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2014 DIGILAW 1322 (HP)

Rakesh Kumar v. State of Himachal Pradesh

2014-09-23

TARLOK SINGH CHAUHAN

body2014
Judgment : Tarlok Singh Chauhan, Judge. This appeal is directed against the judgment dated 12.8.2014, passed by the learned Sessions Judge, Chamba, in Sessions Trial No.32 of 2012 (7 of 2014), whereby the appellants/accused have been convicted and sentenced to undergo rigorous imprisonment for a period of seven years each under Section 304-B/34 of the Indian Penal Code and rigorous imprisonment for one year each and to pay a fine of Rs.1000/-each under Section 498-A/34 of the Indian Penal Code. 2. The prosecution story in brief that on 7.8.2012, at about 8.45 A.M. complainant Ravi Kumar got recorded his statement before ASI Sher Singh, Incharge of Police Post, Sihunta to the effect that he is resident of village Ghebat Bed, Gram Panchayat, Mubarkpur, Tehsil Amb, District Una, H.P. For the last 30 years he along with his family is living in village Nagra, Jallandhar (Punjab). The complainant is having two daughters and the elder daughter Meenu aged 21 years was married with appellant No.1, Rakesh Kumar in the year 2010 as per Hindu rites and customs. He further reported that his daughter was being tortured by the appellants since the time of her marriage, which fact was being told to him and his other relatives by his daughter Meenu, regarding which oral and written compromise had taken place in the local Gram Panchayat, Tundi. He has further reported that his daughter Meenu had asked him many times to meet the demand of money made by her husband and her in-laws. On many occasions, his daughter had also disclosed him that her mother-in-law and father-in-law used to taunt her that she is not good looking. He further reported that such incident had occurred in July, 2012, when her in-laws had admitted there mistake and thereafter a written compromise had been entered into. 3. The complainant further reported that on 6.8.2012 at about 4 P.M., one Sh. Heeru received a telephone call from deceased Meenu, who disclosed him that appellant No.1, Rakesh Kumar had consumed liquor and torturing her and asking her to leave his house. At about 4.15 P.M., complainant Ravi Kumar also received a phone call from deceased Meenu that she was being harassed by her in-laws for not bringing money and that she is being tortured by all the appellants. At about 7.45 P.M., Sh. Puran Chand telephonically informed the complainant that his daughter Meenu has died. At about 4.15 P.M., complainant Ravi Kumar also received a phone call from deceased Meenu that she was being harassed by her in-laws for not bringing money and that she is being tortured by all the appellants. At about 7.45 P.M., Sh. Puran Chand telephonically informed the complainant that his daughter Meenu has died. On this, He along with his relatives visited village Baag and noticed that dead body of his daughter Meenu was lying in the room of her in-laws house and they suspected that it were the appellants he rein, who were responsible for the cause of her death on account of their constant mental and physical cruelty inflicted upon the deceased, which has compelled her to commit suicide by hanging. 4. On the basis of the statement of the complainant, FIR was registered against the appellants. The investigation was conducted by ASI Sher Singh, who visited the spot and got clicked the photographs of the dead body and he also filled in inquest papers, prepared site plan and took into possession pieces of bangles, cloth pieces, cloth, dupatta, which was tied with roof, compromise deed, copy of parivar register etc. etc. After post mortem, dead body was handed over to the parents of the victim. In the opinion of the Medical Officer, death of deceased had occurred due to “mechanical asphyxia followed by respiratory failure to cardiac failure”. Viscera of victim was preserved and sent to RFSL, Dharamshala and on receipt of report thereof, it was reported that no poison was detected in the viscera. 5. On completion of investigation, police prepared the challan and presented the same in the court of learned Judicial Magistrate Ist Class, Dalhousie on 8.10.2012, who after complying with the provisions of Section 207 of the Code of Criminal Procedure, committed the case to the Court of Sessions vide order dated 16.10.2012. The prosecution in order to establish its case examined as many as 14 witnesses and also relied upon documentary evidence. After closure of prosecution evidence, statement of the appellants under Section 313 Cr.P.C. was recorded and their defence was that of simplicitor denial. 6. The prosecution in order to establish its case examined as many as 14 witnesses and also relied upon documentary evidence. After closure of prosecution evidence, statement of the appellants under Section 313 Cr.P.C. was recorded and their defence was that of simplicitor denial. 6. The prosecution and the appellants were also heard under Section 232 Cr.P.C. and appellants were asked to enter on their defence and to adduce evidence in support of their defence, but the appellants did not lead any defence evidence despite opportunity having been duly afforded to them. After trial, the appellants were convicted, as aforesaid. 7. I have heard Mr. Vijay Chaudhary, Advocate, learned counsel for the appellants and Mr. H.K.S. Thakur, learned Additional Advocate General and I have also gone through the oral as well as documentary evidence adduced by the prosecution. 8. Firstly, I will discuss in detail the evidence led by the prosecution. PW.1 Ravi Kumar is the father of deceased Meenu, who has stated that he is permanent resident of village Khevt Behar, Gram Panchayat, Mubarkpur, Tehsil Amb, District Una and is residing at House No.150, village Nagra, P.O. Bawakheer in Jalandhar (Punjab) and is labourer by profession. He is having two daughters, while his son had unfortunately died in the accident in the year 2009. His eldest daughter, Meenu, aged about 21 years was married to the appellant Rakesh Kumar according to Hindu rites in the year 2010 at village Tundi in District Chamba. Whenever his daughter used to visit his house, she used to tell him that all the accused persons used to demand dowry. Thereafter, he came to the village of the accused and reported the matter to Gram Panchayat, Tundi. His daughter also told him that all the accused persons used to say that she was not good looking. The accused persons had been torturing her from the date of her marriage till her death. When he reported the matter to the Panchayat, the Panchayat had called the accused persons in his presence and tired to patch up the matter. All the accused persons had verbally apologized and had also given in writing that in future they will not torture his daughter and demand any dowry from her. When he reported the matter to the Panchayat, the Panchayat had called the accused persons in his presence and tired to patch up the matter. All the accused persons had verbally apologized and had also given in writing that in future they will not torture his daughter and demand any dowry from her. After some months, brother-in-law and sister-in-law of his daughter Meenu gave beatings to her and the accused also threatened her with dire consequences and then the matter was reported at P.P. Sihunta. Thereafter, the police called all the accused and a written compromise was arrived there. On 6.8.2012, at about 4 P.M., his daughter Meenu had telephonically informed Sh. Heeru that accused Rakesh Kumar had consumed alcohol and threatening her with dire consequences. On