JUDGMENT : ROHIT B. DEO, J. The appellants accused are taking exception to the judgment and order dated 13-9-2006 rendered in Sessions Trial 19 of 2000 by the Additional Sessions Judge, Pusad, by and under which, the accused are convicted for offence punishable under section 498-A read with section 34 of the Indian Penal Code (“IPC” for short) and are sentenced to suffer rigorous imprisonment for three years and to payment of fine of Rs. 500/- and are further convicted for offence punishable under section 304-B read with section 34 of Indian Penal Code and sentenced to suffer imprisonment for life and to payment of fine of Rs. 1000/-. The accused are acquitted of offence punishable under section 302 read with section 34 of the Indian Penal Code. 2. Heard Shri K.S. Narwade, learned counsel for the accused and Smt. S.Z. Haidar, learned Additional Public Prosecutor for the respondent State. 3. Deceased Pushpa and accused 1 Anil Datkar entered into matrimonial alliance on 9-5-1999. Pushpa suffered burn injuries on 23-10-1999 and expired on 1-11-1999 while undergoing treatment at the Yavatmal Government Hospital. 4. Pushpa’s father PW 1 Gangadhar Gore lodged report Exh. 59 at Police Station Mahagaon on 5-11-1999 alleging that Pushpa was illtreated by the accused to coerce her to fulfill dowry demand and on the fateful day accused 3 Parbatabai the mother in law of Pushpa poured kerosene on Pushpa’s person and accused 4 Bali Datkar – the sister in law of Pushpa pushed her on the hearth with the result Pushpa sustained severe burn injuries leading to her death on 1-11-1999. PW 1 alleged in the said report that while undergoing treatment Pushpa disclosed to one Digambar and his wife Indirabai Dongaonkar (PW 2) the complicity of accused 3 Parbatabai and accused 4 Bali and a similar disclosure was made by Pushpa to PW 1 on 23-10-1999. Initially an accidental death inquiry was registered under section 174 of the Code of Criminal Procedure, 1974 (“Code” for short) and on the basis of the report Exh. 59, Mahagaon Police registered offence punishable under sections 498-A, 304-B and 302 read with section 34 of the Indian Penal Code and sections 3 and 4 Dowry Prohibition Act against the accused. 5. 59, Mahagaon Police registered offence punishable under sections 498-A, 304-B and 302 read with section 34 of the Indian Penal Code and sections 3 and 4 Dowry Prohibition Act against the accused. 5. Upon culmination of investigation, Final Report under section 173 of the Code was submitted in the Court of Judicial Magistrate First Class, Mahagaon, who committed the proceedings to the Sessions Court. The learned Sessions Judge framed charge (Exh. 38) for offence punishable under section 498-A, 304-B and 302 read with section 34 of the Indian Penal Code. The accused abjured guilt and claimed to be tried in accordance with law. The defence, as is discernible from the statements of the accused recorded under section 313 of the Code, is of total denial. However, the trend and tenor of the cross-examination reveal that the further defence is that Pushpa suffered accidental burn injuries. 6. The prosecution examined father of the prosecutrix Gangadhar Gore (PW 1), a neighbour and family friend Indirabai Dongaonkar (PW 2) and Investigating Officer (PW 3) Nivrutti Dambalkar to substantiate the charge. The learned Sessions Judge, was pleased to record a finding that the death was not accidental. The learned Sessions Judge relied on the oral dying declarations in the nature of disclosures made by Pushpa to PW 1 Gangadhar and PW 2 Indirabai and having done so, inexplicably recorded an incongruent finding that homicidal death is not proved. Irrefutably, as is admitted by the Investigating Officer Shri Nivrutti Dambalkar, a written dying declaration was recorded in which Pushpa absolved the accused of any complicity and stated that she suffered accidental burns while boiling water. The written dying declaration was not produced alongwith the charge-sheet. The learned Sessions Judge has brushed under the carpet the written dying declaration on the premise that the written dying declaration is not true and voluntary statement of Pushpa. 