evidence on this aspect at all. The marriage was on 11.04.1999, the child was born to them and Jayameena committed suicide on 04.03.2002. During this period, she had been living only with the appellant. Witnesses P.W.1 to P.W.4 did not even say the year or month in which the demand of Rs.50,000/- was made. One cannot expect the witnesses to speak about the correct date in such cases but for fastening criminal liability, at least, minimum evidence with regard to year or month would be essential in order to determine whether the demand was soon before the death. The expression ‘soon before’ used in Section 304B I.P.C. cannot be put into a straight jacket formula. Nevertheless, in the absence of minimum evidence in this regard, the Court cannot also stretch it behind for an indefinite period especially in the light of admitted facts that in the meantime, the child was born to them and after delivery, she was left back in the house of the appellant and they were living together. In the absence of evidence to throw light on the two vital aspects viz., (a) soon before the death and (b) demand of dowry in connection with marriage, the appellant cannot be convicted for offences under Sections 304-B I.P.C. merely, on the statement of the witnesses that he demanded Rs.50,000/- from the deceased. P.W.1 admitted in his cross-examination that the appellant’s business was very dull and he even asked the appellant to come over to Tirunelveli and work there which suggestion was not accepted by the appellant and his father. This shows that even if there had been a demand of Rs.50,000/- it could not have been in connection with marriage but on account of economic conditions of the appellant. Therefore, I hold that the prosecution has failed to prove the offence under Section 304-B I.P.C. 10. The learned Government Advocate (Crl. side) submitted that the accused had failed to discharge the presumption under Section 113B of the Evidence Act and therefore, the charge under Section 304B I.P.C. stands established. Therefore, I hold that the prosecution has failed to prove the offence under Section 304-B I.P.C. 10. The learned Government Advocate (Crl. side) submitted that the accused had failed to discharge the presumption under Section 113B of the Evidence Act and therefore, the charge under Section 304B I.P.C. stands established. The presumption under Section 113B of the Evidence Act is a presumption in law and that can be invoked only if the prosecution established the essential ingredients of Section 304B of I.P.C. This has been clearly spelt out by the Hon’ble Supreme Court in Bakshi Ram v. State of Rajasthan 2013 (3) SCALE 370 : AIR 2013 SC 1484 : (2013) 4 SCC 131 : LNIND 2013 SC 1157 and Shindo @ Sawinder Kaur v. State of Punjab LNIND 2011 SC 347 : (2011) 4 MLJ (Crl.) 312 (SC). In this case, as discussed above, the prosecution has failed to establish that the demand of Rs.50,000/- was in connection with marriage and that she was subjected to cruelty pursuant to such a demand soon before her death. 11. As regards to what exactly had happened on the fateful day, we do not have any tangible legal evidence. This Court only has the statements made by A1, A2 and A3 to the Revenue Divisional Officer during inquest which is marked as Ex.P11, P12 and P13. This Court cannot rely upon the contents of the statement because they are not substantive piece of evidence. Ex.P11, which is the statement of A1 can be relied upon for the limited purpose of holding that the appellant did not run away from the place of occurrence and remained there and gave an explanation to the Revenue Divisional Officer about his wife’s death. Ex.P11 cannot be used beyond this in this case. In Ex.P11, the appellant had stated that on 04.03.2002 in the morning he had a quarrel with his wife as she had not cooked food in which she bit his nose and he thrashed her. The admission that he thrashed her can be treated as an extra judicial confession to the Revenue Divisional Officer for the offence of cruelty (Read In re: Ramaswami Reddiar AIR 1953 Madras 138 : (1952) 2 MLJ 814 , but I am unable to convict him for this act because, neither was any charge framed for this act nor was he questioned about this under Section 313 Cr.P.C examination. I am also aware that the admission relating to thrashing alone cannot be picked up to fasten criminal liability ignoring the assertion of the appellant that his wife had bitten his nose. Further dilation on this is going to be only academic and preposterous and so I am stopping with this. 12. This Court explored the possibilities of convicting the accused under Section 306 I.P.C. r/w. Section 113 A of the Evidence Act though no charge was framed against the accused. In this regard, the Hon’ble Supreme Court has held that the accused who has acquitted under Section 304-B I.P.C. can be convicted for offence under Section 306 I.P.C. with the aid of Section 113-A of Evidence Act.