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2017 DIGILAW 197 (ALL)

PRABHAWATI DEVI v. STATE OF UTTAR PRADESH

2017-01-13

RAM SURAT RAM (MAURYA)

body2017
ORDER : Ram Surat Ram (Maurya), J. Heard Sri Ashutosh, for the appellants and A.G.A, for State of U.P. 2. This appeal has been filed from the conviction and sentence passed by Additional Sessions Judge, Court No. 1, Azamgarh, dated 29.08.2012, in S.T. No. 243 of 2002, State of U.P. v. Prabhawat Devi and others (arising out of Case Crime No. 1009 of 2001, under Section 498-A, 304-B IPC, P.S. Kotwali, district Azamgarh), sentencing the appellants for ten years rigorous imprisonment under Section 304-B IPC and two years rigorous imprisonment with fine of Rs. 2000/- each under Section 498-A IPC. 3. On the complaint dated 31.10.2001 of Raj Kumar Sharma son of Jagdev Sharma, resident of Nooruddinpur, P.S. Jiyanpur, district Azamgarh (PW-1) (brother of the deceased), Constable 266 Baliram Singh (PW-9) registered FIR of Case Crime No. 1009 of 2001, under Section 498-A, 304-B IPC, on 01.11.2001 at 13.10 hours, at police station Kotwali, district Azamgarh, against Pramod Vishwakarma (husband), Vijay (Jeth), Ajay (dewar), Prabhawati Devi (mother-in-law) and Mangla (Jethani) of Usha Devi, the deceased. It has been stated in the FIR that his sister Usha Devi was married to Pramod Vishwakarma son of Bhagwan Das, resident of Bageshwar Nagar, P.S. Kotwali, district Azamgarh, on 12.03.2000, according to Hindu rites. After marriage, at the time of bidai, Pramod Vishwakarma and his brothers Vijay and Ajay demanded one Hero Honda motorcycle and Rs. 10000/- cash as dowry. Due to poverty, the first informant expressed his inability to give aforesaid dowry, then they became annoyed and left for their house without bidai of his sister. Later on, he and his relations requested them, then bidai of his sister took place but they asked to arrange aforesaid dowry forthwith. Due to poor financial condition, the first informant could not arrange aforementioned dowry. For which, husband Pramod Vishwakarma, mother-in-law Prabhawati Devi, Jeth Vijay, dewar Ajay and Jethani Mangla of Usha Devi began to create pressure upon her in many ways and used to taunt and beat her on every things. They used to abuse, beat and torture her. After finding no way, his sister informed him through a letter. Then he went to matrimonial house of his sister along with the letter, one month prior to the incident, where his sister told him that he had accepted to give Hero Honda motorcycle and Rs. 10000/- cash but had not fulfilled their demand till today. After finding no way, his sister informed him through a letter. Then he went to matrimonial house of his sister along with the letter, one month prior to the incident, where his sister told him that he had accepted to give Hero Honda motorcycle and Rs. 10000/- cash but had not fulfilled their demand till today. For which her husband, mother-in-law, Jeth, Jethani and dewar, throughout used to torture and threaten to kill her. The first informant tried to talk with Pramod, showing the letter of his sister, then he torn the letter and told that after assuring to give dowry now he was making them fool. If he did not give aforesaid dowry within one month, then he would not leave his sister alive. In the night of 25.10.2001, the husband, mother-in-law, Jeth, Jethani and dewar of his sister killed her by strangulation. After getting information of the death of his sister, he went to her matrimonial house, then he found his sister dead and her post-mortem was being conducted at Government Hospital Azamgarh. 4. Vijay Kumar Vishwakarma (appellant-2) informed about the death of Usha Devi to police on 26.10.2001 at 11.40 hours. On which, Inquest (Ex-Ka-2) of the deceased was conducted by Subhash Chandra Yadav, Naib Tahsildar (PW-2) on 26.10.2001 between 12.00 to 14.30 hours along with SI J.N. Yadav (PW-7). Post mortem was conducted by Dr. Yusuf Ansari (PW-5) along with Dr. A.K. Mishra on 26.10.2001 at 16.00 hours. In post mortem report (Ex-Ka-8), cause of death was mentioned as "Asphyxia due to ante-mortem hanging". Dy. S.P. Chandrama Singh (PW-6), started investigation on 01.11.2001. Thereafter, investigation was transferred to Dy. S.P. Nand Lal Singh (PW-8), who after investigation submitted charge sheet against Prabhawati Devi (mother-in-law), Pramod Vishwakarma (husband) and Vijay (Jeth) of the deceased, under Section 498-A, 304-B IPC on 19.03.2002 and exonerated Ajay (dewar), and Mangla (Jethani). On committal, S.T. No. 243 of 2002 was registered against the appellants. Additional Session's Judge framed charges on 23.07.2002. Appellants denied charges and claimed trial. 