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2015 DIGILAW 101 (CHH)

Deen Dayal v. State Of Chhattisgarh

2015-03-13

MANINDRA MOHAN SHRIVASTAVA

body2015
JUDGMENT : 1. This appeal is directed against the judgment of conviction and order of sentence dated 31st August, 1998 passed by learned Additional Sessions Judge, Bilaspur in S.T. No.498/ 97, whereby and whereunder the appellants have been held guilty of commission of offence under Sections 304-B read with Section 34 of the IPC and sentenced to undergo R.I. for 7 years and fine of Rs.1000/-, in default of payment of fine, additional R.1. for 6 months. 2. Be it noted that during the pendency of this appeal, appellant No.2 Ram Bai died. 3. The prosecution story, as unfolded from the records of the case is that Tara Bai (deceased) was married to appellant- Deen Dayal in the month of April 1995. It is alleged that after some time of marriage, there were certain disputes. Tara Bai was harassed, subjected to cruelty. Case of the prosecution is that the appellants initially demanded Rs. 10,000/- and later on Rs.20,000/- as dowry from the deceased and it was in connection with demand of dowry that Tara Bai was subjected to cruelty. Tara Bai was found dead in her matrimonial house on 25.09.1997 and it was said that she died of poisoning. An intimation regarding death of Tara Bai was given the police station which led to merg enquiry. Inquest over dead body was prepared by the police in the presence of witnesses and the dead body was sent for post mortem, which was conducted by Dr. J. R. Dhirtlahre. (P.W.17) on 26.09.1997 who prepared report in Ex. P-13. It was opined that cause of death was asphyxia due to poisoning. During investigation, it is said that deceased was subjected to cruelty in connection with demand of dowry. The appellants were, therefore, charge-sheeted for alleged commission of offence under Section 304-B read with Section 34 of the IPC. Upon framing of charges, appellants having abjured guilt, they were tried for alleged commission of offence. In order to prove its case, the prosecution examined as many as 28 witnesses. Appellants were also examined under Section 313 of the Cr. P.C. in connection with incriminating evidence and circumstances appearing against them in the evidence led by the prosecution and each of them denied having committed offence alleged against them. No defence witnesses was examined. In order to prove its case, the prosecution examined as many as 28 witnesses. Appellants were also examined under Section 313 of the Cr. P.C. in connection with incriminating evidence and circumstances appearing against them in the evidence led by the prosecution and each of them denied having committed offence alleged against them. No defence witnesses was examined. Relying upon the evidence led by the prosecution, learned trial Court held the appellants guilty of commission of offence alleged against them and sentenced as described above, which has given rise to this appeal. 4. Assailing correctness and validity of the order of sentence, learned counsel for the appellants contended that the prosecution has failed to prove beyond reasonable doubt that the deceased was subjected to cruelty in connection with the demand of dowry. He submits that the evidence of the mother of the deceased, namely Chandrama Bai (P.W.2) not only suffers from material contradictions and omissions, but is also rendered improbable because of her own conduct. The story of demand of Rs. 10,000/- or Rs.20,000/- has not been corroborated from established circumstances of the case or from any other independent witness of either village-Redha, the matrimonial village or Medhapali, the parental village, where both the parties are resided. It is next contended that the evidence of Chandan Singh Lahre (PW 1) father of deceased is based only on information given to him by his wife Chandrama Bai (P.W.2). Panchayat proceedings which were drawn and the witnesses who signed in the panchayat proceedings and those who were present in the panchayat meeting called to resolve the dispute between the deceased and her husband -Deen Dayal, do not support the story of demand of dowry. It is further submitted that the evidence of prosecution witnesses Ishwar Das (P.W.8) and Panku (PW9) also renders probable and plausible that the deceased was having an extra marital affair and that was the operative reason why there used to be quarrel and dispute between the husband and the wife. In the alternative, it is submitted that even if it is held that the appellants are guilty of any cruelty subjected to Tara Bai, the conviction of the appellants may be altered to that under Section 498-A of the IPC. In the alternative, it is submitted that even if it is held that the appellants are guilty of any cruelty subjected to Tara Bai, the conviction of the appellants may be altered to that under Section 498-A of the IPC. It is submitted that appellant No.1 Deen Dayal, the husband, has undergone more than 5 years and 3 months of imprisonment, whereas appellant No.3- Sunau Ram, father-in-law has undergone more than 4 years and 6 months of imprisonment. 