the same date, at about 4.15 P.M., his daughter telephonically informed him that accused persons are again demanding two lac rupees from her and then he consoled his daughter and at the same time, the phone was disconnected. Thereafter, he rang up his daughter twice, but the phone was picked up by accused Rakesh Kumar and when he asked him to make him talk with Meenu, he disconnected the phone. On the same date, at about 7.30-7.45 P.M., one Puran Chand telephonically informed him that Meenu has died. Then he along with his wife, daughter and other relatives visited the house of accused Rakesh Kumar and saw that his daughter was lying dead in the room. Since all the accused persons were responsible for the death of his daughter, Meenu, he reported the matter to the police, where his statement under Section 154 Cr.P.C. was recorded vide Ext.PW.1/A. The police had visited the spot and associated him in the investigation of the case. He handed over a copy of compromise Ext.PW.1/C, which was written by the Vice President of Gram Panchayat, Tundi on 7.7.2012 along with copy of agreement dated 5.2.2011 Ext.Pw.1/D and copy of parivar register of Dalku Ram Ext.PW.1/E, which were taken into possession by the police vide memo Ext.PW.1/B. Post mortem of the dead body of deceased Meenu was got conducted by the police and after that dead body was handed over to him vide receipt Ext.PW.1/F. 9. In cross examination, he stated that marriage of his daughter was an arranged marriage and Puran Chand was the mediator. In cross examination, he stated that marriage of his daughter was an arranged marriage and Puran Chand was the mediator. The accused Rakesh Kumar and his family members had seen his daughter before the marriage and at that time no demand of dowry was made by the accused. The marriage was solemnized within one month after engagement, as the accused used to say that there is no one in the house to cook food. He admitted that the marriage had been solemnized without dowry articles. He admitted that no beatings were given by the accused to his daughter in his presence, but oral altercations had taken place many times. He did not know the name of Pradhan of his village and further admitted that he had not made any complaint to the Pradhan. He did not know the name of the Pradhan of Gram Panchayat, Tundi. He admitted that marriage of deceased was got conducted by his elder brother Ram Saroop. He further admitted that his daughter was not having any mobile phone, but after 2-3 months of her marriage, the accused had given her mobile phone. He did not know that any telephone call was made to Heeru by Meenu. He did not remember the date, month and year when Meenu disclosed to him about the beatings given to her. He cannot say that when he had reported the matter to the Panchayat and could not say who else had gathered there. He made written complaint to Pradhan and the police, but did not remember, who had written these complaints. He also did not remember on which date the accused apologized. He appended his signatures on the compromise arrived at in the Police Post. He had taken the copy of that compromise and handed over the same to the police after the death of Meenu. He lastly stated that he had not discussed the matter with his relatives with regard to beatings and demand of dowry by the accused. 10. PW.2 Manju is the mother of deceased Meenu, who in examination-in-chief has stated that she is housewife and had got married in the year 1988 with Ravi Kumar. Whenever her daughter used to come, she complained that the accused used to demand dowry and money and accused Rakesh Kumar used to drink liquor and under the influence of liquor he used to quarrel with her. Whenever her daughter used to come, she complained that the accused used to demand dowry and money and accused Rakesh Kumar used to drink liquor and under the influence of liquor he used to quarrel with her. She does not know where her husband had reported the matter regarding demand of dowry or money from her daughter by the accused. After birth of a child, the accused had not sent her to their house and all the accused except accused Rakesh came to their house to take back their daughter on 5.8.2012. On 6.8.2012, accused Rakesh telephonically informed that Meenu was desirous to come to Jalandhar. Her daughter used to say that the appellants used to demand dowry and money from her. On 6.8.2012, one Puran Chand telephonically informed that Meenu has died and she along with her husband, daughter and other relatives went to the house of accused, where they saw that the dead body of Meenu was lying in the room. It were the appellants, who were responsible for the death of her daughter. 11. In cross examination, She claimed to have visited the house of the accused persons, but did not remember the dates. She admitted that in her presence the accused never demanded dowry or money. Her daughter was engaged to appellant No.1 in the year 2010 and no dowry was demanded at the time of engagement. She further admits that even at the time of marriage no dowry was demanded by the appellants. She also admits that she never made any complaint to the Panchayat or police. From the date of delivery, deceased Meenu remained in her house for about eight months. She also admits that deceased was residing separately from her husband. She also stated that after 2-3 months, deceased had disclosed to her that accused Rakesh Kumar is demanding dowry from her, but she did not remember the date. 12. PW-3 Puran Chand is the mediator, who had got the marriage solemnized between accused Rakesh Kumar and deceased Meenu. In his statement, he claimed to have got the marriage solemnized and then stated that deceased Meenu used to say that accused are demanding two lac rupees from her and due to this they used to beat and torture her. 12. PW-3 Puran Chand is the mediator, who had got the marriage solemnized between accused Rakesh Kumar and deceased Meenu. In his statement, he claimed to have got the marriage solemnized and then stated that deceased Meenu used to say that accused are demanding two lac rupees from her and due to this they used to beat and torture her. He discussed this matter with the father of Meenu and the people of Bradary had gathered and all the accused persons confessed their guilt and had given in writing not to repeat this in future. On 6.8.2012, at about 7 P.M. he went to Tundi bazaar, where he saw Bablu taking the dead body in his van. He asked him about the dead body, who disclosed that dead body is that of Meenu wife of accused Rakesh Kumar and then he informed the police at Police Post, Sihunta. The police came at the spot. He was associated by the police during investigation of the case and had gone to the house of accused Rakesh Kumar and saw that the dead body was lying in the room and one Dupatta was hanging with the piece of wood fixed on the roof. According to him, it were the appellants, who were responsible for the death of the deceased. 