5. Prosecution examined Raj Kumar Sharma (PW-1), the first informant and brother of the deceased, Subhash Chandra Yadav (PW-2), who conducted inquest of the deceased, Vindhyanchal (PW-3), maternal uncle of the deceased, Sant Saran (PW-4), maternal uncle of the deceased, Dr. Additional Session's Judge framed charges on 23.07.2002. Appellants denied charges and claimed trial. 5. Prosecution examined Raj Kumar Sharma (PW-1), the first informant and brother of the deceased, Subhash Chandra Yadav (PW-2), who conducted inquest of the deceased, Vindhyanchal (PW-3), maternal uncle of the deceased, Sant Saran (PW-4), maternal uncle of the deceased, Dr. Yusuf Ansari (PW-5), who conducted autopsy of the deceased, Chandrama Singh (PW-6), first Investigating Officer, SI J.N. Yaday (PW-7), Nand Lal Singh (PW-8), second Investigating Officer, Constable Baliram Singh (PW-9), to prove check FIR. The appellants in their statements under Section 313 Cr.P.C. admitted date of marriage but denied the prosecution case. Pramod Vishwakarma stated that his wife was mentally weak and when he refused to send her to her father's house, then she committed suicide. The appellants also examined Chauthi Yadav (DW-1), a tenant in their house to prove that Usha Devi had committed suicide and Arvind Chaudhary (DW-2), claiming himself as mediator of the marriage, who had stated that one day before incident, he along with Raj Kumar Sharma went to matrimonial house of Usha Devi. She did not make any complaint to them in respect of demand of dowry or torture by the appellants for non-fulfilment of the demand. 6. Additional Sessions Judge, by his judgment dated 29.08.2012, held that Usha Devi, the deceased was married to Pramod Vishwakarma on 12.03.2000. Occurrence took place on 25.10.2001 in night and FIR was lodged on 01.11.2001 at 13.10 hours. Unnatural death of Usha Devi was caused during seven years of marriage. Raj Kumar Sharma (PW-1) had stated that on information, when he had gone to matrimonial house of his sister, she was lying dead. He found injuries on her head and back of body, then he lost his temper. Other persons took him to his house. His parents were living in Bihar. He thought it proper to take any action after calling his parents. His parents came after 5-6 days of the incident. After consultation, they went to police station Kotwali, where complaint was written and handed over to police on 31.10.2001 at 12.00 noon. On which FIR was lodged on 01.11.2001 at 13.10 hours. In the fact of the case, delay in lodging FIR was properly explained. His parents came after 5-6 days of the incident. After consultation, they went to police station Kotwali, where complaint was written and handed over to police on 31.10.2001 at 12.00 noon. On which FIR was lodged on 01.11.2001 at 13.10 hours. In the fact of the case, delay in lodging FIR was properly explained. From evidence of PW-1, 3 and 4, it was proved that the deceased was subjected to cruelty and torture by the appellants for demand of one Hero Honda motorcycle and Rs. 10000/- as dowry. From evidence of the prosecution, the charges against the appellants under Section 304-B, 498-A IPC was proved. On these findings, he convicted the appellants under Section 498-A, 304-B IPC and sentenced as aforesaid. Hence, this appeal has been filed. 7. I have considered the arguments of the counsel for the parties and examined record. Offence of "dowry death" are generally committed in complete secrecy, inside the house. It has become a large social evil in this country. By Criminal Law (Second Amendment) Act, 1983 (Act 46 of 1983), Parliament introduced Chapter XX-A into Penal Code, 1860 (IPC) containing Section 498-A, in order to "deal effectively, not only with cases of dowry deaths, but also cases of cruelty to married women by their in-laws". Conspicuously, this section does not employ the word "dowry" at all. In essence, the amendment makes matrimonial cruelty to the wife punishable with imprisonment for a term which may extend to three years together with fine. The Explanation to Section 498-A defines "cruelty" in clause (a) to the Explanation to first mean wilful conduct as is likely to drive the woman to commit suicide or to cause grave injury or danger to her life. Since there is no allusion to dowry it converts cruelty, which would ordinarily entitle the wife to seek a dissolution of her marriage, into a criminal act. Parliament restricted the subject offence to only cruelty perpetuated on women since their emancipation, in meaningful terms, largely remains a mirage. Secondly, broadly stated, clause (b) to the Explanation of Section 498-A IPC, postulates harassment meted out to the woman with a view to coercing her or her relatives to meet any unlawful demand for any