State vs Shivamurthayya Hiremath and Others <BR> Mahadevaiah Hiremath Vs Gurubai Urf Bhagirathi and Others

Aravind Kumar, J.—The appeal filed by the State and revision by the complainant has arisen on account of death of a young lady aged 22 years whose life got extinguished from this world. Criminal Appeal No. 593/2006 is filed by the State challenging the order of acquittal dated 23.12.2005 on the file of the Fast Track Court - II, Bijapur, whereunder the accused 1 to 5 are acquitted for the offences punishable under Sections 304-B and 498-A of IPC r/w. Section 34 of IPC and Sections 3, 4 and 6 of Dowry Prohibition Act.

The Criminal Revision Petition No. 528/2006 is filed by the complainant challenging the order of acquittal referred to hereinabove.

The facts in respect of both the appeal and the revision petition being one and the same they are enumerated herein below:

The case of the prosecution is that, on 30.8.2004 at about 6.00 p.m. in the kitchen room of the house of accused No. 1. the accused persons in furtherance of their common intention caused the death of Smt.Shaila by subjecting her to cruelty, both physically and mentally and coercing her to bring balance dowry amount and it was alleged by the prosecution, the said act was such a rash and negligent act not amounting to culpable homicide and as such the accused persons committed an offence punishable u/s 301-B r/w. Section 34 of IPC.

It was also the case of the prosecution that the marriage of the deceased Shaila took place on 29.12.2002 and till 30.8.2004 the accused persons in furtherance of their common intention, subjected Smt. Shaila to cruelty by saying that she has not given birth to a child and that if A3 had married another lady, there was likelihood of the said lady bringing more dowry and thereby she was subjected to physical and mental ill-treatment and she was coerced to bring balance dowry amount and unable to bear the same, she committed suicide. As such, the accused committed an offence punishable u/s 498-A r/w. 34 of IPC.

It was also the case of the prosecution that after 29.12.2002 i.e., date of marriage till 29.8.2004 the accused Nos. 1 to 3 demanded the deceased for balance dowry of Rs. 10,000/- in cash and 2 1/2 tolas gold, one watch & Rs. 5,000/- towards cloth expenditure and had made further demand and since the deceased was unable to bring the balance dowry within the stipulated time she was being subjected to mental harassment and thus, the accused persons committed the offences punishable under Sections 3, 4 and 6 of the Dowry Prohibition Act.

The prosecution in support of its case examined PWs. 1 to 15 and got marked exhibits P1 to P26. The accused got marked exhibits D1 and D2 and on behalf of the prosecution Mos. 1 to 5 were marked. The Sessions Court after recording 313 statement of the accused persons and on hearing the oral arguments, by its judgment dated 23.12.2005 acquitted the accused persons u/s 235(2) of Cr.P.C. It is this judgment which is now assailed by the State as well as the complainant i.e., father of the deceased in the appeal and revision respectively.

The trial court after hearing the parties framed the following points for its consideration:

(i) Whether prosecution proves that on 30.08.2004 at about 6.00 p.m. in the kitchen room of the house of Shivamurthayya S/o.Irayya Hiremath and said house is facing towards north located nearby on the west to Agasi of Village Masuti, Tq: B.Bagewadi Dist: Bijapur, A1 to A3 in furtherance of their common intention caused the death of Shaila W/o.Gurupadayya Hiremath by doing an act namely subjecting said Shaila to cruelty both physical and mental and coercing her to bring balance dowry amount and said act was such a rash and negligent act, not amounting to culpable homicide, and thereby committed an offence punishable u/S. 304 (B) r/w. Sec. 34 of the IPC?

(ii) Whether prosecution proves that, marriage taken place on 29.12.2002 and after said marriage till 29.8.2004 in the house of Shivamurthayya Irayya Hiremath, facing towards north located nearby and on the west to Agasi of Village Masuti, Tq: B.Bagewadi Dist: Bijapur, Al being father-in-law. A2 being mother-in-law, A3 being younger sister of A-3, and A-4 being sister of A-3 and A-5 being aunt of the A-3/Gurupadayya Hiremath and as such related to said Shaila. in furtherance of their common intention, accused Nos. 1 to 5 have subjected said. Shaila to cruelty by saying that she has not given birth to child and if A-3 was married with another lady there was likelihood of getting more dowry and thereby giving physical and mental ill treatment and coercing her to bring balance dowry amount, and that accused Nos. 1 to 5 thereby committed an offence punishable u/s. 498(A) r/w. 34 of the I.P.C.?