13. In cross examination, he claims that deceased had disclosed many times that the accused used to demand dowry and money from her. He did not remember the date, time and month, however, it was 5-6 days prior to her death. Prior to this, she never disclosed about demand of dowry and money. He admits that no demand of dowry was made by the accused at the time of engagement of marriage. He claims that accused had confessed their guilt before Prem Singh and Uttam Chand, however, he did not remember the date. Deceased Meenu was taken to hospital after her death. Before the marriage, accused and deceased had seen each other and thereafter the marriage was solemnized. He did not know what dowry was demanded, but they were demanding rupees two lac. He admits that no demand of dowry was made in his presence. Self-stated that accused admitted their guilt regarding demand of dowry in his presence. He also admits that accused Rakesh Kumar was living separately from his father Dalku, mother and brother. He did not know what dowry was demanded, but they were demanding rupees two lac. He admits that no demand of dowry was made in his presence. Self-stated that accused admitted their guilt regarding demand of dowry in his presence. He also admits that accused Rakesh Kumar was living separately from his father Dalku, mother and brother. He admits that he had not lodged any report regarding beatings given by the accused to the deceased. He claims to have informed the parents of the deceased on telephone about her death. However, he did not remember the phone number of the father of the deceased. 14. PW-4 Ram Saroop stated that he was serving in a Dhaba at Una. Ravi Kumar is his younger brother, whose daughter was married to accused Rakesh Kumar in the year 2010 according to Hindu rites and customs from his house. When the deceased had come to his house for third time from her in-laws house, she had told him that accused persons used to demand rupees two lac from her. He consoled her and stated that they are not in a position to pay her rupees two lac. After this, the appellants had started beating her and then the matter was reported to the Gram Panchayat, where the compromise was arrived at, but after one month from the date of such compromise, accused again started maltreating and beating her. Thereafter, they had again gone to the house of accused Ravi Kumar and then the matter was reported at Police Post, Sihunta, where the accused again entered into a compromise. After few days, deceased again came to his house and she stayed there for about 10-12 days. Accused Rakesh also stayed there for about 5-6 days and thereafter he left her there and went away to attend his work. On 4.8.2012, he again came to his house and on the next day on 5.8.2012, he took deceased Meenu with him to his house and on 6.8.2012, at about 6-7 P.M., he came to know that Meenu has died. According to this witness, it were the appellants, who were responsible for her death. 15. In cross examination, this witness clearly stated that deceased Meenu was engaged to accused Rakesh Kumar about two months prior to her marriage. The deceased and accused liked each other and then the marriage was solemnized. According to this witness, it were the appellants, who were responsible for her death. 15. In cross examination, this witness clearly stated that deceased Meenu was engaged to accused Rakesh Kumar about two months prior to her marriage. The deceased and accused liked each other and then the marriage was solemnized. He admits that at the time of engagement, no demand of dowry was made by the accused and even at the time of marriage no dowry was demanded by the accused. He admits that he had not reported the matter to the Pradhan of their Panchayat at Mubarkpur and similarly no complaint was made. He did not remember the date of compromise, which had taken place at Police Post, Sihunta. He admits that he had not reported the matter in the police station of his area regarding demand of dowry by the accused and admits that the accused had not demanded dowry from him. He admits that on 4.8.2012, accused Rakesh Kumar had come to his house to take the deceased to his house and he had come alone. 16. PW-5 is Sunny Kumar, who alone can be termed to be the independent witness. He in his examination-in-chief stated that he is a labourer by profession and knows Rakesh Kumar, whose house is adjacent to his house. On 6.8.2012, he is working as labourer in the house of Gareeb Dass, who was laying the plinth of his house. At about 5-6 P.M., when he was going to his house and reached near the bridge, then the accused Seva Devi called him to her house and when he went there, he saw the deceased lying on the ground and thereafter he took her to the hospital at Samot. The doctor had examined her and declared her dead and then she was brought back to the house. In his cross examination, he states that the accused Rakesh Kumar and Seva Devi had also accompanied the deceased to the hospital. He further admits that the accused and the deceased were living peacefully and he never seen them quarrelling. 17. PW-6 Inspector Hem Raj had prepared the challan, while PW-7 Sh. Dodi Ram has proved on record the application Ext.PW.7/A, for issuance of copy of parivar register of Sh. Rakesh Kumar. 18. He further admits that the accused and the deceased were living peacefully and he never seen them quarrelling. 17. PW-6 Inspector Hem Raj had prepared the challan, while PW-7 Sh. Dodi Ram has proved on record the application Ext.PW.7/A, for issuance of copy of parivar register of Sh. Rakesh Kumar. 18. PW-8 Head Constable Raj Pal was posted at Police Station, Chowari and has proved on record Ruqua Ext.PW.1/A and FIR Ext.PW.8/A. In his cross-examination, he has stated that he is posted at Police Station, Chowri for the last three years and during this period no complaint had been made by the deceased nor by her parents in the police station regarding demand of dowry or beatings. 19. PW-9 Sh. Raman Sharma, Dy. SP has stated that he was posted as SDPO, Dalhousie at the relevant time and he had partly investigated the case and proved on record the taking into possession of copy of parivar register. In his cross examination, he has stated that he recorded the statement of Manju on 5.10.2012 at Tundi. Similarly, he had recorded the statements of Chanchla and Dodi on 20.9.2012. He had not asked witness Manju about the dowry articles given at the time of marriage. Manju had not disclosed that accused had demanded dowry articles at the time of marriage. He further states that neither Manju disclosed that any report had earlier been lodged regarding maltreatment to the deceased by the accused nor he asked. 20. PW-10 ASI Chuni Lal is a formal witness, who had prepared the supplementary challan in this case. 21. PW-11 Dr. Sham Lal Sharma was posted as a Medical Officer in FRU, Chowri at the relevant time and had conducted the post-morte m and had observed as under:- “EXTERNAL APPEARANCE A dead female body lying on post mortem table in supine position. No foul smelling, no insects, no maggot, dust etc. were detected on the body. WEARING OF THE DECEASED Salwar Mergenta colour, shirt printed mergenta with dark grey colour, white cotton undershirt. Glass bangles bilateral six each were found. Two rings apparently gold, one silver chain with pendent OM, two earrings and one nose pin were also found. Mouth opened with tongue partially protruded. Eyes bilateral were closed, bloody froth from mouth and nostrils was seen. Pupils dilated with corneal haziness. Faeces (stool) was seen. Rigor mortis well developed, hypostasis was well developed over dependable parts. Two rings apparently gold, one silver chain with pendent OM, two earrings and one nose pin were also found. Mouth opened with tongue partially protruded. Eyes bilateral were closed, bloody froth from mouth and nostrils was seen. Pupils dilated with corneal haziness. Faeces (stool) was seen. Rigor mortis well developed, hypostasis was well developed over dependable parts. A single ligature mark around the neck was seen more prominent over right side of the neck moving upward obliquely towards left side and less prominent suggestive of knot over left side