JUDGMENT : The appellants seek to assail the judgment and order dated 18-8-2004 rendered by the learned Additional Sessions Judge, Darwha in Session Trial 81/2004 (Old 101/2000), by and under which the appellants-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 simple imprisonment for one year and to payment of fine of Rs.100/-. The accused are, however, acquitted of offence punishable under Section 304-B of the Indian Penal Code. 2. Heard Shri. S.U. Nemade, learned Counsel for the appellants-accused and Shri. V.P. Gangane, learned Additional Public Prosecutor for the respondent-State. 3. Concededly, the deceased Varsha and accused 1 Bansi entered into matrimonial alliance on 30-4-2000 and Varsha died due to consumption of poison on 31-7-2000 within three months of the marriage. 4. On the basis of report Exhibit 34 lodged by P.W.1 Shalik offence punishable under Sections 304-B and 498-A of the IPC and Sections 3 and 4 of the Dowry Prohibition Act was registered at Digras Police Station. Investigation ensued, upon completion of which charge-sheet under Sections 304-B and 498-A of the IPC and Sections 3 and 4 of the Dowry Prohibition Act was submitted in the court of Judicial Magistrate First Class, Digras, who committed the proceedings to the Sessions Court. 5. The learned Sessions Judge framed charge (Exhibit 7) under Sections 498-A and 304-B of the IPC. The accused abjured guilt and claimed to be tried in accordance with law. The defence is of total denial. The trend of the cross-examination would suggest that the defence was also that since the accused were poor, deceased Varsha was not happy. 6. Shri S.U. Nemade, learned Counsel for the accused submits that the conviction is entirely based on inadmissible evidence. The learned Sessions, having acquitted the accused of offence punishable under Section 304-B of the IPC, could not have considered the verbal statements of the deceased, since such verbal statements are not admissible under Section 32(1) of the Indian Evidence Act. Shri S.U. Nemade, learned Counsel relies, amongst others, on a judgment of the Hon'ble Apex Court in the case of Kantilal Martaji Pandor vs. State of Gujarat and another reported in (2013) 8 SCC 781 and in particular on the following observations. “17. Shri S.U. Nemade, learned Counsel relies, amongst others, on a judgment of the Hon'ble Apex Court in the case of Kantilal Martaji Pandor vs. State of Gujarat and another reported in (2013) 8 SCC 781 and in particular on the following observations. “17. The question that we have, therefore, to decide is whether the Court could have arrived at this finding that the appellant has starved the deceased and committed various acts of mental cruelty towards the deceased only on the basis of the contents of the letter dated 26.03.1992 written by the deceased to the Police Station. The letter written by the deceased on 26.03.1992 could be relevant only under Section 32(1) of the Evidence Act, 1872, which provides that a statement, written or verbal, of relevant facts made by a person who is dead, is relevant when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. The High Court in the present case has already held that the appellant was not guilty of abetting the suicide of the deceased and was, therefore, not guilty of the offence under Section 306, IPC. As the cause of the death of the deceased is no more in question in the present case, the statements made by the deceased in the letter dated 26.03.1992 to the Police Station cannot be taken to be proof of cruel acts committed by the appellant for the purpose of holding him guilty under Section 498-A, IPC. 18. For taking this view, we are supported by the decision of this Court in Inderpal v. State of M.P. In this case, Inderpal was charged and tried for the offence under Section 306, IPC, and convicted by the trial court for the said offence of abetment of suicide. In the appeal filed by Inderpal, the High Court found that the offence under Section 306 IPC, was not made out as it could not be held that death of the deceased was due to commission of suicide, but the High Court held the appellant guilty of the offence under Section 498-A, IPC. In the appeal filed by Inderpal, the High Court found that the offence under Section 306 IPC, was not made out as it could not be held that death of the deceased was due to commission of suicide, but the High Court held the appellant guilty of the offence under Section 498-A, IPC. This finding of the High Court was based on the evidence of the father, mother, sister and another relative of the deceased who deposed on the basis of inter alia the two letters (Exhibits P-7 and P-8) written by the deceased Damyanti that Inderpal, her husband, had subjected her to beating. This Court found that apart from the statement attributed to