E. Vidyadharan v. State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 18[TH] DAY OF MAY 2022 / 28TH VAISAKHA, 1944 CRL.A NO. 1397 OF 2007 [AGAINST THE JUDGMENT DATED 26.07.2007 IN S.C.NO.773/2005 ON THE FILE OF THE COURT OF SESSIONS, KOZHIKODE DIVISION] ## APPELLANT/ACCUSED: E.VIDHYADHARAN S/O.DAMODHARAN, AGED 37, EDATHEDATH VEEDU, PANTHEERANKAVU, KOZHIKODE. BY ADVS. T.K.SANDEEP ARJUN SREEDHAR ARUN KRISHNA DHAN ALEX ABRAHAM ## RESPONDENT/COMPLAINANT: STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. BY ADV SRI. RANJIT GEORGE, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21.02.2022, THE COURT ON 18.05.2022 DELIVERED THE FOLLOWING: CRL.Appeal No.1397 /2007 2 ## **JUDGMENT** The appellant is the sole accused in S.C. 773/2005 on the file of the Sessions Court, Kozhikode. The aforesaid case arises from Crime No.97/1999 of Nallalam Police Station, which was registered against the appellant for the offences punishable under Sections 498A and 304B of the Indian Penal Code (IPC). 2. The prosecution case is as follows: The appellant married the deceased Sheeja on 28.3.1999 as per their religious rites. Thereafter, she resided along with the appellant till 30.6.1999 at his residence. It is alleged that, during the said period, the deceased was subjected to cruelty based on demand for dowry. On 30.6.1999, she was sent back to her house along with her mother and sister, as the family of the deceased could not hand over more gold ornaments or amounts as demanded by the appellant. Later, on 2.7.1999, because of the said reason, the deceased Sheeja committed suicide by jumping into the well situated in the courtyard of her maternal house. CRL.Appeal No.1397 /2007 3 3. Initially, the crime was registered as unnatural death, and later, the aforesaid offences were incorporated, and an investigation was conducted. Upon completing the investigation, a final report was submitted before the Judicial First Class Magistrate Court-V, Kozhikode. Upon being committed, the trial was conducted as S.C.No.773 /2005 by the Sessions Court, Kozhikode. 4. In support of the prosecution case, PWs.1 to 16 were examined, Exts.P1 to P18 were marked, and MOs.1 and 2 were identified. The contradictions in the statement of PWs.4 and 5 were marked as Exts.D1 and D2. After the closure of the prosecution evidence, the incriminating materials brought out during the trial were put to the accused, which he denied and pleaded innocence. After evaluating the materials available, the learned Sessions Judge concluded that the appellant is guilty of the offences alleged. Accordingly, the appellant was sentenced to undergo rigorous imprisonment for ten years under Section 304B of IPC, and he was further sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.25,000/- with a default sentence to undergo rigorous imprisonment for six months for the offence under Section 498A of the CRL.Appeal No.1397 /2007 4 IPC. This appeal is filed by the appellant challenging the aforesaid finding of conviction and consequential sentence. 5. Heard Sri. Arjun Sreedhar, the learned counsel appearing for the appellant and Sri. Ranjit George, the learned Public Prosecutor appearing for the State. 6. The learned counsel for the appellant contends that, the prosecution failed to establish the guilt of the appellant beyond reasonable doubt. It was pointed out that the evidence of the witnesses, particularly that of PW4 and PW5, who are the mother and sister of the deceased, respectively, could not have been relied upon by the learned Sessions Judge as the same is filled with full of inconsistencies and embellishments. Most of their evidence consists of incidents which were not spoken of when their statements were recorded by the police. It was also pointed out that the evidence of the other witnesses also cannot be relied upon as all of them are interested witnesses having close relationships with the deceased. According to the learned counsel, the ingredients for attracting the offences under Sections 498A and 304B are lacking in this case, in view of the fact that the materials available on record are not sufficient to establish the demand of dowry by the appellant. In such circumstances, the presumption under CRL.Appeal No.1397 /2007 5 Sections 113A and 113B of the Evidence Act cannot be pressed into service, and hence interference in the finding of the learned Sessions Judge is essential, contends the learned counsel. 