5. Per contra, submission of learned counsel for the State is that the even before the date on which Tara Bai was found dead in the matrimonial house, due to consumption of poison, as early as on 7.6.1996, a report was lodged in the police station alleging cruelty in connection with demand of dowry. Both, father and mother of the deceased namely Chandan Singh Lahre (PW 1) and Chandrama Bai (PW2) have clearly stated that there was demand of dowry and Tara Bai was subjected to cruelty in connection with demand of dowry and that is why she used to come back to her parental house time and again and in the hope that things will finally improve, she was being sent again and again to her matrimonial house. He further submits that the prosecution has proved that a panchayat meeting was organized in which an agreement was executed between the husband-De en Dayal and his wife, deceased Tara Bai, to resolve all their disputes and the signatory to this agreement and villagers present in the meeting have deposed that this resolution of dispute was in connection with cruelty being meted out to deceased Tara Bai by her husband-Deen Dayal. There is evidence on record to prove that there was continuous demand of dowry and cruelty in connection thereof and soon before death, there was not only demand but cruelty to which the deceased was subjected, which resulted in her death. Therefore, all the ingredients of commission of offence under Section 304-B having been proved beyond reasonable doubt, each of the appellant has rightly been convicted and sentenced to undergo minimum sentence of 7 years. 6. I have considered rival submissions made by learned counsel for the parties and perused the records. 7. In the case of Manohar Lal Vs. Therefore, all the ingredients of commission of offence under Section 304-B having been proved beyond reasonable doubt, each of the appellant has rightly been convicted and sentenced to undergo minimum sentence of 7 years. 6. I have considered rival submissions made by learned counsel for the parties and perused the records. 7. In the case of Manohar Lal Vs. State of Haryana, (2014) 9 SCC 645 , the Supreme Court examined the scope and ambit of provisions contained under Section 304B of IPC and the necessary ingredients which are required to be proved before the conviction can be ordered. It was held as under :- "18. For the purpose of the said section, a presumption can be raised only on proof of the following essentials: (a) Death of a woman was caused by bums or bodily injury or occurs otherwise than under a normal circumstance; (b) Such death took place within seven years of her marriage; (c) The women was subjected to cruelty or harassment by her husband or his relatives; (d) Such cruelty or harassment was for, or in connection with, any demand for dowry; and (e) Such cruelty or harassment was soon before her death. In this connection, we may refer the decision of this Court in Kaliyaperumal Vs. State of T.N." 8. In the case of Sunil Bajaj Vs. State of M.P., 2001 (9) SCC 417 , the Supreme Court held: (SCC pp, 420-421 para 5 & 6) "5. We have given our attention and consideration to the submissions made by the learned counsel for the parties. Normally this Court will be slow and reluctant, as it ought to be, to upset the order of conviction of the trial court as confirmed by the High Court appreciating the evidence placed on record. But in cases where both the courts concurrently recorded a finding that the accused was guilty of an offence in the absence of evidence satisfying the necessary ingredients of an offence, in other words, when no offence was made out, it becomes necessary to disturb such an order of conviction and sentence to meet the demand of justice. But in cases where both the courts concurrently recorded a finding that the accused was guilty of an offence in the absence of evidence satisfying the necessary ingredients of an offence, in other words, when no offence was made out, it becomes necessary to disturb such an order of conviction and sentence to meet the demand of justice. In order to convict an accused for an offence under Section 304-B IPC, the following essentials must be satisfied : (1) the death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances; (2) such death must have occurred within 7 years of her marriage; (3) soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband; (4) such cruelty or harassment must be for or in connection with demand of dowry. 