the deceased, none of the witnesses had spoken of anything which they had seen directly and the question that this Court had to decide was whether the statement attributed to the deceased could be used as evidence including the contents of Exts.P-7 and P-8 and this Court held that the contents of Exts. P-7 and P-8 written by the deceased could not be treated as proof of the acts of cruelty by Inderpal for the purpose of the offence under Section 498-A IPC. The reasons given by this Court in paragraph 7 of the judgment as reported in the SCC are as follows (Inderpal case, SCC p. 739): “7. Unless the statement of a dead person would fall within the purview of Section 32(1) of the Evidence Act there is no other provision under which the same can be admitted in evidence. In order to make the statement of a dead person admissible in law (written or verbal) the statement must be as to the cause of her death or as to any of the circumstance of the transactions which resulted in her death, in cases in which the cause of death comes into question. By no stretch of imagination can the statements of Damyanti contained in Exhibit P-7 or Exhibit P-8 and those quoted by the witnesses be connected with any circumstance of the transaction which resulted in her death. By no stretch of imagination can the statements of Damyanti contained in Exhibit P-7 or Exhibit P-8 and those quoted by the witnesses be connected with any circumstance of the transaction which resulted in her death. Even that apart, when we are dealing with an offence under Section 498-A IPC disjuncted from the offence under Section 306 IPC the question of her death is not an issue for consideration and on that premise also Section 32(1) of the Evidence Act will stand at bay so far as these materials are concerned.” 7. In the light of the submission of the learned Counsel Shri S.U. Nemade, I have closely scrutinized the evidence on record, and having done so, I find that the submission is well founded. 8. The learned Sessions Judge, having acquitted the accused of offence punishable under Section 304-B of the IPC, was dealing only with the offence punishable under Section 498-A of the IPC. The cause of death or the circumstances of the transaction which resulted in death, was not an issue qua offence punishable under Section 498-A of the IPC. The evidence of P.W.1 Shalik, P.W.2 Deokabai and P.W.3 Mohan, to the extent the evidence is on the basis of what is narrated by the deceased, was clearly hearsay and not admissible under Section 32(1) of the Indian Evidence Act since the cause of death was not in issue in view of the acquittal under Section 304-B of the IPC. 9. The alternate submission of the learned Counsel Shri S.U. Nemade, learned Counsel is, even if it is assumed arguendo that the evidence is admissible, the prosecution has failed to establish offence punishable under Section 498-A of the IPC. 10. It is too well settled, to warrant a lengthy discussion, that the cruelty which is statutorily defined for the purpose of Section 498-A of IPC is more serious and grave in degree than the cruelty which may constitute a matrimonial offence or which may furnish a ground for relief in matrimonial proceedings. The willful conduct which is envisaged in Explanation (a) to Section 498-A of the IPC brings to the fore the legislative intent that the ill-treatment or harassment must be intentional and at any rate the willful conduct must be persistent, continuous and must satisfy the proximity test. The willful conduct which is envisaged in Explanation (a) to Section 498-A of the IPC brings to the fore the legislative intent that the ill-treatment or harassment must be intentional and at any rate the willful conduct must be persistent, continuous and must satisfy the proximity test. The willful conduct must be 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. Sub-section (b) of Section 498-A of the IPC takes within its sweep harassment or ill-treatment which is calculated to coerce the woman or her family members to satisfy an unlawful demand. 11. If the evidence on record is considered on the anvil of the settled legal position, I am not persuaded to hold that the prosecution has established cruelty beyond reasonable doubt. 