7. On the other hand, the learned Public Prosecutor would oppose the aforesaid contentions. According to him, the evidence of PWs.1 to 5, 7 and 8 would conclusively prove the guilt of the accused. All the ingredients for attracting the offences mentioned above are clearly established from the evidence of the aforesaid witnesses. In such circumstances, it is a case where the presumption against the appellant as contemplated under Section 113B of the Evidence Act is attracted to this case. Hence, in the absence of any contra evidence rebutting the aforesaid presumption, the finding entered by the Sessions Court cannot be interfered with. Thus, the learned Public Prosecutor seeks for dismissal of the appeal. 8. On scanning through the evidence adduced by the prosecution as a whole, it can be seen that the crucial evidence is the depositions of PWs.1 to 5, 7 and 8. In this case, the F.I.R. was registered based on information submitted by PW1 who is a relative of the deceased. Exhibit P1(a) is the FIR, and the same was registered for the unnatural death of the deceased. From the perusal of the said CRL.Appeal No.1397 /2007 6 document, it is revealed that, on 2.7.1999, at about 11 a.m., the deceased jumped into the well, and thereafter, the local people, including PW1, who gathered there, have taken out the deceased from the well and took her to Medical College Hospital, Kozhikode where she was declared dead. It was mentioned in Ext.P1 F.I.S. that the deceased had committed suicide as she was disturbed due to the illtreatment of the husband and his relatives in her matrimonial house. 9. Subsequently, the Sub Inspector of Police, Nallalam, recorded the statement of the relatives of the deceased and submitted Ext.P12 report before the court incorporating the offences punishable under Sections 498A and 304B of the IPC. Thereafter, the investigation was handed over to the Assistant Commissioner, Kozhikode (South), who submitted the charge sheet after completion of the investigation. 10. PW10 is the Doctor who conducted the post-mortem of the deceased and Ext.P10 is the certificate thereof. PW10 deposed about the nature of injuries sustained and the condition of the body of the deceased. The opinion as to the cause of death was stated by PW10 as death due to drowning. However, it was mentioned that the final opinion is reserved pending the chemical examination report. From the aforesaid evidence, it is clear that the death was due to drowning, and CRL.Appeal No.1397 /2007 7 therefore, it is consistent with the case of the prosecution that the deceased had committed suicide by jumping into the well. The next question that arises in such circumstances is as to whether the suicide was on account of the ill-treatment on the part of the appellant based on the demand for dowry. 11. When the aforesaid question is considered, as mentioned above, the crucial evidence is that of the deposition of material witnesses, which I have already mentioned above. PW1, who is the first informant is the relative of the deceased. He stated that, after the marriage, the appellant used to ill-treat the deceased by complaining about the inadequacy of the gold ornaments given to her at the time of marriage. According to him, the appellant also demanded more gold ornaments or six cents of land, and he insisted that the deceased conveyed the same to her mother. PW1 further states that this information was passed on to him by the deceased herself on 30.6.1999 when she was brought to her parental house by PW4, the mother of the deceased. It is stated by him that, on that day, the appellant made a telephone call to the shop of one Chandran (PW8), and asked PW4 to reach the residence of the appellant. Accordingly, she along with PW5, Sheeba, the sister of the deceased, went to the residence of the appellant CRL.Appeal No.1397 /2007 8 and took her to their house. PW1 also mentioned about the ill-treatment of the deceased on the previous day as the deceased could find out letters written to the appellant by another woman named Sheeba, which was questioned by the deceased. On 1.7.1999, three friends of the appellant came to the residence of PW4 and requested the deceased to go to the house of the appellant. According to PW1, at the relevant time, he and certain other persons, including PW2 were there in the house of PW4, as requested by her. Later, the friends of the accused were sent back by PW4 and the other persons, stating that if the appellant wants to take the deceased, he himself has to come. Later, on the next day, she came to know about the incident of the suicide of the said Sheeja. Accordingly, the matter was informed to the Police and Ext.P1 was recorded. In cross-examination, he had stated that, at the time of the marriage, PW4 gave 15 sovereigns of gold to the deceased. It was also stated by him that at the time of marriage, the appellant or his family members did not ask for any gold. It was also stated to him that the deceased had informed him about an illicit relationship which the appellant was having with another woman. Even though a suggestion was put to him by the learned counsel for the appellant that CRL.Appeal No.1397 /2007 9 the death of the deceased was due to the consumption of kerosene by the deceased, the same was denied by PW1. 