6. It is only when the aforementioned ingredients are established by acceptable evidence such death shall be called "dowry death" and such husband or his relative shall be deemed to have caused her death. It may be noticed that punishment for the offence of dowry death under Section 304-B is, imprisonment of not less than 7 years, which may extend to imprisonment for life. Unlike under Section 498-A IPC, husband or relative of husband of a woman subjecting her to cruelty shall be liable for imprisonment for a term which may extend to three years and shall also be liable to fine. Normally, in a criminal case the accused can be punished for an offence on establishment of commission of that offence on the basis of evidence, may be direct or circumstantial or both. But in case of an offence under Section 304-B IPC, an exception is made by deeming provision as to nature of death as "dowry death" and that the husband or his relative, as the case may be, is deemed to have caused such death, even in the absence of evidence to prove these aspects but on proving the existence of the ingredients of the said offence by convincing evidence. Hence, there is need for greater care and caution, that too having regard to the gravity of the punishment prescribed for the said offence, in scrutinizing the evidence and in arriving at the conclusion as to whether all the abovementioned ingredients of the offence are proved by the prosecution. In the case on hand, the learned counsel for the appellant could not dispute that the first two ingredients mentioned above are satisfied." 9. The expression "soon before her death" used in Section 304-B of IPC and Section 113-B of the Evidence Act was also considered by the Supreme Court in the case of Hira Lal Vs. State (Govt. of NCT of Delhi), 2003(8) SCC 80 , which reads as under (SCC pp 85, 86 para 8). "8. Section 304-B IPC which deals with dowry death, reads as follows: "304-B. Dowry death.-(I) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called 'dowry death', and such husband or relative shall be deemed to have caused her death. Explanation.-For the purpose of this sub-section, 'dowry' shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life." The provision has application when death of a woman is caused by any bums or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relatives of her husband for, or in connection with any demand for dowry. In order to attract application of Section 304B IPC, the essential ingredients are as follows : (i) The death of a woman should be caused by bums or bodily injury or otherwise than under a normal circumstance. (ii) Such a death should have occurred within seven years of her marriage. In order to attract application of Section 304B IPC, the essential ingredients are as follows : (i) The death of a woman should be caused by bums or bodily injury or otherwise than under a normal circumstance. (ii) Such a death should have occurred within seven years of her marriage. (iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband. (iv) Such cruelty or harassment should be for or in connection with demand of dowry. (v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death. Section 113-B of the Evidence Act is also relevant for the case at hand. Both Section 304-B IPC and Section 113-B of the Evidence Act were inserted as noted earlier by Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113-B reads as follows : "113-B. Presumption as to dowry death.-When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation.-For the purposes of this section, 'dowry death' shall have the same meaning as in Section 304-B of the Indian Penal Code (45 of 1860)." The necessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its 21st Report dated 10-8-1988 on "Dowry Deaths and Law Reform". Keeping in view the impediment in the preexisting law in securing evidence to prove dowry-related deaths, the legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background that presumptive Section 113-B in the Evidence Act has been inserted. As per the definition of "dowry death" in Section 304-B IPC and the wording in the presumptive Section 113-B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the woman concerned must have been "soon before her death" subjected to cruelty or harassment "for or in connection with the demand of dowry". Presumption under Section 113-B is a presumption of law. Presumption under Section 113-B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials: (1) The question before the court must be whether the accused has committed the dowry death of the woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B IPC.) (2) The woman was subjected to cruelty or harassment by her husband or his relatives. (3) Such cruelty or harassment was for or in connection with any demand for dowry. (4) Such cruelty or harassment was soon before her death." 