IMPORTANT POINTS
Cruelty or harassment of the lady by her husband or his relative for or in connection with any demand for any property or valuable security as a demand for dowry or in connection therewith is common constituent of both sections 304B and 498A, IPC.
Cruelty contains in its expanse, apart from the conduct of the tormentor, the consequences precipitated thereby qua the lady subjected thereto.
In absence of proof of ingredients of section 304B and 498A, a person cannot be convicted by taking refuge only of the presumption u/s 113B.
Benefit of deficiency in proof would be available to the persons charged.

JUDGMENT

AMITAVA ROY, J.

The appellants, the in-laws of the deceased Saroj Bai, being aggrieved by the conversion of their acquittal into conviction by the High Court under Sections 498A and 304B of the Indian Penal Code (for short hereinafter referred to as the “Code”) seek defeasance of this verdict in the present appeal.

(2) Heard Mr. Siddhartha Dave, learned counsel for the appellants and Mr. Naveen Sharma, learned counsel for the respondent.

(3) The genesis of the prosecution case lies in the information lodged by appellant Baijnath, the elder brother of the appellant No.2, Shivraj, the father-in-law of the deceased. The information disclosed that on 09.06.1996 at about 8 p.m. the family had dinner together and after watching television, retired to the respective rooms for the night. The deceased was married to Rakesh, son of appellant No.2. According to the informant, in the next morning she was found dead, hanging from the fan by a ligature.

(4) On this information Merg No.20/1996 was registered with the Chanderi Police Station and on the completion of the investigation charge-sheet was laid against the appellants together with Rakesh, husband of the deceased and Prem Bai, wife of the appellant No.1 under Sections 302, 304B, 498A, 201 read with Section 34 of the Code. According to the prosecution, the investigation revealed that the husband of the deceased along with the appellants had been demanding dowry and in pursuit thereof had subjected the deceased to harassment and torture in the proximate past of the incident.

(5) At the trial, the learned Additional Sessions Judge concerned framed charges against the accused persons under Sections 304B and 498A of the Code, which were denied by the accused persons. Subsequent thereto Rakesh committed suicide on 09.06.1998 by consuming poison and therefore he was deleted from the array of the persons indicted.

(6) The prosecution at the trial examined 12 witnesses including the Investigating Officer and the Doctor who had performed the postmortem examination. The defence, after the recording of the statements of the appellants under Section 313 Cr.P.C., examined 4 witnesses.

(7) The Trial Court on an exhaustive assessment of the evidence adduced, acquitted the accused persons of the charges against which the respondent/State preferred appeal before the High Court. The impugned decision has been rendered thereby upturning the acquittal.

(8) The learned Trial Court while recording the admitted fact of marriage between the deceased and Rakesh and also that the incident had occurred in the matrimonial home of the wife within 7 years of the alliance, dismissed the evidence with regard to demand of motorcycle in dowry and the imputation of torture, cruelty and harassment as projected by the prosecution and thus exonerated the accused persons of the charges levelled holding that in the attendant materials on record, the statutory presumption as envisaged in Section 113B of the Evidence Act, 1892 (hereinafter referred to as the “Act, 1892”) was not available for invocation.

(9) The High Court however being of the opinion that the deceased had died an unnatural death in suspicious circumstances in her matrimonial home within 7 years of marriage and that the same was preceded by persistent demands for a motorcycle as dowry in marriage accompanied by cruelty, returned the finding of guilt against the appellants but exonerated Prem Bai, the wife of appellant No.1 i.e. Baijnath. It accepted the evidence adduced by the prosecution qua the charge of dowry demand, harassment and cruelty in connection therewith and applied the deeming prescription/statutory presumption contained in Section 304B of the Code and Section 113B of Act, 1892.

(10) The learned counsel for the appellants has in this backdrop insistently urged that the evidence in support of the charge of demand for a motorcycle as dowry in marriage by the husband and his family members being patently inadequate and unconvincing to furni