(iii) Whether prosecution proves that after 29.12.2002 and till 29.08.2004 accused Nos. 1 to 3 made demand for dowry balance of Rs. 10,000./- towards dowry amount settled at Rs. 55,000/- and having received said amount of Rs. 45,00/- in each, 2 1/2 tolas gold, one watch and Rs. 5.000/- amount towards cloth expenditure made further demand to bring dowry amount of Rs. 10,000/- which is in balance and after the death of said Shaila accused Nos. 1 to 3 have not returned the said received dowry amount within thereby committed offences punishable u/S. 3, 4 & 6 of the Dowry Prohibition Act?

(iv) What order?

After considering the evidence on record and arguments of the learned defence counsel and learned Public Prosecutor the learned Sessions Judge held point Nos. 1 to 3 in the negative and acquitted the accused persons. The said judgment is called in question by the State in the appeal and by the complainant in the revision petition.

We have heard learned Addl. SPP Smt.Anuradha Desai for the State and Sri.Ashok R.Kalyanshetty appearing for the revision petitioner and Sri.M.B.Kasar, appearing for the respondents - accused persons.

It is the contention of the State that the Sessions Court had acquitted the accused contrary to evidence and materials on record, the evidence of the complainant - PW1 and the evidence of the mother - PW2 as also the independent witness namely PW3''s evidence who had attended the marriage had been ignored and it had not been considered in proper perspective and the evidence having not been properly appreciated by the trial court, the judgment is required to be set aside by the appellate court. It is the further contention of the State that when the complaint clearly discloses that there was a demand for dowry and other articles from the parents of the deceased after the marriage and since the deceased was subjected to ill-treatment and harassment both physical and mental by the accused persons, the court below ought not to have disbelieved the prosecution case and seeks for reversal of the judgment of the court below. It is also contended by the prosecution that the suspicious circumstances under which dead-body was found hanging in the house of the accused and the evidence with regard to the demand and acceptance of dowry coupled with further demand for bringing balance dowry would clearly show that the death had occurred on account of the demand for dowry and indisputably the death having taken place within two years from the date of marriage, the court below ought not to have acquitted the accused on the ground that the prosecution has failed to establish its case and bring home the guilt of the accused.

In support of the contention, the complainant in his revision petition has contended that there was sufficient evidence on record to accept that the ingredients of Section 304-B of IPC was fully attracted, particularly, the petitioner''s daughter having died other than under normal circumstances within 7 years from the date of marriage preceded by cruelty/harassment by the accused in connection with demand for dowry. In this regard, Section 113-B of the Evidence Act has been pressed into service. It is also the case of the revision petitioner that both the parents PW1 and 2 have consistently maintained their stand that on the day of the death of Shaila she had complained to her parents over phone about the cruelty and harassment meted out to her by the accused and had requested her parents to take her to the parental house and on the same day she having committed suicide the said evidence of PWs. 1 and 2 having stood the cross examination ought not to have been disbelieved.

It is also the contention of the revision petitioner that exhibit D2 (death note) is not proved to be in the hand-writing of the deceased particularly PWs. 1 and 2 having denied the said handwriting in their evidence and thus it could not have been conclusively held that it was in the hand-writing of the deceased. It is also the contention of the revision petitioner that there was sufficient material on record to hold that ingredients of Section 498-A of IPC are proved particularly in the backdrop of the accused persons conducting themselves in such a manner that their wilful conduct demonstrates that deceased was driven to commit suicide, particularly, unable to bear harassment and coercion and also unable to meet unlawful demand for dowry. It is contended that demand for balance dowry having not met with positive result, had driven her to commit suicide and hence it is to be concluded that the evidence of PWs. 1, 3 and 5 substantially prove such harassment and the prosecution has proved this fact beyond reasonable doubt.

The revision petitioner has also contended that exhibit P1 which is Yadi speaks of the dowry of Rs. 55.000/- paid at the time of marriage coupled with other evidence and thus the offence under Sections 3, 4 and 6 of the Dowry Prohibition Act have been proved and thus the acquittal was not proper. It is also contended that the accused persons had common intention to commit the crime and in furtherance of such common intention and as such Section 34 of IPC is attracted as also there is no explanation forthcoming from Section 313 statement with regard to the circumstances leading to such death in their house by their daughter-in-law within two years of the date of marriage and on this ground they assailed the judgment of the Sessions Court and seeks for reversal of the same and for conviction of the accused persons.