12. PW2 is the neighbour of the deceased. He gave evidence in tune with the evidence of PW1. In addition to that, it was also stated that, on 2.7.1999, he heard a cry from the residence of the deceased, and immediately he rushed to the spot to find that the people had gathered around the well in the courtyard of the house. He could see the deceased Sheeja in the well and immediately the people have taken her to the house and took her to the Medical College Hospital where she was declared dead. PW2 is also the signatory to Ext.P2 inquest report and he admitted the same. PW2 stated that, the deceased had mentioned about the ill-treatment of the appellant for demand for dowry, when he met her on 30.6.1999 at her residence. He also mentions about his presence in the residence of PW4 on 1.7.1999 when the friends of the appellant came to her residence to take the deceased back to the appellant. He narrates the incident on that day in the manner as deposed by PW1. 13. PW3 is the husband of the sister of the deceased. He stated that at the time of marriage, the family of the deceased gave 15 sovereigns of gold to her. According to him, the deceased used to say CRL.Appeal No.1397 /2007 10 that the appellant was having an illicit relationship with another woman. On 29.6.1999, the deceased was physically illtreated by the appellant. The next day, the appellant called PW4 over the phone and asked her to come to his house. Accordingly, PW4 along with PW5, went to the residence of the appellant. When they reached there, the appellant had stated to the deceased that, “you can go, even if you die I will not come”. After that, the deceased was brought to their house. He also mentions the incident on 1.7.1999 when the friends of the appellant came to the residence of PW4. On the next day, she committed suicide. He also stated about the demand made by the appellant for more gold or property. He also stated that his statement was recorded by the Tahsildar while preparing Ext.P2 inquest report. However, he admitted that, before the marriage, the appellant did not ask for any gold or amounts. According to him, the expenses for the marriage were borne by the appellant. A suggestion was put to him by the learned counsel for the appellant to the effect that the deceased was having an affair with the brother of PW3, and since PW5, the wife of PW3, objected to the same, the marriage with him could not be conducted. The said suggestion was denied by PW3. A further suggestion was made by the defence to the effect that at the time of CRL.Appeal No.1397 /2007 11 marriage, the ornaments worn by the deceased were that of PW5, and after the marriage, PW5 asked her to return the ornaments which caused great pain to the deceased, and it ultimately led her to the suicide. PW5 also denied the said suggestion. 14. PW4 is the mother of the deceased and one of the crucial witnesses for the prosecution. She stated that, at the time of marriage, the deceased was given 15 sovereigns of gold. The matrimonial life of the deceased was painful as the appellant was ill-treating the deceased by making a demand for six cents of property. The appellant used to manhandle the deceased after consuming alcohol. On 30.6.1999, the appellant made a telephone call to the shop of Ramachandran Nair, which is situated nearby and asked for her. The information regarding the phone call was passed on to her by one Suresh, and immediately he attended the phone. Thereupon the appellant informed that the deceased was not well and asked PW4 to come to his residence immediately. Accordingly, she, along with PW5, went to the residence of the appellant. When they reached there, the appellant was not there, and they could find that the mother, sister and sister-in-law of the appellant were scolding the deceased. According to PW4, they stated to the deceased that, only 15 sovereigns of gold were given by her CRL.Appeal No.1397 /2007 12 family, and they did not provide six cents of property. They also reminded her that the appellant asked her to leave the house. According to PW4, they even objected to the deceased from taking sarees by stating that the same is required for the woman whom the appellant intends to marry. When PW4 attempted to intervene, she was told to take her away from the house. They also conveyed about the