property or valuable security. Although this clause does not employ the word "dowry", it is apparent that its object is to combat this odious societal excrescence. Although this clause does not employ the word "dowry", it is apparent that its object is to combat this odious societal excrescence. Act 46 of 1983 simultaneously incorporated changes in Section 174 (3) CrPC pertaining to the suicide or death of a woman within seven years of her marriage; it mandated the examination by the nearest civil surgeon of the body of the unfortunate woman. In addition thereto, Section 113-A was introduced into the Evidence Act, 1872, by Clause 7 of Act 46 of 1983, specifies that when the question is whether the commission of suicide by a woman had been abetted by her husband or his relative and it is shown that she has 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 relatives of her husband. Realizing difficulties of prosecution in proving guilt of "dowry death" beyond reasonable doubt, as required under criminal law, Parliament by Act No. 43 of 1986 made drastic amendments. In Indian Penal Code, 1860 Section 304B, in Dowry Prohibition Act, 1961 Section 8A and in Evidence Act, 1872 Section 113B were added, making it mandatory for the Court to raise presumption of dowry death, if its ingredients are shown to exist by the prosecution. 8. A Bench of three Hon'ble Judges of Supreme Court after considering previous judgments, in V.K. Mishra v. State of Uttarakhand, (2015) 9 SCC 588 , held that in order to attract application of Section 304-B IPC, the essential ingredients are as follows : 1. The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance. 2. Such a death should have occurred within seven years of her marriage. 3. She must have been subjected to cruelty or harassment by her husband or any relative of her husband. 4. Such cruelty or harassment should be for or in connection with demand of dowry. 5. Such cruelty or harassment is shown to have been meted out to the woman soon before her death. 6. 3. She must have been subjected to cruelty or harassment by her husband or any relative of her husband. 4. Such cruelty or harassment should be for or in connection with demand of dowry. 5. Such cruelty or harassment is shown to have been meted out to the woman soon before her death. 6. On proof of the essential ingredients mentioned above, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. 9. Supreme Court in Sher Singh v. State of Haryana, (2015) 3 SCC 724 , held that in Section 113-A of the Evidence Act, Parliament has, in the case of a wife's suicide, "presumed" the guilt of the husband and the members of his family. Significantly, in Section 113-B which pointedly refers to dowry deaths, Parliament has again employed the word "presume". However, in substantially similar circumstances, in the event of a wife's unnatural death, Parliament has in Section 304-B "deemed" the guilt of the husband and the members of his family. The use of word "shown" instead of "proved" in Section 113-A and 113-B of Evidence Act, 1872, indicates that the onus cast on the prosecution would stand satisfied on the anvil of a mere preponderance of probability. In other words, "shown" will have to be read up to mean "proved" but only to the extent of preponderance of probability. Thereafter, the word "deemed" used in that section is to be read down to require an accused to prove his innocence, but beyond reasonable doubt. The "deemed" culpability of the accused leaving no room for the accused to prove innocence was, accordingly, read down to a strong "presumption" of his culpability. The accused is required to rebut this presumption by proving his innocence. The same view was reiterated in V.K. Mishra v. State of Uttarakhand, (2015) 9 SCC 588 . 10. A Bench of three Hon'ble Judges of Supreme Court in Kans Raj v. State of Punjab, (2000) 5 SCC 207 , held that "Soon before" is a relative term which is required to be considered under specific circumstances of each case and no straitjacket formula can be laid down by fixing any time-limit. 10. A Bench of three Hon'ble Judges of Supreme Court in Kans Raj v. State of Punjab, (2000) 5 SCC 207 , held that "Soon before" is a relative term which is required to be considered under specific circumstances of each case and no straitjacket formula can be laid down by fixing any time-limit. This expression is pregnant with the idea of proximity test. The term "soon before" is not synonymous with the term "immediately before" and is opposite of the expression "soon after" as used and understood in Section 114, Illustration (a) of the Evidence Act. These words would imply that the interval should not be too long between the time of making the statement and the death. It contemplates the reasonable time which, as earlier noticed, has to be understood and determined under the peculiar circumstances of each case. In relation to dowry deaths, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be "soon before death" if any other intervening circumstance showing the non-existence of such treatment is not brought on record, before such alleged treatment and the date of death. It does not, however, mean that such time can be stretched to any period. Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time which, under the circumstances, be treated as having become stale enough. Supreme Court again in Baljinder Kaur v. State of Punjab, (2015) 2 SCC 629 , held that the proximity test i.e. there must be material to show that "soon before her death" the woman was subjected to cruelty or harassment "for or in connection with dowry". The facts must show the existence of a proximate live link between the effect of cruelty based on dowry demand and the death of the victim. "Soon before death" is a relative term and no straitjacket formula can be laid down fixing any time-limit. The facts must show the existence of a proximate live link between the effect of cruelty based on dowry demand and the death of the victim. "Soon before death" is a relative term and no straitjacket formula can be laid down fixing any time-limit. The determination of the period which can come within the term "soon before death" is left to be determined by the courts depending upon the facts and circumstances of each case. In cases related to dowry death, the circumstances showing the cruelty or harassment are not restricted to a particular instance, but normally refer to a course of conduct. Such conduct of cruelty or dowry harassment must be "soon before death". There should be a perceptible nexus between her death and the dowry related harassment or cruelty inflicted on her. Similar View has been taken in V.K. Mishra v. State of Uttarakhand, (2015) 9 SCC 588 . 11. The phrase "preponderance of probability" came for consideration before Supreme Court in N.G. Dastane (Dr) v. S. Dastane, AIR 1975 SCC 1534, in which it has been held that the normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by a preponderance of probabilities. This is for the reason that under the Evidence Act, 1872 Section 3, a fact is said to be proved when the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact-situation will act on the supposition that the fact exists, if on weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies. Important issues like those which affect the status of parties demand a closer scrutiny than those like the loan on a promissory note: "the nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue" or as said by Lord Denning, "the degree of probability depends on the subject-matter. In proportion as the offence is grave, so ought the proof to be clear", Blyth v. Blyth, (1966) All E R 524. But whether the issue is one of cruelty or of a loan on a pronote, the test to apply is whether on a preponderance of probabilities the relevant fact is proved. In civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged. 12. In light of aforementioned principles, evidence of the present case has to be scrutinized. In present case, findings of trial court that Usha Devi (the deceased) was married to Pramod Vishwakarma (appellant-3) on 12.03.2000 and Usha Devi died on 25.10.2001 in night at the house of the appellants due to hanging do not suffer from any illegality nor it has been challenged by the counsel for the appellants before this Court, during arguments. 13. For conviction under Section 498-A and 304-B IPC the prosecution has to show (which means to prove on a preponderance of probabilities) that there was demand of dowry and in that connection, the deceased was subjected to cruelty or harassment by her husband or any relative of her husband "soon before death". In post mortem report (Ex-Ka-8), ligature mark 32 cm X 2 cm, all around neck, except gaping of 7 cm on right side of neck in outer and posterior aspect was found. Abdomen was empty. Cause of death was mentioned as "Asphyxia due to ante-mortem hanging". In post mortem report (Ex-Ka-8), ligature mark 32 cm X 2 cm, all around neck, except gaping of 7 cm on right side of neck in outer and posterior aspect was found. Abdomen was empty. Cause of death was mentioned as "Asphyxia due to ante-mortem hanging". The deceased was of average body built and her age was mentioned as about 24 years. Apart from ligature mark, no other injury was found on the dead body of the deceased, in the post mortem report. Although other injuries were mentioned in Inquest but Dr. Yusuf Ansari (PW-5) has specifically denied about any other injury. Duration was mentioned as half day. Dr. Yusuf Ansari (PW-5) in his statement has denied that ligature mark as mentioned above would come by pressing neck through thick rope. He further stated that in hanging, trachea of woman is normally not fractured. At the time of inquest, only blouse and petticoat were found on the dead body. Sari was utilized for hanging from hook in the roof as also proved by Chauthi Yadav (DW-1). From the fact that hanging was done in night, abdomen was empty and there was no other ante-mortem injury on the dead body, only inference can be drawn that the deceased had committed suicide. 