JUDGMENT [ENTITY], J.
1. By our order dated 24-2-2004, we have allowed the appeal and passed the following orders :
"Heard Sri [ENTITY], learned counsel for the appellants, learned AGA and perused the record.
Appeal is allowed. Judgment and order dated 18-11-1981, passed by VI Additional Sessions Judge, Agra in [CASE NUMBER], is hereby set aside. The appellants are on bail. They need not surrender. Their bail bonds are cancelled and sureties are discharged.
Detailed reasons for acquittal of the accused will be given later."
2. We now proceed to give our reasons for the said order.
3. This appeal was preferred from the judgment dated 18-11-1981 passed by Sri [ENTITY], VI Additional Sessions Judge, Agra in [CASE NUMBER], State v. [ENTITY]. By this judgment the learned trial Court had convicted the appellants [ENTITY], [ENTITY] and Smt. [ENTITY] to imprisonment for life under [SECTION] 34, [ACT] As [ENTITY] the fourth accused had died during the pendency of the trial, the case had already abated against him.
4. The prosecution case was as follows :
The deceased Smt. [ENTITY] was married to the appellant [ENTITY]. After her marriage she was residing in House No. 9/120 Jatti Katra Moti Katra, District Agra along with her husband, his mother Smt. [ENTITY], her devar [ENTITY] and father-in-law [ENTITY]. These persons are said to have assaulted Smt. [ENTITY] over demand of dowry. In the morning of 15-4-1978 it is stated that [ENTITY] had beaten Smt. [ENTITY] severely. On the same day at about 3 p.m. Smt. [ENTITY]'s cry for help was heard by the informant [ENTITY] who was a neighbour. In response to that call when the informant reached [ENTITY]'s house he found that the aforesaid four accused persons were beating Smt. [ENTITY]. In the presence of [ENTITY] the accused sprinkled kerosene oil on Smt. [ENTITY] and set her on fire. This incident was also witnessed by [ENTITY] and others. The accused are said to have fled away from the room on seeing the witnesses. The witnesses tried to save Smt. [ENTITY] but she breathed her last in their presence after accusing the appellants of beating her and setting her on fire after pouring kerosene oil on her. A report of the aforesaid incident was lodged by [ENTITY] on 15-4-1978 at about 11.45 p.m. at Police Station Kotwali, District Agra. The post-mortem on the body of Smt. [ENTITY] was conducted by Dr. [ENTITY] P. W. 2 on 16-4-1978 at 4.30 p.m. According to the post-mortem report Smt. [ENTITY] had died from shock and asphyxia as a result of burns.
5. Earlier a written report about the death of Smt. [ENTITY] had also been lodged at the Police Station on 15-4-1978 at about 4.30 p.m. by the appellant [ENTITY] vide G. D. Entry No. 32 (Ext. Ka-10). According to this report the appellant [ENTITY] had gone to his brother's shop on 15-4-1978. At about 3.30 p.m. he returned along with his brother for taking food. When he went to his room he found his wife lying burnt with her child asleep. His parents who were heart patients had gone to his elder brother's place in Shamshabad. As a consequence of his report [ENTITY] and Constable [ENTITY] P. W. 5 proceeded to the appellants' house for conducting the inquest on the dead body of the deceased Smt. [ENTITY]. They found the dead body lying in a room. [ENTITY] conducted the inquest in presence of Constable [ENTITY] (who has proved the aforesaid inquest and the investigation conducted by [ENTITY], as [ENTITY] died before he could be examined in Court). The inquest report is marked as Ext. Ka-4. [ENTITY] also prepared the khaka lash, challan lash and letter for post-mortem which he handed over to Constable [ENTITY]. These are marked as Exts. Ka-5 to Ext. Ka-7. The dead body of Smt. [ENTITY] was sealed on the spot and thereafter sent to the hospital for post-mortem through Constable [ENTITY] P.W. 5. The site-plan (Ext. Ka-8) was also prepared by S.I. [ENTITY]. Finally charge-sheet (Ext. Ka-9) was submitted by [ENTITY]. The appellant [ENTITY] was admitted in the emergency ward of S. N. Hospital by Constable [ENTITY] P. W. 5 immediately after he lodged his report with the police.
6. The case was committed to the Court of Chief Judicial Magistrate on 7-2-1979. A charge was framed against the appellants under [SECTION], [ACT] for committing the murder of Smt. [ENTITY] in furtherance of their common intention by burning her with kerosene oil. As [ENTITY] father-in-law of Smt. [ENTITY] died during the pendency of the appeal the appeal abates against him.