of neck. ON DISSECITION OF LIGATURE MARKS 2 to 3 cms vide abrasions- dark brownish discolouration and white glistening parchment beneath was seen. Blood vessels and muscles beneath were intact. Hyoid bone and thyroid cartilage were intact. No fracture was detected. No external injuries were detected around the neck structure. I have examined the ligature material (Dupatta of Mergenta colour with print) said to be used for hanging, which was in sealed parcel and three simple knots nearby cut were found. One simple know at the other end was also found. Vertically-wrinked, not torn, no blood, no dust etc. were detected. I sealed the said duppatta in parcel and handed over to the police for forensic examination. CRANIUM AND SPINAL CORD No fracture or dislocation was detected. THORAX Chest walls, ribs and cartilages were normal, pleura was normal, laryanx and trachea, right lung, left lung were normal and congested, pericardium-heart and large vessels were normal engorged and congested. ABDOMEN Abdomen wall, peritoneum, mouth, pharynx and oesophagus were normal. The viscera was taken and preserved and handed over to the police for chemical examination. External and internal genitalia were normal and uterus on dissection was seen in secretary phase. Muscle bones joints were normal. After post mortem, in our opinion, the death of the deceased occurred due to mechanical asphyxia followed by respiratory failure to cardiac failure and ultimately death. Probable time between injuries and death was within five to ten minutes and between death to postmortem was within 24 hours. We issued the post mortem report Ext.PW.11/B, which bears my signature in red circle A and the signature of Dr. Dineshwar Singh in red circle B. After receiving the report from FSL Ext.PW.11/C, in which nothing abnormal was detected in viscera, therefore, our opinion remained the same. We issued the post mortem report Ext.PW.11/B, which bears my signature in red circle A and the signature of Dr. Dineshwar Singh in red circle B. After receiving the report from FSL Ext.PW.11/C, in which nothing abnormal was detected in viscera, therefore, our opinion remained the same. The final opinion is Ext.PW.11/D which bears my signature in red circle A. I have seen Duppatta Ext.P-1, which is the same which was shown to me at the time of post mortem.” 22. In cross examination, he admits that Dupatta Ext.P-1 shown to him in the court, was not in sealed parcel. He further admits that some people had suicidal impulse and that was in case of psychiatric patients during lucid intervals. 23. PW-12 Sonia Sharma is the sister of Manju (PW-2). She in examination-in-chief has stated that she is running a business of cosmetics at Jalandhar and used to reside at Jalandhar with her family. Whenever the deceased used to visit her house, she used to complain that her mother-in-law, Jethani, father-in-law and her husband used to torture her whenever she returns from her parental house. They used to say that she has returned from her parental house with empty hands. Since she is residing at Jalandhar, she could not come to resolve the dispute. However, the father of the deceased used to settle the dispute between the deceased and her in-laws. Deceased had given birth to a child in the year 2011 at Jalandhar and despite intimation her in-laws had not come to see her. They came there after 3-4 months to take her. They apologized and assured not to torture her again and that is why the deceased was sent with the appellants. On 5.8.2012, she came to know that Meenu has died in her in-laws house. Then she visited the house of the accused and found that the deceased was lying dead in the room. The matter was reported to the police and thereafter the police visited the house of the accused and took into possession broken pieces of bangles, Mala, two pieces of salwar, one dupatta vide memos Exts.PW.12/A to PW.12/C. 24. In cross examination, she states that marriage between the deceased and appellant Rakesh Kumar was an arranged marriage. The mediators of the marriage were Taya (uncle) and Tai (aunty) of the deceased. In cross examination, she states that marriage between the deceased and appellant Rakesh Kumar was an arranged marriage. The mediators of the marriage were Taya (uncle) and Tai (aunty) of the deceased. She further admitted that the Mundan ceremony of son of deceased was solemnized in the house of her uncle and aunty, but she had not come there. After marriage, the deceased had visited their house about 5-6 times. She admits that the deceased had not made any complaints during the said visits either to the police or the Panchayat regarding maltreatment given by the appellants to her. She further admits that she had not asked the appellants as to why they used to maltre at the deceased, but claims that the father and the mother of accused Rakesh Kumar apologized, but she did not remember the date and time. She further states that she had not attended the marriage of the deceased. 25. PW-13 Constable Sandeep Kumar is a formal witness, who had taken one parcel containing viscera of deceased Meenu along with docket for depositing the same at RFSL, Dharamshala and had deposited the same there. 26. PW-14 ASI Sher Singh is the Investigating Officer of this case, who states that on 6.8.2012, pursuant to Rapat No.12, recorded in PP, Sihunta, he had visited the house of accused Rakesh Kumar and had associated local Pradhan Chanchal. In the house of accused, he found that accused Rakesh and Dalku were under the influence of liquor and the dead body of Meenu was lying in the room. Accused Rakesh and Dalku were arrested and sent for medical-examination. He had informed the parents of the deceased on telephone, who told not to do anything till they reached at the spot. They reached in the house of accused on 7.8.2012. On 7.8.2012, statement of the father of the deceased was recorded vide Ext.PW.1/A and sent the same to the police station for registration of the case. Thereafter, in the presence of parents of deceased, local people and Pradhan, he inspected the dead body and got clicked the photographs thereof Exts.PW.14/A-1 to PW.14/A-14. On 7.8.2012, statement of the father of the deceased was recorded vide Ext.PW.1/A and sent the same to the police station for registration of the case. Thereafter, in the presence of parents of deceased, local people and Pradhan, he inspected the dead body and got clicked the photographs thereof Exts.PW.14/A-1 to PW.14/A-14. He filled up the various forms, prepared site plan and also took into possession pieces of bangles, pulses of Mala, cloth pieces, clothes, dupatta which was tied with the roof vide memos Exts.PW.12/A to PW.12/C. On the same day, he also took into possession compromise deed Ext.PW.1/C, Ext.PW.1/D and copy of parivar register Ext.PW.1/E vide memo Ext.PW.1/B in the presence of witnesses. Thereafter, he sent the dead body for post mortem. 