manhandling of the deceased by the appellant on the previous night after consuming alcohol. PW4 also stated that, on the previous day, on reading the diary of the appellant, the deceased came to know that the appellant used to visit another lady. After some time, the brother of the appellant brought him to the house, and when PW4 asked him about this, he stated that, as she failed to give six cents of land, he does not want her daughter to be there. He even stated that she could hang herself, and he does not mind that. The deceased locked herself in a room on hearing this, and PW4 and PW5 forcibly opened the door to pacify her. According to PW4, at that point of time, another lady who is the mother of the woman with whom the appellant had an illicit relationship was also there. Later, the deceased was taken by PW4 and PW5 to her house. Next day, three of the friends of the appellant came to their residence and requested to take her to the house of the CRL.Appeal No.1397 /2007 13 appellant. But, she stated that if the appellant wanted her back, he should come personally. She also acknowledges the presence of PW1 and PW2 in her residence at the relevant time. On the next day, the deceased committed suicide by jumping into the well when PW4 had gone out to purchase sugar. During cross-examination, it was admitted by PW4 that, when they brought the deceased back to their house, the deceased was wearing a thali chain of 2 ½ sovereigns of gold, bangle of 1 sovereign and ear ring of ½ sovereign. She further admitted that, before the marriage, the appellant did not ask for any amount of gold. According to her, she did not state to the police that, on 28.3.1999 and 21.4.1999, the appellant assaulted the deceased by demanding gold. She reiterated that all the above statements were given to the police by her during the investigation of the case. Even though it was suggested by the learned counsel for the appellant to her that, as per the statement given by her to the Sub Inspector of Police, at the time of marriage, the deceased was given only six sovereigns of gold, she denied the same. She asserted that the suicide of the deceased was due to the illtreatment of the appellant based on the demand of dowry and also being disheartened on coming to know that the appellant was having an illicit affair with another lady, which came to light from Exts. P5 and P6 CRL.Appeal No.1397 /2007 14 letters, which she could recover from the diary of the appellant. Contradiction in the deposition of PW4 with her statement recorded under Section 161 of Cr.PC was marked as Ext.D1. As per the same, PW4 had stated that she came to know about the demand for dowry made by the appellant only on 30.6.1999. Before that, the deceased did not convey anything about any difficulties in her house. 15. PW5 is yet another crucial witness, who is none other than the sister of the deceased and daughter of PW4. Her evidence is perfectly in tune with the evidence of PW4 and she narrates the incident which occurred in the residence of the appellant on 30.6.1999, when she along with PW4, went there. During cross-examination, she was questioned about non-mentioning the incident that allegedly occurred on 30.6.1999 in the house of the appellant. The response of PW5 was to the effect that all those statements were made by her to the police during the investigation. 16. Another crucial witness is PW7, the neighbour of PW4 and the wife of PW2. Her evidence is also in tune with the evidence of PW2, and according to her, the deceased had conveyed to her about the illtreatment of the appellant. PW8 is the owner of the shop near to the residence of PW4, where the telephone call was made by the appellant CRL.Appeal No.1397 /2007 15 to call PW4. He mentions about the telephone call made by the appellant on 30.6.1999. 17. These are the crucial evidence relied on by the prosecution for establishing the offence alleged against the appellant. When the contents of the same are carefully scrutinized, it can be seen that, the direct knowledge of the illtreatment is mentioned by PW4 and PW5. The crucial evidence in this regard is the incident alleged to have occurred in the residence of the appellant on 30.6.1999, when PW4 and PW5 went there. Even though both the above witnesses specifically narrated certain incidents and exchange of words between them on one side and the appellant and his relatives on the other side. However crucial aspect to be noticed is that, it is not discernible from the records that such a statement was given by them to the police during the course of the investigation. There are indeed materials indicating that PW4 and PW5 went to the appellant's residence