10. Applying the aforesaid principles, the evidence on record is to be examined in order to find out whether a case of commission of offence under Section 304-B IPC is made out or not. 11. Chandan Singh Lahare (P.W.1) has clearly stated regarding solemnization of marriage of deceased Tara Bai and appellant - Deen Dayal in the month of April, 1995. Chandrama Bai (P.W.2) mother of the deceased has also stated that her daughter was married two years before. This uncontroverted evidence led by the prosecution proves that marriage was solemnized in the month of April, 1995. Tara Bai died on 25.9.1997, which is not in dispute. An intimation regarding death of Tara Bai was given in the police station by appellant-Deen Dayal on 25.9.1997 at 16:45 hrs. in Ex. P-15. Mohani Das (P.W.23), Head Constable, has proved that on the intimation given by Deen Dayal regarding death of his wife by consuming poison, he had recorded merg. On this point, there is no dispute. It is thus proved that deceased died within 7 years of her marriage. 12. FIR in EX.P-18 has been proved by A.R. Bairagi (P.W.28), the Investigating Officer who has stated that after having made inquiry, he registered offence under Section 304-B read with Section 34 of the IPC against the appellants. In the FIR, it has been recorded that the deceased was subjected to cruelty in connection with demand of Rs.20,000/- and aggrieved by cruelty, Tara Bai committed suicide by consumption of poison.. 13. In the FIR, it has been recorded that the deceased was subjected to cruelty in connection with demand of Rs.20,000/- and aggrieved by cruelty, Tara Bai committed suicide by consumption of poison.. 13. Chandrama Bai (P.W.2) mother of the deceased has stated in her evidence that marriage of her daughter was performed two years before and her daughter was treated properly for about one month and thereafter she was given something to eat, due to which her daughter developed mental illness. She was brought back to parental house within 15 days and at that time, she did not say anything. She was treated for 3 months and then Deen Dayal had come to take her back. Thereafter, she lived in the matrimonial house for only 2 months. She was subjected to cruelty by father-in-law, mother-in-law and husband raising demand of Rs. 10,000/- as dowry and her daughter was being subjected to cruelty and she used to come back to parental house. She has stated that Rs. 10,000/- was being demanded and this fact was stated to her on more than one occasions. Thereafter, she was kept in the parental house for about 4 months and village panchayat was called and thereafter a report was lodged in the police station regarding cruelty in connection with demand of dowry by her daughter and the appellants were subjected to trial. She has also stated that thereafter in village- Medhapali, panchayat was organized. She has further stated that 3 days before the death, her daughter had come alone to parental house and she was carrying pregnancy of 3-4 months. She was beaten up and shunted out from matrimonial house by husband, father-in-law and mother-in-law. At that time, she lived there for 3 days. She stated that in connection with demand of Rs.20,000/-, she is being subjected to beating by husband, father-in-law and mother-in-law and thrown out from matrimonial house. Thereafter, she was persuaded to go back to her matrimonial house along with one Daroga (P.W.22) and Amar Singh (P.W.24). Next date, she came to know that her daughter committed suicide by consuming poison. In para-7 of her evidence, it is stated that she apprehended that her daughter was subjected to cruelty in connection with demand of dowry. 14. Thereafter, she was persuaded to go back to her matrimonial house along with one Daroga (P.W.22) and Amar Singh (P.W.24). Next date, she came to know that her daughter committed suicide by consuming poison. In para-7 of her evidence, it is stated that she apprehended that her daughter was subjected to cruelty in connection with demand of dowry. 