27. In cross examination, the witness states that he did not remember, whether prior to 6.8.2012, any re port regarding maltreatment of deceased had been made by the parents of deceased with him or not. He has not checked the record, whether any such complaint had been received in the Police Chowki or not. He had not asked the parents of the deceased, whether any complaint against the accused prior to 6.8.2012 has been made. Accused Rakesh and Dalku were got medically examined on the said date, but they were not arrested. Their MLCs were obtained, but the same were not in the Court file. He has not verified where the deceased was brought up and he also not verified that how many days earlier to the marriage of the deceased, she remained engaged with the accused. He has also not verified, whether the accused had demanded dowry at the time of marriage of the deceased or not. However, self-stated that during investigation it has come that the accused used to demand dowry from the deceased and used to maltreat her. This is the entire prosecution evidence led in this case. 28. The most material witness in this case was Sh. Heeru, who is alleged to have received a telephonic call from the deceased on 6.8.2012, at about 4 P.M., wherein she had complained of being harassed by the appellant Rakesh Kumar, who was stated to be under the influence of liquor and had been threatening her with dire consequences. It was only Heeru alone, who could have supported this version of the prosecution, but then why such an important witness was not examined by the prosecution? It was only Heeru alone, who could have supported this version of the prosecution, but then why such an important witness was not examined by the prosecution? Not only this, the statement of this witness has neither been recorded under Section 161 Cr.P.C nor his name finds mention in the list of witnesses submitted with the final report. In such circumstances, this Court is left with no other option, but to draw an adverse inference against the prosecution under Section 114-G of the Evidence Act. 29. Harassment of even a day cannot be tolerated much less when the same is being meted out persistently and continuously to your near and dear ones. In such circumstances, at least a complaint oral or written would be made to the Panchayat. In the present case, it is PW-5 alone, who is an independent witness, who too has stated that the accused and deceased had been living peacefully and he had not seen them quarrelling. In case the situation was so grave and precarious, as deposed by PW-1, PW-2, PW-3, PW-4 and PW-12, then why no person from the village, Panchayat was associated in the investigation or produced in evidence. There is not even a whisper as to what was the nature of the demand made by the appellants save and except a bald statement that a sum of rupees two lac was being demanded, for which also as observed earlier there was no complaint in writing, whatsoever. PW-8 and PW-14 have categorically stated that there had been no complaint, whatsoever regarding maltreatment or demand of dowry. Even the claim of the prosecution that the deceased was tortured on the ground that she was not good looking is not established on record. Rather it is duly proved on re cord that this was a case of love-cum-arranged marriage and therefore, the question of the deceased not being good looking does not arise, as it was a marriage of choice rather than a marriage of compulsion. 30. The Additional Advocate General, would rely upon the so called compromise Ext.PW.1/D to contend that it was the accused himself, who had clearly stated regarding the maltreatment, as also the demand of dowry. I am afraid, I cannot agree to such submission in view of the contents of this document for more than one reason. 30. The Additional Advocate General, would rely upon the so called compromise Ext.PW.1/D to contend that it was the accused himself, who had clearly stated regarding the maltreatment, as also the demand of dowry. I am afraid, I cannot agree to such submission in view of the contents of this document for more than one reason. Firstly, this document has not been proved in accordance with law, as none of the witnesses of this document, though thirteen in number have been examined. It has not even been proved that this document pertains to this very accused Rakesh Kumar or some other Rakesh Kumar and above all, the contents of this document have been totally misconstrued, as the author of this document has only acknowledged certain faults for which he is apologizing. The contents further reveal that he has claimed that he is demanding rupees two lac, but these were not from the family of the deceased. Rather it is categorically written that he had demanded this amount from “his family members”. At this stage, it may be observed that the contents of this document have been totally misinterpreted and misconstrued by the learned Court below in a manner to suggest that appellant No.1 had acknowledged and admitted having demanded rupees two lac from the family of the deceased. 31. Smt. Chanchla, Pradhan, Gram Panchayat, Tundi and Sh. Subhash, Up Pradhan, Gram Panchayat, Tundi have not been associated or examined by the prosecution, which clearly establishes beyond reasonable doubt that no complaint, whatsoever had been made by the deceased or any of her relatives, including her mother and father to the Pradhan, Gram Panchayat, Tundi, though PW-1 has made a half-hearted attempt to claim that he reported the matter to the Pradhan, Gram Panchayat, Tundi and handed over a copy of compromise, which was written by Up Pradhan, Gram Panchayat, Tundi on 7.7.2012. In such circumstances, the Court is left with no option, but to draw an adverse inference against the prosecution for not having examined and associated these two persons as witnesses. 32. The prosecution has not even bothered to place on record the details of telephone calls, whereby it could be gathered and confirmed as to when the deceased had tried to contact and whom so as to connect the prosecution case with the story as set up by them. 33. 32. The prosecution has not even bothered to place on record the details of telephone calls, whereby it could be gathered and confirmed as to when the deceased had tried to contact and whom so as to connect the prosecution case with the story as set up by them. 33. The learned Additional Advocate General would then claim that the very conduct of the appellants, more particularly appellant No.1, clearly establishes his guilt in his answers to questions No.30, 31 and 32 of the statement under Section 313 Cr.P.C. are taken into consideration. Questions No.30, 31 and 32 and their answers are as follows:- “Q.30. Why the witnesses have deposed against you? Ans. They have deposed falsely. Q.31. Why this case has been made out against you? Ans. False case has been made against me. Q.32. Do you want to say anything more? Ans. I am innocent.” 34. I am afraid that I cannot agree even with such submission, more particularly when the object of Section 313 Cr.P.C. is only to empower the Court to examine the accused to give an opportunity of explaining any circumstance, which may tend to incriminate him. Even otherwise, the accused cannot be convicted solely on the basis of confession of his guilt made in examination under Section 313 Cr.P.C. Now in case questions No.30, 31 and 32 are seen, they nowhere incriminate appellant No.1, Rakesh Kumar. The questions are absolutely vague to which an equally vague reply in the given facts and circumstances has been given. 