Per contra, learned counsel Sri.M.B.Kasar, appearing for the accused persons would contend that order of the Court below in acquitting is based on cogent reasons and on proper appreciation of evidence. He would also contend that learned Sessions Court on consideration of evidence on record has come to conclusion that prosecution has been unable to prove its case beyond reasonable doubt and also the accused persons have discharged their onus in proving their innocence particularly in view of Ex.D2 (death note) of deceased and the Sessions Court has rightly rejected the prosecution theory and submits that it does not call for interference at the hands of the appellate Court and prays for dismissal of both State appeal and revision petition of complainant.

The questions that arise for consideration are:-

(i) Whether the prosecution has proved that the accused persons have committed the offence as alleged by the prosecution?

(ii) Whether the judgment dated 23.12.2005 passed in SC No. 36/2005 acquitting the accused persons is erroneous or requires to be set aside?

(iii) Whether the revision petitioner proves that the judgment passed in S.C. No. 36/2005 requires to be revised?

Having heard learned counsel for the parties and having given our anxious consideration to the submissions made at the Bar, it would be necessary to consider and re-appreciate the evidence let in by the prosecution as well as the defence set up by the accused persons to answer the points for determination formulated hereinabove.

The undisputed facts are that on 29.12.2002 the marriage of Shaila with accused No. 3 have taken place and said Shaila expired on 30.8.2004 between 10.00 a.m. to 8.00 p.m. The father of the deceased who is the revision petitioner had lodged a complaint as per exhibit P2 on 30.8.2004 stating that his second daughter Smt.Shaila had been given in marriage to accused No. 3 about 1 year 8 months back and they were in cordial terms for one year and thereafterwards A3 and his housemates namely accused persons started ill treating his daughter and demanded dowry namely alleging that the agreed dowry to be given at the time of marriage was not paid fully and the accused persons sought for balance dowry. Since the demand was not met by complainant, his daughter was being ill treated both physically and mentally.

It is stated by PW1 that on 30.8.2004 at about 11.00 a.m. a call was received from his daughter and since he was not at the residence the phone was received by his wife and his daughter complained to his wife (PW2) wherein the daughter informed that she was being ill treated by her in-laws and had requested PW2 to send PW1 to take her back to the paternal home as she was unable to bear the mental and physical torture meted out to her. It is stated by PW1 that on returning back to home after hearing the news from his wife he had immediately called her back and informed her that he would be coming the next day along with Gurupada Charanthimatha and others and till then he had requested her to have patience.

It is further stated by him in his evidence that on the same day at 8.00 p.m. some one called from Masuti village where his daughter is residing, informing them that his daughter had died. It is stated by him that CW8 - Bheemappa Haranatti had received the said phone call and it was CW8 who informed them about the death of his daughter and immediately he contacted his daughter''s house which was received by Basappa Bilagi who informed that his daughter had committed suicide by hanging in the kitchen. It is in the evidence of PW1 that immediately thereafterwards he along with his wife and sons and also other elders of the village proceeded to Masuti village and found that their daughter had committed suicide by hanging and he had lodged a police complaint in this regard as per exhibit P2. He has also stated that on registering of the complaint the jurisdictional police have conducted the enquiry thereafterwards the COD has also recorded his statement and in his evidence Mos. 1 to 3 have been marked.

In the cross examination of PW1 it is admitted that he had not spoken to his daughter when she had called on 30.8.2004 at 11.00 a.m. It is admitted by PW1 that his daughter had come to the paternal home prior to her death about four months and had informed him that in-laws as well as her husband had been demanding the balance amount of the dowry i.e., Rs. 10,000/-. However, this fact admittedly has not been stated by PW1 either in the statement made before the police at the time of the investigation or as per exhibit P11 or in the examination-in-chief. It is also admitted by P.W. 1 complainant that "Yadi" (Ex.P1) was drawn as per custom prevalent in their community certain articles were given to son-in-law and also admits that regarding balance amount nothing is written in Ex.P1. The statements given before COD police have been marked as Ex.D1 wherein it is admitted by him that his daughter might have written the "death note". He also admits that on the day of marriage the accused persons did not demand for the alleged balance dowry. One another crucial aspect required to be noticed by us that P.W.1 had admitted that in the complaint (Ex.P1) lodged before the police, he has not stated that there was balance of Rs. 10,000/- payable to accused persons towards dowry and also admits that he has not stated about any ill-treatment given by her in-laws when she came to the paternal home for Ugadi festival. If really there was agreement for payment of balance dowry and ill-treatment to deceased, in this regard, P.W.1 would not have shirked from stating this before police at the first available opportunity. This lacuna casts a cloud on the version of P.W.I which cannot be taken at face-value. Even the corroborative evidence does not inspire confidence to us to accept the version of P.W.1.