on 30.6.1999, consequent to the telephone call made by the appellant to the shop of PW8. However, the statements regarding the demand for gold and six cents of property were not seen made by the said witnesses when the police questioned them during the course of the investigation. The aforesaid aspect is evident from the depositions of PW14 and PW15. CRL.Appeal No.1397 /2007 16 18. PW14 is the Sub Inspector of Police who recorded the statement of PW4 and PW5, before he submitted a report before the court for incorporating the offences mentioned above. According to him, after submission of the aforesaid report, he made an application before the Sub Divisional Magistrate to transfer the case to the Judicial First Class Magistrate Court-1, Kozhikode. In his cross-examination, he stated that, while recording the statements of PW4 and PW5, they did not state anything regarding the exchange of words between the relatives of the appellant and the said witnesses when they reached the residence of the appellant on 30.6.1999. He also stated that none of the witnesses had mentioned anything about any demand of six cents of the property being made on 30.6.1999. He further stated that as per the statements given before him by the aforesaid witnesses, the quantity of gold given to the deceased at the time of marriage was only six sovereigns. He denied any statement being given to him by any of the witnesses to the effect that 15 sovereigns of gold were handed over at the time of marriage. 19. PW15 is the Assistant Commissioner of Police, Kozhikode (South), who had taken over the investigation from 8.7.1999 onwards. As part of the investigation, he had recorded the statements of CRL.Appeal No.1397 /2007 17 PWs.1,2,3,4,5 and 7. He had stated that, the statement of PWs.4 and 5 given before him was slightly different from those given by them before PW14. He admitted that, as per the statement of the said witnesses given before PW14, the quantity of gold given to the deceased at the time of marriage was six sovereigns. In contrast, the same was 15 sovereigns as per their statement before him. It was also stated that, as per the statements of the said witnesses, when the deceased committed suicide, she was wearing a thali chain, bangle and ear ring. However, the same was not there when the inquest was conducted. He also stated that none of the witnesses has stated that the appellant appropriated the gold ornaments given to the deceased. His further evidence regarding Exts.P5 and P6 letters alleged to have been written by one Sheeba to the appellant is that, the same were written before the marriage of the appellant with the deceased. According to him, even though PW15 inquired about the appellant with his neighbours, none of them had any bad opinion about him. 20. When the aforesaid evidence is carefully scrutinized, certain glaring inconsistencies and embellishments are seen. As mentioned above, the crucial evidence relied on by the prosecution is the depositions of PWs.4 and 5. The most material aspect pointing out the CRL.Appeal No.1397 /2007 18 allegation of demand of dowry by the appellant is the incident alleged to have occurred in the residence of the appellant on 30.6.1999, when PWs.4 and 5 went there. The specific statements of both the witnesses are that, when they reached the house of the appellant, they found the mother, sister and sister-in-law of the appellant scolding the deceased by highlighting the demand made by the appellant for gold and property. They also stated that certain verbal exchanges made at the instance of the appellant as well, related to such demand. However, it is evident from the depositions of PWs.14 and 15 that none of such statements was made when their statements were recorded as part of the investigation. They indeed referred to the incident of going into the appellant's residence to bring the deceased to the house of PW4. But, the instances of interference by the relatives of the appellant and the demands made by them were conspicuously absent in the earlier statements. Therefore, those are embellishments of substantial nature, which seriously impact the credibility of said witnesses. Another crucial discrepancy in the evidence of the aforesaid witnesses is relating to the quantity of gold given to the deceased at the time of the marriage. Even though, both of them had given statements to PW14 to the effect that the quantity of gold given at the time of marriage was six CRL.Appeal No.1397 /2007 19 sovereigns, when they gave statements to PW15, the quantity of the gold became 15 sovereigns. In my view, this is yet another serious discrepancy which affects the credibility of the aforesaid