35. The learned Additional Advocate General would then contend that in view of Section 106 of the Evidence Act, the prosecution in this case is not required to establish its case beyond reasonable doubt. I am afraid that Section 106 of the Evidence Act, nowhere provides that a person can be convicted on mere suspicion alone. Section 113-B of the Evidence Act does not provide for invoking the presumption in every situation, but only on proof of treatment with cruelty and harassment with respect to dowry, as held by this Court in Ramesh Kumar versus State of Himachal Pradesh, 2010 (3) Him. L.R. 1211 as under:- “8. What requires to be noticed is that the crux of the allegation against the accused is the demand for dowry made by the accused, which fact has been noticed for the first time in the evidence before the learned Trial Court. L.R. 1211 as under:- “8. What requires to be noticed is that the crux of the allegation against the accused is the demand for dowry made by the accused, which fact has been noticed for the first time in the evidence before the learned Trial Court. Ami Chand (PW-1) admits in his cross-examination that he had not complained to any person regarding the alleged constant demand for dowry made by the accused. His statement Ext.PW-1/A also nowhere details this nor is there any suggestion that the accused were unhappy because sufficient number of utensils (Batlohi) had not been given and the clothes were of inferior quality. There is nothing on the record of the case to suggest demand for dowry and harassment and even if the statement of the prosecution witnesses are taken on their face value, this fact is not established. 10. Learned counsel submits that this Court holds that once the case regarding demand of dowry is not stated before the police in the first instance and later it is built up in the Court for the first time, no reliance can be placed on such evidence. He further fortifies his submissions from the judgment of this Court in Bholi @ Veena and another versus State of H.P. 2009 (3) Shim. LC 503 holding that where the allegation with respect to demand of dowry is contradictory and dilatory wanting corroboration, it does not inspire confidence and cannot be used for convicting the accused. 11. Section 113-B of the Evidence Act does not provide for invoking the presumption in every situation but only on proof of treatment with cruelty and harassment with respect to dowry. It reads: “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, on in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death”. Explanation- For the purpose of this Section “dowry death” shall have the same meaning as in Section 304-B of the Indian Penal Code. 12. Explanation- For the purpose of this Section “dowry death” shall have the same meaning as in Section 304-B of the Indian Penal Code. 12. Section 498-A of the Indian Penal Code provides:- “498-A. 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 terms which may extend to three years and shall also be liable to fine. Explanation- For the purpose of this Section ‘cruelty’ means- (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 women 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 is on account of failure by her or any person related to her to meet such demand”. 13. 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 ). 16. I need not multiply precedent any more. It is only when there is clear and cogent evidence on the record establishing the ingredients of both Sections 498-A of the Indian Penal Code and 113-B of the Evidence Act that a conviction follows. It is not a matter of right of the prosecution to invoke the presumption under law. A conjoint reading of the evidence of three witnesses i.e. PW-1, PW-7 and PW-11, namely, Ami Chand, Swarna Devi and Satya Devi clearly indicates that there is neither any demand for dowry nor incident of harassment which would motivate the accused to induce Swarna to end her life or ca use her to take her own life. For the first time in Court, PW-1 Ami Chand states regarding the demands for dowry and cruelty, regarding which he is silent when his statement Ext.PW-1/A was recorded by the police. For the first time in Court, PW-1 Ami Chand states regarding the demands for dowry and cruelty, regarding which he is silent when his statement Ext.PW-1/A was recorded by the police. I do not find the evidence to be reliable or of such a nature that even if taken untested by cross examination, would lead to the conclusion that the deceased was harassed for dowry which ultimately resulted in her death. There is no evidence either with respect to demand for dowry which comes as an improvement for the first time in Court or cruelty compelling the petitioner to end her life”. 36. The prosecution in such like cases is under an obligation to prove on record beyond reasonable doubt, as to in what manner the deceased was subject to cruelty and a plain and mere statement to the effect that deceased was subjected to cruelty would not sufficient, as held by the learned Division Bench of this Court in State of Himachal Pradesh versus Lekh Raj and others, 2011 (1) Shim. LC 114 as under:- “3. Prosecution has mainly relied upon the statements of PW-2 Subhash Chand, brother of the deceased, PW-3 Joginder Kumar, another brother of the deceased, PW-4 Neelam Kumari, sister-in-law of deceased and PW-6 Keshna Devi, mother of the deceased. According to the testimony of these witnesses, Darshana Devi was maltreated by the respondents. Respondents were examined under Section 313 of the Code of Criminal Procedure. They have stated that they have been implicated falsely and pleaded their innocence. Learned Additional Sessions Judge acquitted the respondents. 7. Darshana Devi was married to Sh. Tilak Raj. She was admitted in Civil Hospital, Nurpur on 24.11.1996. She died on the same day. PW-2 Subhash Chand is the brother of the deceased. His statement was recorded under Section 154 of the Code of Criminal Procedure. According to him, his sister was maltreated by the respondents. They used to remind his sister that she has brought dowry items of inferior quality. They also demanded Rs. 25, 000/- from Darshana Devi. He used to console his sister. However, he has admitted that he never brought these facts to the notice of respondents or Tilak Raj, husband of Darshana Devi (deceased). PW-3 Joginder Kumar is also brother of the deceased. He has also admitted that the matter was not reported to the Local Panchayat. 25, 000/- from Darshana Devi. He used to console his sister. However, he has admitted that he never brought these facts to the notice of respondents or Tilak Raj, husband of Darshana Devi (deceased). PW-3 Joginder Kumar is also brother of the deceased. He has also admitted that the matter was not reported to the Local Panchayat. PW-4 Neelam Kumari is sister-in-law of deceased Darshana Devi. She has also admitted that no complaint was ever lodged with any authority against the respondents. PW-6 Keshna Devi has deposed that her daughter was maltreated by the respondents. Respondents used to demand Rs. 25,000/. She has also deposed that no complaint was ever lodged against the respondents. It has not come in the evidence of these witnesses in what manner Darshana Devi was subjected to cruelty. Their statements are only to the effect that respondents used to complain about the poor quality of the dowry articles and they used to demand Rs.25,000/-from the deceased”. 37. The presumption under Section 113-B of the Evidence Act and 304-B of the Indian Penal Code can be raised only when element of cruelty or harassment has been established on record, as held by the learned Division Bench of this Court in State of Himachal Pradesh versus Smt. Manju Rani and others, 2012(3), Shim. LC 1370 as under:- 10. Looking at the evidence on the record, we cannot find any demand for dowry has been proved. Besides making a general statements in Court for the first time, there is nothing on the record to show that such demand for specific articles were made prior to the point of time when the F.I.R. was lodged. The presumption under Section 113-B of the Evidence Act could only have been invoked, in case it was established and proved that there had been a demand for dowry. In Subhash Chand v. State of H.P. and others, Latest HLJ 2009 (2) (HP) 1076 has held that: "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. 