14. Now it has to be examined as to whether there was demand of dowry and torture of the deceased by the husband or other relative of the husband soon before the death, due to which the deceased had committed suicide. Although father and mother of the deceased were alive but they did not come in witness box. However, Raj Kumar Sharma (PW-1) in his statement has stated that apart from him, his father and brother also used to visit matrimonial house of his sister, during her life time. Investigating Officer did not even interrogate the father. In order to prove dowry demand and torture of the deceased soon before the death for its not fulfilment, the prosecution examined Raj Kumar Sharma (PW-1), elder brother of the deceased, Vindhyanchal (PW-3) and Sant Saran (PW-4), maternal uncles of the deceased. The appellants examined Arvind Chaudhary (DW-2), alleged mediator of the marriage in order to rebut dowry demand and torture soon before death. 15. Raj Kumar Sharma (PW-1), who is an elder brother of the deceased, has given his age as 23 years in his statement and occupation as driver. The appellants examined Arvind Chaudhary (DW-2), alleged mediator of the marriage in order to rebut dowry demand and torture soon before death. 15. Raj Kumar Sharma (PW-1), who is an elder brother of the deceased, has given his age as 23 years in his statement and occupation as driver. He stated that his sister Usha Devi was married to Pramod Vishwakarma son of Bhagwan Das, resident of Bageshwar Nagar, P.S. Kotwali, district Azamgarh, on 12.03.2000, according to Hindu rites. At the time of bidai after marriage, quarrel had taken place. Accused Pramod, Vijay and Ajay were demanding Hero Honda motorcycle and Rs. 10000/- cash as dowry, at the time of bidai. On pacifying by his maternal uncle Sant Saran, bidai of his sister had taken place. At that time, they assured that later on, after making arrangement, they would give motorcycle and cash. After bidai, when he had gone to matrimonial house of his sister, she informed him about abusing her by Pramod, Vijay, Ajay, Prabhawati Devi and wife of Vijay and her torture by them. Promod had stated that in any condition, motorcycle and cash had to be given to him. One month prior to the incident, he had gone to matrimonial house of his sister along with the letter written by her. His sister also informed him about her torture by the accused. When he told Pramod about it and shown the letter to him then he torn the letter and told him that he was making fool to him. The accused also threatened him that if their demand was not fulfilled then they would kill his sister. In the night of 25.10.2001, the accused killed his sister for not fulfilment of their dowry demand. He got information of the death of his sister on 26.10.2001, in morning. When he went to matrimonial house of his sister, then he found his sister was lying dead and there were injuries on her head and back of body. At the time of incident, his parents were living in Bihar. He thought it proper to take any action after calling his parents. His parents came after 5-6 days of the incident. After consultation, they went to police station Kotwali, where complaint was written and handed over to police on 31.10.2001 at 12.00 noon. On which FIR was lodged on 01.11.2001 at 13.10 hours. He thought it proper to take any action after calling his parents. His parents came after 5-6 days of the incident. After consultation, they went to police station Kotwali, where complaint was written and handed over to police on 31.10.2001 at 12.00 noon. On which FIR was lodged on 01.11.2001 at 13.10 hours. In the complaint, inadvertently date of marriage was written as 12.03.2001. In cross-examination, he had stated that at the time of marriage he had given Rs. 5000/- cash and ornaments to his sister. Before marriage, it was agreed between them to give Rs. 15000/- cash and one motorcycle as dowry. At the time of marriage, bidai of his sister had taken place. After living one month at her matrimonial house, she came back to his house. During this period, she was