14. In her cross-examination, Chandrama Bai (P.W.2) has stated that no dowry or money was demanded from them but according to their tradition, rituals and practice and their own capacity, sufficient dowry items were given. While she denies that money, jewelry clothes and other items were given, she of her own, has stated that only Rs.5/- was given at the time of kanyadan. She has further admitted that she was brought back to parental house as she was mentally sick and two months thereafter, her daughter stated regarding demand of dowry of Rs. 10,000/-. However, this witness says that she did not disclose these facts of dowry demand to her husband or to any other member of the family or to any other, but says that a report was lodged in the police station regarding cruelty in connection with demand of dowry of Rs. 10,000/-. She has also stated that when her daughter stated regarding demand of dowry, she did not talk to her son-in-law Deen Dayal. She admits that 6 months after marriage, a panchayat meeting was held, thereafter, she sent her daughter back and her daughter had remained there in her matrimonial house for about 4-5 months and, thereafter, her daughter had stated regarding demand of dowry. 15. Chandan Singh Lahre (P.W.1) father of the deceased has stated in his evidence that the fact of dowry demand was informed to him only through his wife. Reading of his entire evidence shows that all the allegations of demand of dowry are based on the basis of what was informed to him by his wife Chandrama Bai (P.W.2). However, Chandrama Bai (P.W.2) mother of the deceased has remained firm on this statement that the fact regarding demand of dowry was not disclosed by her to her husband Chandan Singh (P.W.1). This is quite unusual that demand of dowry made by in-laws would not be disclosed by the mother even to her husband. However, Chandrama Bai (P.W.2) mother of the deceased has remained firm on this statement that the fact regarding demand of dowry was not disclosed by her to her husband Chandan Singh (P.W.1). This is quite unusual that demand of dowry made by in-laws would not be disclosed by the mother even to her husband. She does not say that this fact was stated by her to anyone, but there is evidence to show that FIR alleging commission of offence of cruelty in connection with demand of dowry was lodged in the police station on 7.6.1996 by way of written report of Tara Bai and in connection with which a Criminal Case No. 1360/96 was registered by Additional Chief Judicial Magistrate, Sakti against the appellant Deen Dayal and deceased appellant Ram Bai. 16. Though Chandrama Bai (P.W.2) states that during panchayat proceedings, the fact of dowry demand was stated, none of the prosecution witness who are either signatory to settlement between the deceased and appellant Deen Dayal or present in the meeting, have stated that during settlement proceedings, any statement was made regarding cruelty in connection with demand of dowry. There is overwhelming evidence on record to prove that a panchayat meeting was held on 5.3.1997 and agreement in EX.P-1 was executed, signed by the appellant Deen Dayal, Tara and number of witnesses. This agreement has been proved by the father of Tara, Chandan Singh Lahare (PW.1) and appellant- Deen Dayal has also admitted his signature. In that agreement, it has been recorded that Deen Dayal and Tara Bai had separated because of their disputes in which both have compromised and marital relation has been resumed. Chandan Singh Lahare (P.W.1) admitted that in the agreement, there is no mention regarding demand of dowry. Though Chandrama Bai (P.W.2), in para-13 of her evidence states that in panchayat proceedings demand of Rs.20000/- was disclosed but she herself admits that no panchayat was held in connection with demand of dowry. 17. Karam Chand (PW.3) who was present at the time of panchayat meeting and signed EX.P-I agreement, has stated that regarding Deen Dayal stating that he will not subject his wife to harassment or torture, there is no such recital in the agreement. In para-8 of his evidence, he admitted that there is no recital with regard to demand of dowry and stated that even during panchayat meeting, no demand of dowry was raised. In para-8 of his evidence, he admitted that there is no recital with regard to demand of dowry and stated that even during panchayat meeting, no demand of dowry was raised. 