PW2 the mother of the deceased who has also alleged that her daughter died on account of the mental and physical torture meted out to her, has virtually repeated what PW1 has stated in the examination-in-chief. In the cross examination of this witness namely PW2 the said witness admits that death note (exhibit D2) had been taken to custody by the police at the time of drawing the panchnama in her presence. She also states that the police authorities read the contents of Ex.D2 in her presence as well as others who were present at the time of drawing the panchanama. Prime factor which requires to be considered by us is that PW2 being the mother is the person with whom the deceased would have confided all her problems and in this regard having narrated that her son-in-law had come to their house along with their daughter and admits that when she came for Nagarapanchami festival she returned back to her matrimonial home happily with enthusiasm. The said evidence reads as follows:

It is to be noticed that she also admits that her son-in-law who is A3 is a respectable and reputed doctor in the Masuti village and the family of the accused is a respectable family. She further admits in the cross examination, on 30.8.2004, A1 i.e., son-in-law had gone his clinic at 8.00 a.m. and the routine of her son-in-law was to leave house at 8.00 a.m. and return at 10.00 p.m. She further states in the cross examination that on the said date i.e., on 30.8.2004 A2 i.e., mother-in-law was not in her residence and had gone to the Gurubai Mutt to offer her prayers and she was not in the house and in so far as A1 i.e., father, she admits that he had gone to the school where he teaches. The relevant admission is as follows:-

It has come in the evidence of PW2 that not only the husband but also the in-laws of the deceased were taking care of the deceased with all love and affection. In fact, this admission clearly establishes that there was no strained relationship or ill will between the husband and wife on the one hand and the in-laws and the daughter-in-law on the other hand.

PW7 is the witness who has been examined by the prosecution to drive home the guilt against accused and to establish the demand for dowry. Since this witness had participated in the pre-marriage discussions and was a signatory by way of attesting witness to the Yadi i.e., exhibit P1, his signature is identified as exhibit P1(c). In the examination-in-chief itself he admits that at the time of drawing up of the Yadi, there was neither any demand made for dowry nor the accused persons sought for payment of any amount. He also admits that on 30.8.2004 when the police authorities drew the panchnama the death note (Ex.D2) have been left by the deceased whereunder she has stated that no one was responsible for her death and it was read over in his presence and he has identified his signature in the panchanama which is at exhibit P10(a). The said witness in the cross examination has categorically asserted that the contents of the chit (exhibit D2) was read over by the CPI in the presence of all including himself. He further states that he has identified the hand-writing of the deceased in view of the fact that he was sending his grand children for tuition to the house of the deceased and she was teaching them and on account of the said tuition being given to the grand children she used to write on the slate of the children and as such he has identified the handwriting of the deceased. He has identified the handwriting in exhibit D2 and it is at this stage of the cross examination by the accused, the prosecution has made an attempt to treat this evidence as hostile and evidence has been let in by way of examination-in-chief. There is nothing worthwhile which has been turned out in this cross examination to discord either the examination-in-chief or the cross-examination of this witness. Hence, same is required to be accepted by us and is accordingly accepted.

Now coming to the evidence of PW3, who is the person who is said to have been received the phone call from Masuti Village. He has stated that at about 8.00 p.m. on 30.8.2004 a telephonic call was received informing him about the death of Shaila at Masuti village and immediately he has informed PW1 and immediately thereafterwards PW1 telephoned to the house of the deceased and after getting confirmation about her death they proceeded to the Masuti village at about 11.30 p.m. on the same day. In the cross examination the said witness stated that immediately on reaching Masuti village and after seeing the deadbody they neither informed Masalpur O.P. police or Kolar police station over phone about the death of Smt.Shaila. He admits in the cross examination that it is the common practice in the community of PW1 to extend certain gifts to the son-in-law at the time of marriage and also exhibit P1 - Yadi was drawn in the presence of elders of both the families as per custom prevailing in the community. In exhibit P1 it is admitted by the said witness that the contents of the said Yadi is correct. Though in the cross examination the said witness states that he has informed before the police that there was demand by accused persons for payment of balance amount of Rs. 10,000/- in dowry, it is to be noticed by us that in exhibit P1 there is no whisper for the balance amount of the dowry. Thus, it can be easily inferred that the complainants themselves have made attempts to improve their case stage by stage and step by step.