(See K. Prema S.Rao v. Yadla Srinivasa Rao AIR 2003 SC 11 : (2003) 1 SCC 217 : LNIND 2002 SC 662). For fastening criminal liability under Section 306 I.P.C. r/w. 113A of Evidence Act, the Hon’ble Supreme Court has held that the Court should look into all other circumstances in the case before drawing presumption under Section 113A of the Evidence Act. There is no compulsion on the Court to act on the presumption under Section 113A of the Evidence Act since the presumption is not mandatory but is only permissive. (See Ramesh Kumar v. State of Chattisgarh 2001 AIR SCW 4282 : AIR 2001 SC 3837 : (2001) 9 SCC 618 : LNIND 2001 SC 2368). The evidence on record in this case does not justify the invocation of Section 306 I.P.C. r/w. Section 113A of the Evidence Act for convicting the accused. 13. Though I hold that the demand of Rs.50,000/- was not there in connection with marriage yet, the evidence of the witnesses discloses that very frequently the deceased has been complaining to her father and brother that the accused was ill-treating her and beating her. Even in the evidence of P.W.1, she has stated that on one occasion when he took his daughter and infant to the house of the appellant in the night, he did not even open the door and made them to stand outside and therefore, he had to bring them back home. The learned counsel for the appellant contended that the statement of the deceased to her parents is a hear say and is inadmissible. The learned counsel for the appellant contended that the statement of the deceased to her parents is a hear say and is inadmissible. I am unable to accept this argument for the simple reason that such complaints are relevant under Section 8 of the Indian Evidence Act as well under Section 32 of the Evidence Act. Illustration (j) to Section 8 answers this argument sufficiently. “(j) The question is, whether A was ravished. The facts that, shortly after the alleged rape, she made a complaint relating to the crime, the circumstances under which, and the terms in which, the complaint was made, are relevant. The fact that, without making a complaint, she said that she had been ravished is not relevant as conduct under this section, thought it may be relevant, as a dying declaration under Section 32, clause (1), or as corroborative evidence under Section 157.” 14. In the above illustration, if the expression ‘whether A was ravished’ is substituted with the expression “whether A was subjected to cruelty” and for the expression “alleged rape” the expression “alleged cruelty” is substituted and read, the meaning will be crystal clear. For the sake of convenience I am making the substitution and giving the illustration below: “(j) The question is, whether A was subjected to cruelty. The facts that, shortly after the alleged cruelty, she made a complaint relating to the crime, the circumstances under which, and the terms in which, the complaint was made, are relevant. The fact that, without making a complaint, she said that she had been subjected to cruelty is not relevant as conduct under this section, thought it may be relevant, as a dying declaration under Section 32, clause (1), or as corroborative evidence under Section 157.” 15. The word ‘complaint’ used in this illustration is in the colloquial sense and does not refer to the definition of the term ‘complaint’ in the Code of Criminal Procedure. For example, the question is whether a student ‘B’ had beaten his classmate ‘C’ in the school then; the conduct of ‘C’ as to whether he complained about ‘B’ to his class teacher will be relevant under this provision. A statement which is complaining in nature becomes relevant and not a statement simpliciter. For example, the question is whether a student ‘B’ had beaten his classmate ‘C’ in the school then; the conduct of ‘C’ as to whether he complained about ‘B’ to his class teacher will be relevant under this provision. A statement which is complaining in nature becomes relevant and not a statement simpliciter. To sum up, statements which are complaining in nature made by married woman to her parents or relatives cannot be stated as hearsay but they are relevant under Section 8 of the Evidence Act. Therefore, in this case, the complaint made by Jayameena about cruelty meted out to her by the appellant are relevant and on appreciation of the evidence of P.W.1, P.W.2, P.W.3 and P.W.4 in this regard I find no reasons to disbelieve the testimony and to hold that the appellant has not committed the offence under Section 498A I.P.C. 16. In the result, this appeal is partly allowed. The conviction and sentence imposed upon the appellant for the offence under Section 304B I.P.C. is set aside and the accused is acquitted of this charge. The conviction and sentence imposed upon the appellant for the offence under Section 498A I.P.C. is confirmed. The bail bonds are cancelled. The appellant is directed to serve the remaining sentence, if any. Appeal partly allowed.