happy. Thereafter, she lived at his house for one month. Thereafter she again went to her matrimonial house and remained there till her death. After four-five months of the marriage, she informed about demand of Rs. 15000/- and one Hero Honda motorcycle and her torture, beating, taunting and abusing by the accused for dowry demand. After coming to know about it, he wanted bidai of his sister but the accused had refused. He did not make any complaint to any officer regarding torture of his sister. His maternal uncle Vindhyanchal and Sant Saran had pacified the accused. Thereafter, they remained silent for two three months. His sister wrote letter only at one time, before one month of the incident. Two months prior to receiving letter, he had gone to matrimonial house of his sister. At that time also sister made complaint regarding danger of her life but he did not make any complaint to police officer. Thereafter, he tried for bidai of his sister but it was refused by the accused. He did not know as to when cremation of his sister had taken place. Information of death of his sister was given to him by Arvind Chaudhary (DW-2), who was his friend. He denied suggestion that his sister wanted frequent bidai and due to not permitting bidai, she had committed suicide. 16. Vindhyanchal (PW-3) is resident of village Jamuni, has stated that Usha Devi was his sister's daughter. She was married to Pramod Vishwakarma, resident of Bageshwar Nagar, about one and half year prior to her death, according to Hindu rites. He denied suggestion that his sister wanted frequent bidai and due to not permitting bidai, she had committed suicide. 16. Vindhyanchal (PW-3) is resident of village Jamuni, has stated that Usha Devi was his sister's daughter. She was married to Pramod Vishwakarma, resident of Bageshwar Nagar, about one and half year prior to her death, according to Hindu rites. At the time of settlement of marriage, the accused demanded Rs. 15000/- cash and one Hero Honda motorcycle as dowry. At the time of baraichha (engagement), Rs. 5000/- was given and marriage was performed. At the time of bidai, the accused Pramod, Vijay and Ajay demanded Hero Honda motorcycle and Rs. 10000/-. They became annoyed for that and began to go back without taking bride. On their pacifying, they got bidai of bride. After bidai, Usha came back to her father's house after one month. When she went again to her matrimonial house, then she had never returned. During this period, he had visited her matrimonial house for two times. Then she informed that the accused were torturing, beating and telling her to obtain Rs. 10000/- and Hero Honda motorcycle from her parents otherwise they would kill her. Due to poverty, they could not fulfil their demand. On 26.10.2001, he went to the house of the accused then he found Usha as dead and there were injuries on her head and back of body. Raj Kumar was shocked there, as such they took Raj Kumar back. In cross-examination, he stated that at the time of settlement of marriage, he, Sant Saran, father and brother of the deceased were present and dowry of Rs. 15000/and one motorcycle were settled. After six months of bidai, he went to matrimonial house of Usha, then she asked him to give whatever dowry they have settled, as she was being tortured by the accused for that. He met with Prabhawati and Vijai who also told that Rs. 15000/and one Hero Honda motorcycle was due and to give it. Usha did not tell him for her bidai. He told the accused for bidai of Usha but it was refused by the accused. He did not make any complaint to any police officer regarding torture or beating of Usha. He did not inform the family members of Usha regarding her torture and beating as they were residing away. Usha did not tell him for her bidai. He told the accused for bidai of Usha but it was refused by the accused. He did not make any complaint to any police officer regarding torture or beating of Usha. He did not inform the family members of Usha regarding her torture and beating as they were residing away. After eight months of marriage, he went to matrimonial house of Usha second time. Thereafter they remained silent for two three months. But he had not give any complaint to police officer. 