7. Section 304-B of the Indian Penal Code was brought on the statute book by the Dowry Prohibition Amendment Act, 1986, with the avowed object of curing and curbing the menace of dowry death. Consequential amendments were effected in the Indian Evidence Act and the Criminal Procedure Code. Offence punishable under section 304-B of the Indian Penal Code was made non-bailable and triable by the Sessions Court. Section 113-B was introduced in the Indian Evidence Act which reads thus : “113-B. Presumption as to dowry death. Consequential amendments were effected in the Indian Evidence Act and the Criminal Procedure Code. Offence punishable under section 304-B of the Indian Penal Code was made non-bailable and triable by the Sessions Court. Section 113-B was introduced in the Indian Evidence Act which reads thus : “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)” 8. The statutory presumption under section 113-B of the Indian Evidence Act is a presumption of law which the Court is obligated to invoke, and the legislative intent is manifested from the use of expression ‘shall presume’ in contradiction with the expression “may presume” used in section 113-A of the Indian Evidence Act. However, sine qua non for taking recourse to the statutory presumption under section 113-B of the Indian Evidence Act is that the prosecution must prove beyond reasonable doubt the ingredients of section 304-B of the Indian Penal Code. Section 304-B of the Indian Penal Code reads thus : “304-B. Dowry death – (1) 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 purposes of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 2961) (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.” In view of the Explanation to section 304-B(1) of the Indian Penal Code, it would be relevant to note the provisions of section 2 of the Dowry Prohibition Act, 1961, which reads thus : “2. Definition of “dowry” - In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly (a) by one party to a marriage to the other party to the marriage, or (b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person; at or before (of any time after the marriage) (in connection with the marriage of the said parties, but does not include) dower or mahr in the case of persons to whom the Muslim Personal Law (Sharirat) applies. Explanation II – The expression “valuable security” has the same meaning as in section 30 of the Indian Penal Code (45 of 1860)” The ingredients of section 304-B are as follows : (1) The death of the woman was caused due to burns, bodily injury or due to unnatural circumstances. (2) The death should be within seven years of marriage. (3) It would be shown that soon before death the woman was subjected to cruelty or harassment by her husband or any relative of the accused. (4) The cruelty or harassment was for or in connection with any demand of dowry. Pushpa died within six months of the marriage and it is not in dispute that the death is caused by burns. The pivotal issue is whether the statutory presumption under section 113-A of the Indian Evidence Act is activated. It is trite law, that in order to invoke the presumption, the prosecution is obligated to show that the deceased was subjected to cruelty or harassment by her husband or any other relative or in connection with any demand of dowry. The pivotal issue is whether the statutory presumption under section 113-A of the Indian Evidence Act is activated. It is trite law, that in order to invoke the presumption, the prosecution is obligated to show that the deceased was subjected to cruelty or harassment by her husband or any other relative or in connection with any demand of dowry. The clarificatory explanation to section 113-A of the Evidence Act is that for the purposes of section 113-A cruelty shall be as defined in section 498-A of Indian Penal Code. Such a clarificatory explanation is not legislatively incorporated in section 113-B of the Indian Evidence Act. However, it is judicially recognized that the cruelty contemplated by section 304-B of Indian Penal Code and section 113-B of the Evidence Act is the cruelty statutorily defined under explanation (a) and (b) to section 498-A of Indian Penal Code. Reference may be made to the judgment of the Apex Court in Smt. Shanti and another vs. State of Haryana, AIR 1991 SC. The relevant observations of which judgment read thus :— “6. Now we shall consider the question as to whether the acquittal of the appellants of the offence punishable under section 498-A makes any difference. The submission of the learned counsel is that the acquittal under section 498-A, Indian Penal Code would lead to the effect that the cruelty on the part of the accused is not established. We see no force in this submission. The High Court only held that section 304D and section 498-A, Indian Penal Code, are mutually exclusive and that when once the cruelty envisaged in section 498-A, Indian Penal Code culminates in dowry death of the victim, section 304-B alone is attracted and in that view of the matter the appellants were acquitted under section 498-A, Indian Penal Code. It can therefore be seen that the High Court did not hold that the prosecution has not established cruelty on the part of the appellants but on the other hand the High Court considered the entire evidence and held that the element of cruelty which is also an essential of section 304-B, Indian Penal Code has been established. Therefore the mere acquittal of the appellants under section 498-A, Indian Penal Code in these circumstances makes no difference for the purpose of this case. Therefore the mere acquittal of the appellants under section 498-A, Indian Penal Code in these circumstances makes no difference for the purpose of this case. However, we want to point out that this view of the High Court is not correct and sections 304-B and 498-A cannot be held to be mutually exclusive. 