The Tahsildar who conducted the inquest has been examined as PW4.

PW5 Chandra Shekhar is examined on behalf of the prosecution as an independent witness to drive home the point that there was demand for balance amount of Rs. 10,000/- agreed to be paid as dowry. As observed by us when the complaint itself is silent with regard to the demand for balance Rs. 10,000/- the credibility of this witness cannot be taken as sacrosant particularly in the gamut of consideration of entire evidence on record. It has come in the evidence of PW2 i.e., mother that her daughter and son-in-law had come on Nagarapanchami day and they returned back to the matrimonial home happily. If the demand for dowry as alleged by this independent witness PW5 or as alleged by PW1 was there, definitely, the deceased would not have kept silent and she would have confided the same to her mother. As we have no option but to accept the evidence of the mother - PW2 as best witness and in view of the said acceptance the evidence of this witness namely PW5 requires to be brushed aside and accordingly we do so.

The other witness PW6 is a panch witness He has attested exhibit P3. The said witness has turned hostile. Even after considering the said witness as hostile, no admission worthwhile to drive home guilt against the accused person have been elicited in the evidence of this witness.

The evidence of PW7 has already been discussed supra and now coming to the evidence of PW8 i.e., Ummawa we find that she has turned hostile and she states that she was not aware of any demand for dowry and she only came to know about this fact after learning from some of the villagers who spoke about this fact and hence it is only a "hearsay evidence" which cannot be accepted. Accordingly, the same is rejected.

In so far as PW9 is concerned, he is a person who is residing nearby the house of the accused persons who has turned hostile and has denied of having given any statement before the police. Even this witness has denied that he is signatory to the statement - exhibit P12. There is nothing worthwhile which requires to be considered in so far as this witness is concerned.

PW10 is the freelance photographer who has taken the photographs of the scene of occurrence including the deceased Smt.Shaila''s photograph and there has been no cross examination of this witness.

PW11 is the police constable who has received the complaint and on 31.8.2004 between 11.30 a.m. though the defence has made an attempt to rely upon the evidence of this witness to contend that the delay in filing the complaint itself disproves the claim of the prosecution, we are unable to agree to accept such a contention in as much as this witness has categorically stated that that there was lack of transport facilities available from Masuti village to the police station. Hence, the said contention cannot be accepted.

PW12 is the doctor who has conducted the postmortem of the deceased. She has categorically stated that there were no external injuries noted in the postmortem and ligature mark was antemortem. The said doctor has concluded by giving opinion that death was due to asphyxia as a result of hanging. In the cross examination it has been stated that there were no external injuries on the body of the deceased. The answers given by her before the Dowry Cell (ADC) COD Bangalore has been marked as exhibit P24 and her signature has been marked as exhibit P23.

PW13 is the police sub inspector of Beerur police station who is an officer who has informed the higher authorities about the complaint being lodged and also informing the Tahsildar requesting for inquest.

PW14 is Dy.S.P who has stated that he has examined the case records and it is recorded evidence and statement of CW13, CW20, CW15, CW16, CW17, CW22 and CW8. He admits in the cross examination that he has not recorded the statement of either PW1, PW2 or PW4 on the ground that there was no necessity.

PW15 is the Dy.SP of the Anti Dowry Cell (COD) Bangalore who has taken over the investigation from PW14 from 10.10.204 onwards. He states that he had visited the scene of occurrence and recorded the statement of CWs. 18, 23, 24. He also states that on 12.10.2004 he has visited the village of the deceased''s father and recorded statement of PWs. 1 and 2, CWs. 7, 11 and 13. This witness in the cross examination has stated that the death note (Ex.D2) found at the scene of occurrence which has been marked by the defence as exhibit D2 was not sent for forensic examination to ascertain the genuineness and correctness of the hand-writing of the deceased on the ground that it was not necessary. Though he has denied that the production of the original of Ex.D2 would be harmful to the prosecution case, the same was not produced. He states that by oversight it has remained in the office of the COD and as such it was not produced before the court. It is in the cross examination of this witness the photocopy of Ex.D2, which was furnished to the accused persons along with the charge sheet was confronted to this witness who identified and admitted the same and accordingly it came to be marked as exhibit D2. He admits in the cross examination that when PW1 gave statement before him and PW1 did not say or complain that the accused persons had demanded balance dowry of Rs. 10,000/-.