18. Mohanlal Patel (P.W.4) who had written agreement and signed it, also has stated that there was some dispute between husband and wife and therefore, panchayat meeting was organized to resolve dispute. In para-10 of his cross-examination, he has stated that there was no discussion with regard to demand of dowry. Banshidhar (P.W.5) has stated that Deen Dayal had executed agreement that he will not torture Tara Bai in future. But he denies that Tara was shunted out from matrimonial house in connection with demand of dowry. In his cross-examination, he has admitted that there was no allegation with regard to demand of dowry having cropped up during panchayat meeting. Mukund Ram (P.W.6) has also stated that he did not hear about any demand of dowry. Ishwar (P.W.8) and Panku (P.W.9) have not supported the story of prosecution with regard to demand of dowry but they have stated regarding dispute between Tara & Deen Dayal and have stated that the operative reason for dispute and beating of Tara Bai was illicit relation of Tara with one Gorelal. Phoolkumari (P.W.18) resident of prenatal village of the deceased, has stated that there was dispute between Deen Dayal and Tara Bai Daroga @ Shiv Narayan (P.W.22) has stated that there was dispute, a case was going on and Tara Bai had come to her parental house and then she was taken back to her matrimonial house by him. In para-5 of his evidence, he admitted that he had taken the deceased to her matrimonial house where a compromise was arrived at, but he claims ignorance regarding any harassment in connection with .demand of dowry. This witness has not supported even the story of cruelty. He is resident of parental village of the deceased-Tara Bai. Amarsingh (P.W.24) has also stated that he along with Daroga had taken Tara Bai to her matrimonial house and has not supported the prosecution story with regard to demand of dowry. 19. This witness has not supported even the story of cruelty. He is resident of parental village of the deceased-Tara Bai. Amarsingh (P.W.24) has also stated that he along with Daroga had taken Tara Bai to her matrimonial house and has not supported the prosecution story with regard to demand of dowry. 19. There are other witnesses who were either signatory to the agreement or who were present at the time of panchayat meeting, but none of those witnesses including the witnesses whose evidence have been referred to above, have supported the prosecution story with regard to demand of dowry. Even the father of the deceased claims to have known this fact from his wife Chandrama Bai (P.W.2). 20. The story of demand of dowry as stated by Chandrama Bai (P.W.2) is doubtful because of her unusual conduct. Though she has stated that her daughter stated regarding demand of dowry, this fact was never disclosed by her to anybody including her own husband. Though there is material on record to show that on 7.6.1996, FIR was lodged in the police station by the complainant in writing submitted by Tara Bai, the deceased, that she was subjected to beating in connection with demand of Rs. 10,000/-, that criminal case has ended in acquittal vide judgment dated 27.2.2002 passed by the Additional Chief Judicial Magistrate Sakti in Criminal Case No. 1630/96, whereby the Court has acquitted Deen Dayal of charges of commission of offence under Section 498-A in connection with cruelty due to demand of dowry on or before 7.6.1996. Therefore, lodging of that report does not lay credence to the story of demand of dowry nor it lays credence to the evidence of Chandrama Bai (P.W.2) with regard to demand of dowry. In the panchayat proceedings and the agreement executed between husband and the wife in Ex.P-1, there is no specific reference or anything from which inference could be drawn that there was demand of dowry. In the panchayat proceedings and the agreement executed between husband and the wife in Ex.P-1, there is no specific reference or anything from which inference could be drawn that there was demand of dowry. All the witnesses of the agreement and other village people who have been examined, have not supported the story of demand of dowry and on the contrary, the story of demand of dowry becomes further doubtful because Chandan Singh (P.W.1) father of the deceased has stated that there was no demand of dowry at the time of marriage and mother Chandrama Bai (P.W.2) herself has stated that only with Rs.5/-, kanyadan was performed and she does not say that any demand was raised at that point of time. It is, therefore, improbable that having not raised any kind of demand at the time of marriage, subsequently, demand would be raised. At least, it would be unsafe to rely upon story of demand in such a situation without there being corroboration of story of demand from the established circumstances of the case and when conduct of mother Chandrama Bai (P.W.2) in not informing this fact even to her husband has come on record. Both Chandan Singh Lahare (P.W.1) and Chandrama Bai (P.W.2) have stated that they never talked either to husband or in-laws of the deceased regarding dowry demand informed by deceased. This is also quite unusual and renders story of demand of dowry even more doubtful. 