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 1½ 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 1½ 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. 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) 11. The case of demand for dowry is not stated by PW1 Bachani Devi before the police in the first instance and later it is built up in the Court for the first time, no reliance can be placed on such evidence. {See: Bholi @ Veena and another v. State of H.P., 2009 (3) Shim. L.C. 503.) 13. The presumption under Section 113-B cannot be invoked in every situation but only on proof of treatment with cruelty and harassment with respect to demand of dowry. It reads: "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, on in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death." Explanation.-For the purpose of this Section "dowry death" shall have the same meaning as in Section 304-B of the Indian Penal Code." 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 v. State, 1994 Cr.L.J. 1684 (Ori); Keshab v. State, 1995 Cr.L.J. 174 (Ori), Bhakhar Ram v. State, 1995 Cr.L.J. 1345, State of H.P. v. Nikku Ram, (1995) 6 SCC 219 . 15. (See Babaji Charan Barik v. State, 1994 Cr.L.J. 1684 (Ori); Keshab v. State, 1995 Cr.L.J. 174 (Ori), Bhakhar Ram v. State, 1995 Cr.L.J. 1345, State of H.P. v. Nikku Ram, (1995) 6 SCC 219 . 15. In Satish Kumar Batra and others v. State of Haryana, (2009) 12 SCC 49 , 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. In Bhaskar Lai Sharma and another v. Monica, (2009) 10 SCC 604 , the Court emphasizes that the necessary ingredients under Section 498-A should be proved. The Court holds: "38. The scope of the aforementioned provision came up for consideration in some of the decisions of this Court. We may notice a few. In Noorjahan v. State this Court held : (SCC P. 59, paras 16-17) "16. Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical, of the woman is required to be established in order to bring home the application of Section 498-A IPC. Cruelty has been defined in the Explanation for the purpose of Section 49 8-A. Substantive Section 498-A IPC and presumptive Section 113-B of the Evidence Act have been inserted in the respective statutes by the Criminal Law (Second Amendment) Act, 1983. It is to be noted that Sections 304-B and 498-A IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the Sections and that has to be proved. The Explanation to. Section 498-A gives the meaning of 'cruelty'. 17. The object for which Section 498- A IPC was introduced is amply reflected in the Statement of Objects and Reasons while enacting the Criminal Law (Amendment) Act, 1983 (46 of 1983). As clearly stated therein the increase in the number of dowry death is a matter of serious concern. The extent of the evil Has been commented upon the Joint Committee of the Houses to examine the work of the Dowry Prohibition Act, 1961. As clearly stated therein the increase in the number of dowry death is a matter of serious concern. The extent of the evil Has been commented upon the Joint Committee of the Houses to examine the work of the Dowry Prohibition Act, 1961. In some case, cruelty of the husband and the relatives of the husband which culminate in suicide by or murder of the helpless woman concerned, constitute only a small fraction involving such cruelty. Therefore, it was proposed to amend IPC, the Code of Criminal Procedure, 1973 and the Evidence Act suitably to deal effectively not only with cases of dowry deaths but also cases of cruelty to married women by the husband, in laws and relatives. The avowed object is to combat the menace of dowry death and cruelty." It was observed in the fact situation obtaining therein: (SCC pp. 59-60, para 18) "18. So far as the present appellant is concerned, the evidence is inadequate to show that she was party to any demand for dowry. In fact, PW 1 stated that when she went to the place of her daughter the appellant was present along with A 1 and A-2. The said A-l demanded jewels and presentation of Rs. 5000 for Ramzan. She accepted that she told A-l and A-2 that she will send the same within a week. The next statement of this witness is very significant. She (the appellant) told that two months' time will be sufficient for offering the presentation. In other words, she did not made any demand for dowry. That aspect has been accepted by PW 1. Significantly, this witness in her cross-examination had admitted that the appellant is residing at Coimbatore for the last 35 years. She has categorically admitted that while she went to the house of her daughter, she (the appellant) was not present. Therefore, there is no evidence to show that the appellant was either present when the demand was made or she herself made any demand." 39. In Sushil Kumar Sharma v. Union of India this Court held: (SCC pp 285 & 287-88, paras 10 & 19) "10. The object for which Section 498-A IPC was introduced is amply reflected in the Statement of Objects and Reasons while enacting the Criminal Law (Second Amendment) Act 46 of 1983. In Sushil Kumar Sharma v. Union of India this Court held: (SCC pp 285 & 287-88, paras 10 & 19) "10. The object for which Section 498-A IPC was introduced is amply reflected in the Statement of Objects and Reasons while enacting the Criminal Law (Second Amendment) Act 46 of 1983. As clearly stated therein the increase in the number of dowry deaths is a matter of serious concern. The extent of the evil has been commented upon by the Joint Committee of the Houses to examine the work of the Dowry Prohibition Act, 1961. In some cases, cruelty of the husband and the relatives of the husband which culminate in suicide by or murder of helpless woman concerned, constitute only a small fraction involving such cruelty. Therefore, it was proposed to amend IPC, the Code of Criminal Procedure, 1973 (in short 'Cr.P.C') and the Evidence Act suitably to deal effectively not only with cases of dowry deaths but also cases of cruelty to married women by the husband, in laws and relatives. The avowed object is to combat the menace of dowry death and cruelty. 19. The object of the provision is prevention of the dowry menace. But as has been rightly contended by the petitioner many instances have come to light where the complaints are not bona fide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreak personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing framework. As noted above the object is to strike at the roots of dowry menace. But by misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used as a shield and not as an assassin's weapon. Till then the Courts have to take care of the situation within the existing framework. As noted above the object is to strike at the roots of dowry menace. But by misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used as a shield and not as an assassin's weapon. If the cry of 'wolf is made too often as a prank, assistance and protection may not be available when the actual 'wolf appears. There is no question of the investigating agency and Courts casually dealing with the allegations. They cannot follow any straitjacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that the ultimate objective of every legal system is to arrive at the truth, punish the guilty and protect the innocent. There is no scope for any pre-conceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and the Courts start with the presumptions that the accused persons are guilty and that the complainant is speaking the truth. This is too wide and generalized a statement. Certain