17. Sant Saran (PW-4) son of Ramdhani, resident of village Mamrakhapur, PS Kotwali, district Azamgarg, is the maternal uncle of the deceased. He had stated that Usha Devi was married to Pramod Vishwakarma on 12.03.2001. At the time of settlement of marriage, they agreed to give Rs. 15000/- cash and one Hero Honda motorcycle as dowry. At the time of tilak, Rs, 5000/- was given. At that time, accused were annoyed but they assured to give remaining dowry at the time of marriage. At the time of bidai the accused Pramod, Vijay and Ajay demanded Hero Honda motorcycle and Rs. 10000/- and annoyed for that dowry. On their pacifying, they got bidai of bride. After bidai, he visited matrimonial house of Usha two times. First time, he could not meet Usha but second time he met Usha and she asked him to inform her father on telephone to give motorcycle and cash. For which the accused were torturing and beating her. He came back to his house after pacifying Ajay, Vijay and Pramod. After one month, he got information regarding dowry death of Usha. In cross-examination, he stated that at the time of settlement of marriage, he, Sant Saran, father and brother of the deceased were present and dowry of Rs. 15000/- and one motorcycle was settled. He denied that one motorcycle was given to the accused at the time of marriage, which was returned after death of Usha. He told the accused for bidai of Usha but it was refused by the accused. He did not make any complaint to any police officer regarding torture or beating of Usha. He did not inform the family members of Usha regarding her torture and beating as he had no phone. 18. The appellant examined Arvind Chaudhary (DW-2), who is alleging himself as mediator of the marriage. He did not make any complaint to any police officer regarding torture or beating of Usha. He did not inform the family members of Usha regarding her torture and beating as he had no phone. 18. The appellant examined Arvind Chaudhary (DW-2), who is alleging himself as mediator of the marriage. He has stated that one day before death of Usha, he along with Raj Kumar Sharma had gone to matrimonial house of Usha. She was very happy and did not make any complaint to him or to Raj Kumar Sharma, regarding demand of dowry or torture. When they met with Usha, her family members were not present. In cross-examination, he had stated that Vindhyanchal (PW-3) and he had furniture shop at police station Sidhari. Shankar, uncle of Pramod Sharma had an iron shop at Machhali Mandi Sidhari, where Viaj and Pramod also used to sit. When Vindhyanchal was searching bride for marriage of Usha, then he had informed him about Pramod. He denied the allegation that he was not mediator of the marriage. Thus he had proved his prior relation with Vindhyanchal (PW-3) as well as the appellants. 19. Raj Kumar Sharma (PW-1), in his cross-examination has admitted that Arvind Chaudhary was his friend and on 26.10.2001 in the morning he was present at his house, when he came to know about the death of Usha. In the light of this admission of Raj Kumar Sharma, statement of Arvind Chaudhary (DW-2) that one day before death of Usha, he along with Raj Kumar Sharma had gone to matrimonial house of Usha; she was very happy and did not make any complaint to him or to Raj Kumar Sharma, regarding demand of dowry or torture; and when they met with Usha, her family members were not present, appears to be correct. According to Raj Kumar Sharma (PW-1), after living for one month at matrimonial house, when Usha Devi went to his house, she was happy. Thereafter, she remained at his house for about one month. After four-five months of the marriage, she informed about dowry demand. Information of death of his sister was given to him by Arvind Chaudhary (DW-2), who was his friend. He either in his complaint or in his examination-in-chief had not stated about demand of dowry prior to marriage. Thereafter, she remained at his house for about one month. After four-five months of the marriage, she informed about dowry demand. Information of death of his sister was given to him by Arvind Chaudhary (DW-2), who was his friend. He either in his complaint or in his examination-in-chief had not stated about demand of dowry prior to marriage. Raj Kumar Sharma (PW-1) either in complaint or in his examination-in-chief has not stated about demand of dowry at the time of settlement of marriage. In cross examination he has stated that when first time Usha Devi went to his house she was happy. Vindhyanchal (PW-3) in his statement has admitted that he had gone to matrimonial house of Usha Devi last time after 8 months of her marriage as such his statement is not relevant to 'soon before death'. Sant Saran (PW-4) has not given any information regarding alleged demand of dowry and torture of Usha Devi to her father and his conduct was not natural. Father of the deceased was alive but he was not examined before the court thus best witness has been withheld by the prosecution as such adverse inference is liable to be drawn under Section 114 of Evidence Act, 1872. If there had been threat of death of Usha Devi for not fulfilment of demand of dowry, there would be no reason for PWs-1, 3 and 4 for not giving any complaint to police in this respect. They had not even made serious effort for bidai of Usha. If their statements are examined on the touchstone of preponderance and probabilities then demand of dowry and cruelty soon before death is not proved. 