21. Further the evidence of Chandan Singh Lahare (PW.1) and Chandrama Bai (P.W.2) and other prosecution witnesses clearly goes to prove that there existed a dispute. Deceased had been returning to her parental house quite frequently fur months and a panchayat meeting was organized to resolve dispute and there are allegations of subjecting the deceased to cruelty and beating by her husband. Tara Bai died within less than 3 years of her marriage. Marriage was solemnized in the month of April, 1995 and she died on 25.9.1997. The evidence of Dr. J. R. Dhritlahre (P.W.17) proves postmortem report and the cause of death being asphyxia due to consumption of poison. 22. Therefore, the prosecution has proved that deceased was subjected to cruelty and she was time and. Marriage was solemnized in the month of April, 1995 and she died on 25.9.1997. The evidence of Dr. J. R. Dhritlahre (P.W.17) proves postmortem report and the cause of death being asphyxia due to consumption of poison. 22. Therefore, the prosecution has proved that deceased was subjected to cruelty and she was time and. again assaulted by the appellants, sent back to her parental house on a day before her death and the very next date when she was brought back to matrimonial house, she died by consuming poison. Thus, the prosecution story that the cruelty was in connection with demand of dowry is highly doubtful and not worthy of credence. Thus, one of the essential ingredients of commission of offence of dowry death being cruelty in connection with demand of dowry having not been proved beyond doubt, conviction of the appellants under Section 304-B cannot be sustained and therefore set aside. 23. However on the basis of evidence on record, as perused hereinabove, I the appellants are certainly guilty of offence of abetment of suicide and cruelty both. Section 113-A of the Evidence Act states as below : "113-A Presumption as to abetment of suicide by a married woman-When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband" 24. The language of Section 113-A of the Evidence Act makes it clear that if a woman has committed suicide within a period of 7 years from the date of her marriage and that her husband had subjected her to cruelty, the Court may presume having regard to all other circumstances of the case, that such suicide had been abetted by her husband. The Explanation to Section 113A of the Evidence Act states that for the purposes of Section 113-A "cruelty" shall have the same meaning as in Section 498-A IPC. The Explanation to Section 113A of the Evidence Act states that for the purposes of Section 113-A "cruelty" shall have the same meaning as in Section 498-A IPC. The Explanation to Section 498-A IPC defines 'cruelty' and clause (a) of the Explanation states that "cruelty" means any willful conduct which is of such a nature as likely to drive a woman to commit suicide. From the circumstances of the present case, postmortem report, opinion of the doctor and the other evidence on record, it is proved that the deceased was definitely subjected to cruelty during the period after 7.6.1996 till her death and this cruelty by beating, drove her to commit suicide. Therefore, in these circumstances, it has to be held that appellant No.1 Deen Dayal, the husband. is guilty of commission of offence under Section 306 and Section 498-A of the IPC, whereas father-in-law/appellant No.3 is guilty of commission of offence lmder Section 498-A.. 25. In the case of K. Prema S. Rao and another etc. Vs. Yadla Srinivasa Rao and Ors., (2003) 1 SCC 217 , the Supreme Court, having found that the deceased was subjected to cruelty and harassment, has held that it was not necessary to remit the matter to the trial Court for framing of charge under Section 306 of the IPC and the accused also could not complain of want of opportunity to defend the charge under Section 306 of the IPC, if the facts found in the evidence justify the conviction of the appellant under Sections 498-A and 306 IPC instead of the graver offence under Section 304-B of the IPC. 26. In the result, this appeal is partly allowed. Conviction of all the appellants under Section 304-B of the IPC is set aside. Appellant No.1 -Deen Dayal is convicted of commission of offence under Section 306 and 498-A of the IPC and sentenced for the period already undergone by him, considering that he has already undergone more than 5 years and 3 months of imprisonment. Appellant NO.3 is held guilty of commission of offence under Section 498-A of the IPC and awarded sentence of R.T. for 3 years. It is placed on record that this appellant has also undergone more than 4 years and 4 months of imprisonment. As both appellants No.1 & 3 are on bail, they need not surrender. Their bail bonds stand discharged.