12. P.W.1 Shalik, the brother of the deceased Varsha, lodged a written report on 01-8-2000. It is extracted in the cross-examination of P.W.3 Mohan that he is the scribe of the report. The report is, as a fact, signed by P.W.3 Mohan as the scribe. The gist of the oral report is that the accused asked the deceased Varsha to bring Rs.2,000/- from her parental home and that Varsha narrated that she was harassed and ill treated on the issue of dowry. The examination-in-chief of P.W.1 Shalik would reveal that the entire evidence is based on what is narrated by Varsha to P.W.1. Even if the evidence is accepted at face value, P.W.1 states that Varsha asked for Rs.2,000/- from P.W.1 for construction of the house. P.W.1 states that he paid Rs.1,000/- to Varsha and then she went home. The next assertion is that after a month Varsha asked for Rs.500/-and conveyed that the said amount is demanded by accused 1. According to P.W.1, he narrated the demand to his mother who paid Rs.250/- to Varsha. The other grievance narrated to P.W.1 is that Varsha was required to fetch water from a distance of 1 km. and that she was beaten and harassed. In the cross-examination, it is brought on record that the statement that Rs.2,000/- was demanded by accused 1 as dowry, is an omission, the contradiction vis-a-vis the statement is brought on record in so far as the amount of the demand. and that she was beaten and harassed. In the cross-examination, it is brought on record that the statement that Rs.2,000/- was demanded by accused 1 as dowry, is an omission, the contradiction vis-a-vis the statement is brought on record in so far as the amount of the demand. What is stated to the police is that Rs.1,000/- was demanded in contradiction with the deposition that Rs.2,000/- was demanded by accused 1. The witness denies the suggestion that since the accused were poor, Varsha was unhappy. P.W.2 Deokabai, the mother of the deceased, has again deposed on the basis of what is narrated to her by Varsha. Her deposition is marred by significant omissions which partake the character of contradictions. The omissions are duly proved in the evidence of P.W.4 Investigating Officer. Illustratively, it is proved that P.W.2 stated before the police that Varsha did not have any grievance when she visited her parental home for the first time. The statement that the accused demanded Rs.2,000/- as dowry amount, is again an omission which is duly proved. That statement that P.W.2 paid Rs.1,000/- as she did not have enough amount, is an omission. The statement that she pacified Varsha saying that after a child is born everything would be good, is an omission. The incident on the occasion of Akhadi, when Varsha wept and conveyed to P.W.2 that she was asked by accused 1 to bring Rs.2,000/- or else is an omission. The evidence of P.W.1 Shalik and P.W.2 Deokabai, apart from the fact that the evidence is based only on what is narrated by the deceased Varsha, is even otherwise too sketchy and bereft of particulars to come to a conclusion that the deceased Varsha was subjected to ill-treatment or harassment. It is well settled, that a demand per se, unless the demand is accompanied by harassment or ill-treatment, would not constitute cruelty within the meaning of Section 498-A of the IPC. The only other witness who is examined to prove cruelty is P.W.3 Mohan, who is the maternal uncle of Varsha and at whose house Varsha resided till she married accused Bansi. P.W.3 Mohan does state that after one month of the marriage, he visited Varsha's matrimonial house and that the accused told him that less dowry was paid in the marriage and that Rs.2,000/- be paid for construction of house immediately. P.W.3 Mohan does state that after one month of the marriage, he visited Varsha's matrimonial house and that the accused told him that less dowry was paid in the marriage and that Rs.2,000/- be paid for construction of house immediately. P.W.3 claims that he paid Rs.2,000/- to accused Bansi on 02-7-2000. The payment of Rs.1,000/- was made to accused Bansi on 04-7-2000 since he visited P.W.3 to escort Varsha back to her matrimonial house, is the deposition. 13. The statement that Rs.2,000/- was demanded when P.W.3 visited the accused after one month of the marriage, is a proved omission. Even otherwise, the evidence of P.W.1 Shalik, P.W.2 Deokabai and P.W.3 Mohan is too consistent to be reconciled. The common thread is demand for Rs.2,000/- for construction of house. Apart from the fact, that there is no cogent evidence on record to suggest that the demand was accompanied by harassment or ill-treatment, the witnesses speak in different voices on the demand. While P.W.1 Shalik claims that the amount was demanded from him and he did, as a fact, make a payment of Rs.1,000/- to accused 1, the version of P.W.3 was that the amount of Rs.2,000/- for construction of house was made to him and it was he who satisfied the demand in two installments on 02-7-2000 and 04-7-2000. 14. It would be extremely hazardous to permit the conviction to rest on the evidence on record. The judgment and order impugned is unsustainable in law and is set aside. 15. The accused are acquitted of offence punishable under Section 498-A read with Section 34 of the IPC. 16. The bail bonds of the accused shall stand discharged. 17. Fine paid by the accused, if any, shall be refunded to them. 18. The appeal is allowed.