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”. In section 304-B there is no such explanation about the meaning of “cruelty” but having regard to the common background to these offences we have to take that the meaning of “cruelty or harassment” will be the same as we find in the explanation to section 498-A under which “cruelty” by itself amounts to an offence and is punishable. Under section 304-B as already noted, it is the “dowry death” that is punishable and such death should have occurred within seven years of the marriage. No such period is mentioned in section 498A and the husband or his relative would be liable for subjecting the woman to “cruelty” any time after the marriage. Further it must also be borne in mind that a person charged and acquitted under section 304-B can be convicted u/section 498-A without charge being there, if such a case is made out. But from the point of view of practice and procedure and to avoid technical defects it is necessary in such cases to frame charges under both the sections and if the case is established they can be convicted under both the sections but no separate sentence need be awarded under section 498-A in view of the substantive sentence being awarded for the major offence under section 304-B.” (Emphasis supplied) 9. Cruelty for the purpose of section 498-A of Indian Penal Code is statutorily defined thus : “498-A. Husband or relative of husband of a woman subjecting her to cruelty — 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 term 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 woman 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 scrutiny or is on account of failure by her or any person related to her to meet such demand.” It is a settled position that conduct which may constitute cruelty under a matrimonial law or which may be a matrimonial offence may not constitute cruelty for the purpose of section 498-A of the Indian Penal Code. The conduct should be wilful, which expression brings into play the intent, and should be such as may cause danger to life, limb or health, physical or emotional or to cause grave injury or which may drive the woman to commit suicide. Explanation (b) of section 498-A of the Indian Penal Code takes within its sweep harassment with a view to coerce the woman or any person related to her to meet an unlawful demand for any property or valuable security. Before we proceed to consider the evidence of PW1 and PW2 on cruelty to which the deceased Pushpa was allegedly subjected, we must note that it is not rare that due to trauma suffered, the relatives of the deceased indulge in false implication or over implication due to perceived grievance that the accused are somehow or the other responsible for the death of their near and dear one. It would be apposite to refer to the following observations of the Hon’ble Apex Court in Sharad Birdhichand Sarda vs. State of Maharashtra reported in 1984 MhLJ Online (S.C.) 1 = AIR 1984 SC 1622 : “In view of the close relationship and affection any person in the position of the witness would naturally have atendency to exaggerate or add facts which may not have been stated to them at all. This is human psychology and no one can help it. This is human psychology and no one can help it. Not that this is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer, the Court has to examine the evidence of interested witnesses with very great care and caution. Even if the witnesses were speaking a part of the truth or perhaps the whole of it they would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may not or could not have been stated may be imagined to have been stated unconsciously by the witnesses in order to see that the offender is punished. This is human psychology and no one can help it.” 10. We may now proceed to test the evidence on record on the anvil of the statutory provisions and the law articulated by the Hon’ble Apex Court. The version of PW1Gangadhar is that dowry of Rs. 25,000/- and 5 gm gold ring was to be given to the accused Anil in marriage, however, Rs. 5,000/- and gold ring remained to be