20. So far as subsequent conduct of the appellants is concerned, it is admitted that information regarding death of Usha Devi was given to the first informant and police by the appellants. Apart from ligature mark, there was no other ante-mortem injury on the body of the deceased Usha Devi as such it is also not proved that soon before death, she was subjected to cruelty or any force was exercised by others for hanging her. As such it is proved that death of Usha Devi was not homicidal but suicidal. According to the appellants, the deceased was carrying mental agony for not permitting her bidai. As such it is proved that death of Usha Devi was not homicidal but suicidal. According to the appellants, the deceased was carrying mental agony for not permitting her bidai. From statement of Arvind Chaudhary (DW-2) it is proved that he and Raj Kumar Sharma went to her matrimonial house on 25.10.2001. Raj Kumar Sharma (PW-1) had admitted that after three months of marriage, she came to matrimonial house second time and thereafter she never went to his house. Thus, it is proved that Usha Devi was living in her matrimonial house from a long time. 21. Supreme Court in Hans Raj v. State of Haryana, (2004) 12 SCC 257 , held that, unlike Section 113-B of the Evidence Act, a statutory presumption does not arise by operation of law merely on the proof of circumstances enumerated in Section 113-A of the Evidence Act. Under Section 113-A of the Evidence Act, the prosecution has to first establish that the woman concerned committed suicide within a period of seven years from the date of her marriage and that her husband has subject her to cruelty. Even though those facts are established, the court is not bound to presume that suicide has been abetted by her husband. Section 113-A, therefore, gives discretion to the court to raise such a presumption having regard to all other circumstances of the case, which means that where the allegation is of cruelty, it can consider the nature of cruelty to which the woman was subjected, having regard to the meaning of the word "cruelty" in Section 498-A IPC. In Pinakin Mahipatray Rawal v. State of Gujarat, (2013) 10 SCC 48 , held that scope of Section 113-A of the Evidence Act, wherein this Court has reiterated the legal position that the legislative mandate of Section 113-A of the Evidence Act is that if a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband had subjected her to cruelty, as per the presumption defined in Section 498-A IPC, the court may presume, having regard to all other circumstances of the case, that such suicide had been abetted by the husband or such person. The court held that, though a presumption could be drawn, the burden of proof of showing that such an offence has been committed by the accused under Section 498-A IPC is on the prosecution. The court held that the burden is on the prosecution to establish the fact that the deceased committed suicide and the accused abetted the suicide. In Mangat Ram v. State of Haryana, (2014) 12 SCC 595 , held that the mere fact that if a married woman commits suicide within a period of seven years of her marriage, the presumption under Section 113-A of the Evidence Act would not automatically apply. The legislative mandate is that where a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband has subjected her to cruelty, the presumption as defined under Section 498-A IPC, may attract, having regard to all other circumstances of the case, that such suicide has been abetted by her husband or by such relative of her husband. The term "the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband" would indicate that the presumption is discretionary. So far as the present case is concerned, we have already indicated that the prosecution has not succeeded in showing that there was a dowry demand, nor would the reasoning adopted by the courts below would be sufficient enough to draw a presumption so as to fall under Section 113-A of the Evidence Act. 22. In view of the aforesaid discussions, the appeal succeeds and is allowed. The conviction and sentence passed by Additional Sessions Judge, Court No. 1, Azamgarh, dated 29.08.2012, in S.T. No. 243 of 2002, State of U.P. v. Prabhawati Devi and others (arising out of Case Crime No. 1009 of 2001, under Section 498-A, 304-B IPC, P.S. Kotwali, district Azamgarg), is set aside. Prabhawati Devi, Vijay and Pramod (the appellants) are in jail, they be released forthwith. The appellants are set at liberty.