statutory presumptions are drawn which again are rebuttable. It is to be noted that the role of the investigating agencies and the Courts is that of a watchdog and not of a bloodhound. It should be their effort to see that an innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally undisputable that in many cases no direct evidence is available and the Courts have to act on circumstantial evidence. While dealing with such cases, the law laid down relating to circumstantial evidence has to be kept in view." 38. As already observed that allegations of harassment and cruelty have to be specific and cannot be general. There is no incriminating circumstance against the accused to conclude that the deceased was subject to cruelty, which compelled her to commit suicide. It is only when such cruelty is established beyond reasonable doubt that the presumption under Section 113-A of the Evidence Act can be raised against the accused, calling upon them to explain unnatural death of the deceased. Such evidence, however, is completely missing in the case in hand. 39. It is only when such cruelty is established beyond reasonable doubt that the presumption under Section 113-A of the Evidence Act can be raised against the accused, calling upon them to explain unnatural death of the deceased. Such evidence, however, is completely missing in the case in hand. 39. It is settled law that presumption under Section 113-B of the Evidence Act can only arise when the prosecution spells out and proves on record the ingredients of offence under Section 304-B IPC. Not only that the death of the victim was unnatural one and took place within seven years of marriage, but third ingredient that there was demand of dowry had been made soon before the death, which has not been proved in the present case. This is so held by the Hon’ble Apex Court in Shindo alias Sawinder Kumar versus State of Punjab, (2011) 11 Supreme Court Case s 517. 40. As already observed by me earlier, there is no evidence, whatsoever connecting any of the appellants with the charged offence, but then the learned Additional Advocate General would argue that since there is sufficient evidence against appellant No.1 to substantiate charge under Section 498-A and 304-B of the Indian Penal Code, appellants No.2 to 4 are guilty of abatement and therefore, all the appellants have been rightly convicted by the learned trial court. 41. There is no evidence, whatsoever connecting any of the accused for the offence for which they have been charged. As discussed earlier, there is no credible evidence against any of the appellants, whereby their complexity qua the offence for which they have been charged, can be established. The story regarding harassment of deceased on account of dowry demand is an afterthought and cannot therefore be believed. 42. In Rajeev Kumar versus State of H.P., 2013(3) Him. L.R.1590, this Court was seized of a similar case and it was held:- “11. What is to be considered in this case is: (a) whether the deceased was treated with cruelty and this behavior 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. 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 V s. 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 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 Lal was duly confronted with Ext. PW3/A, the statement under Section 154 Cr.P.C., made by him to PW-12 S.I. Harnam Singh. 11. Even in complaint Ext. DA, which PW-3 Bihari Lal lodged about 1/2 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 1/2 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 1/2 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.” 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 . 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. 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: “498-A.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.” 43. Of late, it has been noticed that the provision of Section 498-A of the Indian Pe nal Code have been grossly misused and this was also noticed by the Hon’ble Supreme Court in Arnesh Kumar versus State of Bihar and another, JT 2014 (7) SC 527 in the following terms:- “6. There is phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested. “Crime in India 2012 Statistics” published by National Crime Records Bureau, Ministry of Home Affairs shows arrest of 1,97,762 persons all over India during the year 2012 for offence under Section 498-A of the IPC, 9.4% more than the year 2011. “Crime in India 2012 Statistics” published by National Crime Records Bureau, Ministry of Home Affairs shows arrest of 1,97,762 persons all over India during the year 2012 for offence under Section 498-A of the IPC, 9.4% more than the year 2011. Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951 which depicts that mothers and sisters of the husbands were liberally included in their arrest net. Its share in 6% out of the total persons arrested under the crimes committed under Indian Penal Code. It accounts for 4.5% of total crimes committed under different sections of penal code, more than any other crimes excepting theft and hurt. The rate of charge sheeting in cases under Section 498A, IPC is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal”. 44. It is after taking judicial notice of the misuse of this provision, the Hon’ble Supreme Court then passed the following directions:- “13. Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorize detention casually and mechanically. 44. It is after taking judicial notice of the misuse of this provision, the Hon’ble Supreme Court then passed the following directions:- “13. Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorize detention casually and mechanically. In order to ensure what we have observed above, we give the following direction: (1) All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.P.C.; (2) All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii); (3) The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention; (4) The Magistrate while authorizing detention of the accused shall peruse the report furnished by the police officer in terms of aforesaid only after recording its satisfactions, the Magistrate will authorize detention; (5) The decision not to arrest an accused be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police to the district for the reasons to be recorded in writing; (6) Notice of appearance in terms of Section 41A of Cr.P.C be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing; (7) Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction; (8) Authorising detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court”. 45. In view of the discussion made herein above, the prosecution has miserably failed to prove its case against the appellants/accused and accordingly the appeal is allowed. 45. In view of the discussion made herein above, the prosecution has miserably failed to prove its case against the appellants/accused and accordingly the appeal is allowed. The judgment dated 12.8.2014, passed by the learned Sessions Judge, Chamba, H.P., in Sessions Trial No.32 of 2012 (7 of 2014), whereby the appellants have been convicted and sentenced under Section 498-A and 304-B read with Section 34 Indian Penal Code, is set aside and all the appellants/accused are acquitted of the charge framed against them. Fine amount, if already deposited by the appellants/accused, be released to them. The Registry is directed to prepare the release warrants of the appellants/accused and send the same to the concerned Superintendent of Jail in conformity with the judgment forthwith, if they are not required in any other case.