given. This led to the accused ill-treating Pushpa and the accused used to quarrel with her, beat her and deprive her of food. The evidence that Rs. 5,000/- was not paid, that the accused used to quarrel with Pushpa and beat her, is an omission. PW 1 has deposed that before the festival of Panchami accused 4 Bali pushed Pushpa in the well in an attempt to kill her. The only other witness examined to prove cruelty is PW 2 Indirabai who was residing in the neighbourhood of PW1 before shifting to Nanded. PW 2 states that Pushpa disclosed to her that she was pushed in the well by Bali. PW 2 further states that Pushpa disclosed to her that her husband and family members are ill-treating her on the issue of balance dowry. The evidence that before Panchami accused Bali attempted to kill Pushpa by pushing her in the well is neither implicitly reliable nor confidence inspiring. An attempt to murder going unreported is highly improbable. Equally improbable and unnatural is the conduct of PW 1 of permitting Pushpa to reside in the matrimonial home despite the alleged attempt on her life. The evidence that before Panchami accused Bali attempted to kill Pushpa by pushing her in the well is neither implicitly reliable nor confidence inspiring. An attempt to murder going unreported is highly improbable. Equally improbable and unnatural is the conduct of PW 1 of permitting Pushpa to reside in the matrimonial home despite the alleged attempt on her life. The evidence on cruelty is too fragile to record a finding that cruelty within the meaning of Explanation (a) or (b) of section 498-A of the Indian Penal Code is established by the prosecution beyond reasonable doubt. The evidence that Pushpa disclosed that she was beaten by the accused and that the family of the accused used to quarrel with her is an embellishment. A vague and omnibus assertion that the accused ill-treated Pushpa is not sufficient to bring home the charge under section 498-A of the Indian Penal Code. We are satisfied that since the prosecution failed to prove that Pushpa was subjected to cruelty within the meaning of section 498-A of the Indian Penal Code, the statutory presumption under section 113-B of the Indian Evidence Act is not activated. 11. The learned Sessions Judge has relied on the alleged disclosures made by Pushpa to PW 1 and PW 2 to the effect that accused Parbatabai poured kerosene and accused Bali set her ablaze. We are unable to persuade ourselves to concur with the learned Sessions Judge. PW 1 admits that he did not inform either the hospital doctors or the staff that such a disclosure was made to Pushpa. The report Exhibit 59 is lodged four days after Pushpa’s death. PW 2 Indirabai, who claims to have visited the hospital three to four days after the incident, admits that she did not report the alleged disclosure made by Pushpa to police although police were present in the hospital. Concededly, the written dying declaration which absolves the accused of any wrong doing is suppressed. We find it inexplicable that a written dying declaration which is suppressed is held as untrue and unreliable by the learned Sessions Judge only on the premise that the disclosures made by Pushpa to PW 1 and PW 2 implicate the accused Parbatabai and Bali. We are further impelled to observe, that the investigation is unfair if not dishonest. We find it inexplicable that a written dying declaration which is suppressed is held as untrue and unreliable by the learned Sessions Judge only on the premise that the disclosures made by Pushpa to PW 1 and PW 2 implicate the accused Parbatabai and Bali. We are further impelled to observe, that the investigation is unfair if not dishonest. The Investigating Officer admits that statements of some persons of Dongaon were recorded, and the said persons stated that Pushpa’s flames were extinguished by one Kesharbai. The said statements are not produced on record nor is Kesharbai examined although the Investigating Officer asserts that he did record her statement. We have already held that the statutory presumption under section 113-B of the Indian Evidence Act is not activated. In the teeth of the evidence on record, or rather the lack thereof, we are inclined to hold that the prosecution has not proved the offence punishable under section 498-A and 304B of the Indian Penal Code beyond reasonable doubt. 12. The judgment and order impugned is set aside and the accused is acquitted of the offence punishable under section 498-A read with section 34 and section 304-B read with section 34 of the Indian Penal Code. 13. The bail bonds of the accused shall stand cancelled. Fine paid by the accused be refunded to them. 14. The appeal is allowed and disposed of. Appeal allowed.