witnesses, as they could not offer a consistent case in respect of a matter which was crucial for the case. 21. Another important aspect is regarding the inconsistencies in the nature of the demand alleged to have been made by the appellant. In the evidence of PWs.4 and 5, they have stated that the appellant was ill-treating the deceased by making the demand immediately after the marriage, and the same was informed to them by the deceased herself. However, in Ext.D1 statement, which is the contradiction in the statement of PW4, it is clearly mentioned that she came to know about the ill-treatment of the deceased based on the demand of dowry only on 30.6.1999. This is yet another serious discrepancy. In addition to that, PW14 had stated that, in the statement given by PW4 before him, she stated that on 28.3.1999 and 21.4.1999, the appellant assaulted the deceased by making demands for gold and property and therefore, she left her matrimonial house and came to the house of PW4. However, in the evidence of PW4, she stated that she gave no such statement to PW14. When the aforesaid discrepancy is considered along with CRL.Appeal No.1397 /2007 20 Ext.D1 statement of PW4, it creates very serious doubt as to the veracity of the case projected by the prosecution through the aforesaid witnesses. Similarly, even though the evidence of PW5 with regard to the incident that occurred in the residence of the appellant is in tune with the evidence of PW4, it is discernible from the records that she gave no such statement before the police. Therefore, there are clear improvements in the depositions of the aforesaid witnesses and apparently, the same was made consciously to make out the allegations against the appellant herein. 22. When the materials regarding the initiation of the proceedings are carefully scrutinized, it could be seen that the proceedings started treating the incident as an unnatural death. It is true that, in Ext.P1 F.I. Statement, the ill-treatment of the deceased by the appellant is indicated. However, it was not stated therein that the illtreatment was based on demand for dowry. Later, when the case proceeded further, it also came to light that the appellant was having an illicit affair with another lady, viz. Sheeba, and on 29.6.1999, the deceased came into possession of Exts.P5 and P6 letters claimed to have been written by the said lady to the appellant. Therefore, one of the reasons which prompted the deceased to commit suicide was the CRL.Appeal No.1397 /2007 21 knowledge of the relationship above. Even in the final report, more emphasis is on the above mentioned relationship, even though demand for dowry was also projected as one of reasons. When all the above aspects are carefully examined, it can be seen that there is a clear improvement made by the witnesses at the time of trial about the allegation of demand of dowry. It is to be noted that almost all the witnesses had stated that before the marriage, no demand was made by the appellant for dowry. The crucial material relied on by the prosecution to prove the demand for dowry is the incident occurred on 30.6.1999 in the residence of the appellant. I have already found that the evidence regarding the same given by PWs.4 and 5 cannot be relied on. However, it is evident that, Exts.P5 and P6 letters were found by the deceased immediately before the said incident and the aforesaid letters do indicate certain relationship of the appellant with the said Sheeba. In such circumstances, the chances of the deceased getting disheartened due to the said knowledge, which ultimately leading her to commit suicide, cannot be ruled out. 23. One of the offences alleged against the appellant is under Section 304B IPC. To constitute the offence above, one of the essential ingredients is the demand for dowry. In this case, I have already CRL.Appeal No.1397 /2007 22 found that the crucial evidence of PWs.4 and 5 cannot be relied upon for the aforementioned reasons. Apart from the aforesaid evidence, the other materials are the depositions of PWs.1,2,3 and 7. However, it is evident from their depositions that they were not having any direct knowledge of the illtreatment above. According to them, they came to know about the same only when the deceased reported the same on 30.6.1999. In my view, the aforementioned evidence by itself is not safe to rely upon for basing an order of conviction of the appellant in this case, mainly because of the serious doubt as to the veracity of the version of similar nature given by PWs.4 and 5 who were having direct knowledge of the same. Moreover, the lack of consistent case regarding the quantity of the gold handed over to the