In this regard, it would be useful for us to extract Sections 498-A, 304-B of IPC and Sections 113A and 113B of the Indian Evidence Act respectively which reads as follows:

498A. Husband or relative of husband of a woman subjecting her to cruelly: 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 wilful 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 security or is n account of failure by her or any person related to her to meet such demand.

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 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.

113A. 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.

113B. 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 son before her death such woman has 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.

In so far as Section 498-A is concerned, the ingredients which requires to be established is noted by us hereinabove, the evidence of PW2 clearly establishes the fact that when the daughter had come to their house for celebrating Nagarapanchami, there was no whisper or discussion with regard to any cruelty meted out by the accused persons. Further the said witness namely mother who has to be considered as the best witness to appreciate the case of the prosecution, has categorically and in unequivocal terms stated that after celebrating the festival the daughter and son-in-law returned to their matrimonial home happily and enthusiastically. The only interference that could be drawn by us is that there was neither cruelty nor any coercion on the part of accused persons much less demand for dowry so as to hold that ingredients of Section 498A are attracted. Hence, we hold that the prosecution has been unable to prove the guilt of the accused and even unable to discharge its initial burden for raising presumption to convict the accused u/s 498-A. Hence, we confirm the findings of the Sessions Court of acquitting the accused for the offence alleged u/s 498-A.

The revision petitioner has pressed into service Section 113-A and 113-B of Evidence Act which have been extracted by us supra to contend that a presumption has to be drawn regarding dowry death. In order to appreciate this contention what is to be seen is that whether the suicide has been committed by Shaila allegedly on account of she having subjected to cruelty and a presumption has to be drawn as envisaged u/s 113A. The words used in the said Section is "having regard to all other circumstances of the case, that suicide had been abetted by her husband or by such relative of her husband". Thus, a presumption has to be drawn to establish the nexus of death to cruelty.

However, in the instant case, as referred to by us supra, the prosecution having been failed to establish that there was any cruelty meted to the deceased by any of the accused persons coupled with admission of PW2 that when the daughter and son-in-law returned to their matrimonial home happily, we are unable to draw the presumption in favour of prosecution and also other attendant circumstances disprove the fact that the presumption cannot be drawn in favour of the prosecution. So also Section 113B is pressed into service by the revision petitioner to contend that the complaint exhibit P1 coupled with the testimony of PWs. 1 and 2 are sufficient enough to presume that the death has occurred on account of the demand of dowry. We are afraid that such presumption can be drawn in the instant case in as much as the complainant himself i.e., PW1 has not only admitted in his evidence that he has not mentioned about the demand for balance dowry of Rs. 10,000/- in his complaint but also PW15 has admitted that no such statement was made by the complainant - PW1 when his statement was recorded as per Ex.D1 and it is not the case of the complainant himself that there was any demand for balance dowry as per complaint, presumption as required to be drawn under the Evidence Act. Section 113B cannot be brought to the forefront to support the case of the prosecution and this aspect having been minutely considered by the Sessions Court and rejected which we have again re-appreciated at micro-level in this appeal, we are unable to accede to the request of the revision petitioner to draw a presumption and hold that the prosecution had proved the guilt against the accused. Hence, this contention of the revision petitioner is also repelled by us as unacceptable. The complainant along with prosecution has been unable to prove that there was any demand for dowry by the accused persons as seen from the evidence on record particularly the complaint (Ex.P1) itself being silent on this aspect of P.W.7 a signatory to Yadi (P-1) marriage agreement categorically asserting that there was no demand for dowry.

For the reasons discussed hereinabove and on re-appreciation of the evidence on record we confirm the findings of the Sessions Court. Accordingly, we pass the following.

ORDER

Criminal Appeal No. 593/2006 as also revision petition No. 528/2006 are hereby dismissed. The judgment of the Fast Track Court-II Bijapur dated 23.12.2005 passed in S.C. No. 36/2005 are hereby confirmed.