deceased at the time of marriage is yet another aspect affecting the prosecution case. It is also a fact that, even according to the witnesses, at the time of the death, the deceased was wearing gold ornaments of 4 sovereigns, but when the inquest was conducted, there were no traces of the same. The suicide committed by the deceased was while she was in the residence of PW4, where the appellant did not have any access at the relevant time. Similarly, even though PWs.4 and 5 have stated that the appellant kept the remaining gold ornaments, it is seen that no such CRL.Appeal No.1397 /2007 23 statement is seen to have given by the aforesaid witnesses to the police. Therefore, it is also an embellishment. In such circumstances, I am of the view that the demand for dowry is not properly established by the prosecution from the evidence adduced by them. 24. In **Anilkumar @ Kannan v. State of Kerala [2020(4)KLT SN 24]** , it was observed by a Division Bench of this Court that unless and until the demand of dowry and the ingredients under Section 304B of the IPC is established by acceptable evidence, such death shall not be called as dowry death. It was further observed that if there is nothing to establish that the mental cruelty was for and in connection with the demand of dowry, the necessary ingredients of Section 304B will not be attracted. If the ingredients of the offence under Section 304B are not attracted, the presumption under the provisions of the Evidence Act also would not be attracted, so far as the offence under Section 304B is concerned. In **Major Singh v. State of Punjab [(2015) 5 SCC 201],** the Hon'ble Supreme Court was pleased to observe in paragraph 10 as follows: _“10. To sustain the conviction under S.304 - B IPC, the following essential ingredients are to be established:_ _(i) the death of a woman should be caused by burns or bodily injury or otherwise than under a 'normal circumstance';_ CRL.Appeal No.1397 /2007 24 _(ii) such a death should have occurred within seven years of her marriage;_ _(iii) she must have been subjected to cruelty or harassment by her husband or any relative of her husband;_ _(iv) such cruelty or harassment should be for or in connection with demand of dowry; and_ _(v) such cruelty or harassment is shown to have been meted out to the woman soon before her death.”_ ## In **Satbir Singh and Another v. State of Haryana [(2021(6) SCC 1]** , it was observed by the Hon'ble Supreme Court in paragraph 36(ii) as ## follows: _“36(ii). The prosecution must at first establish the existence of the necessary ingredients for constituting an offence under S.304 - B, IPC. Once these ingredients are satisfied, the rebuttable presumption of causality, provided under S.113 - B, Evidence Act operates against the accused.”_ When the aforesaid principles are applied to the facts of this case, the irresistible conclusion possible is that as the prosecution failed to prove the demand for dowry by adducing unimpeachable evidence, the ingredients for attracting the offence under Section 304B are not made out. In such circumstances, the presumption mentioned above would not come into play. Hence, the finding arrived at by the trial court holding the appellant guilty by placing reliance upon such presumption is liable to be interfered with. CRL.Appeal No.1397 /2007 25 25. Even about the offence under Section 498A also, I do not find proper materials to hold the appellant guilty for the said offence. It is true that the cruelty as defined in the explanation of Section 498A and the scope of the said provision is wider than the offence under section 304B. However, I am of the view that the materials available on record are not sufficient to attract the offence above. This is particularly because the crucial materials relied on by the prosecution are the depositions of PWs.4 and 5, and I have already found that their evidence cannot be relied upon for the reasons mentioned above, and it is not at all safe to hold the appellant guilty based on such evidence. In such circumstances, in my view, the finding of the trial court holding the appellant guilty of the offence under Section 498A IPC is also not correct and hence warrants interference. 26. Thus, on examining the entire aspect of the case, I am of the view that the prosecution failed to establish the guilt of the accused with adequate evidence. In such circumstances, this appeal is allowed, the judgment dated 26.07.2007 in S.C.773 /2005 passed by the Court of CRL.Appeal No.1397 /2007 26 Session, Kozhikode is hereby set aside and the appellant is found not guilty of the charges. His bail bond shall stand cancelled. Sd/- **ZIYAD RAHMAN A.A. JUDGE** pkk