7. The prosecution has examined six witnesses. P. W. 1 [ENTITY], the father of the deceased Smt. [ENTITY]; P. W. 2 Dr. [ENTITY], who conducted the post-mortem on the body of Smt. [ENTITY]; P. W. 3 [ENTITY], the informant and solitary eye-witness of this case; P. W. 4 [ENTITY], brother-in-law of Smt. [ENTITY], P. W. 5 constable [ENTITY] who proceeded with [ENTITY] at about 4.20 p.m. on 15-4-1978 for getting the inquest done and who proved the investigation and hand writing of [ENTITY]. He also took the dead body for post-mortem. P. W. 6 [ENTITY], Head Constable before whom the written report was lodged at the police station by the appellant [ENTITY] and entry made in the general diary No. 32 on 15-4-1978 at 4.20 p.m. (Ext. Ka 10).
8. P. W. 2 Dr. [ENTITY], who conducted the post-mortem on the body of the deceased found that the deceased was 21 years old, her time to death was one day earlier and rigor mortis was present all over her body. There were ante-mortem burn injuries all over the body except back and buttock. The tongue was protruding out and was clenched between the teeth. There were no other ante-mortem injuries on the body of the deceased Smt. [ENTITY]. Internal examination showed that trachea was congested and carbon particles were present. Both lungs were congested. There was blood in the right chamber whilst the left side was empty. The condition of the stomach was normal and two ounces of semi-digested food material were present in the stomach. In the small intestines there was semi-digested food material and in the large intestines gas and faecal matter was present. Liver was congested and weighed two pounds and four ounces. Spleen was congested and weighed six ounces. Both kidneys were congested and weighed six ounces. The bladder was empty. [ENTITY] was enlarged in size which suggested four weeks' pregnancy and there was a one inch long foetus. The cause of death was shock and asphyxia as a result of burns. The injuries were sufficient in the ordinary course of nature to cause death. It was possible that the death of Smt. [ENTITY] had occurred on 15-4-1978 at about 3 p.m. Dr. [ENTITY] P. W. 2 also gave replies to three questions asked from him at the time of inquest.
1. Whether the deceased had died from swallowing a pill? The answer was no.
2. What was the cause for blood being present in the private parts?
The answer was pregnancy.
3. If anything had been eaten or fed to the deceased, then the viscera ought to be preserved. Reply : The viscera was being preserved.
9. The accused pleaded not guilty and claimed to be tried. Appellant [ENTITY] admitted the marriage with Smt. [ENTITY] and her residing in his house on the date of the incident. He, however, denied the allegation of demand of dowry and also the allegation of murdering Smt. [ENTITY] on 15-4-1978 between 3 and 3.30 p.m. He also denied the alleged dying declaration of Smt. [ENTITY] in presence of [ENTITY] P. W. 3. He affirmed the report of general diary entry No. 32 dated 15-4-1978 at 4.20 p.m. and stated that it was a correct report. He denied that he ran away after lodging the report but stated that the police personnel got him admitted in the hospital. He stated that the report under [SECTION], [ACT] lodged against him was investigated by [ENTITY]. He pleaded ignorance about some other circumstances and denied absconding after the incident. His contention was that he had been falsely implicated in this case as he used to reside about 20 years ago along with his family in the house of [ENTITY]. There was some marpit between his father, [ENTITY] and others in connection with vacation of that house. [ENTITY] and his father had a criminal history. [ENTITY] was his tenant and it was under the pressure of [ENTITY] that the report has been lodged. [ENTITY] was also a relation of [ENTITY]. Smt. [ENTITY] has given similar replies as her son [ENTITY]. Further she has stated that she was in the house of her elder son when the incident took place. She has pleaded ignorance to most of the questions put to her, but imputed her false implication to enmity with [ENTITY]. The plea of the appellant [ENTITY] was also similar to that of [ENTITY]. He also ascribed his false implication to enmity with [ENTITY] and suggested that [ENTITY] was under the thumb of [ENTITY] as he was his tenant. The accused persons did not examine any witness in defence. However, they filed certain documents showing their enmity with [ENTITY], and about the criminal antecedents of [ENTITY]'s father [ENTITY].
10. The key and only eye-witness in this case is P. W. 3 [ENTITY]. He deposed in Court that he was residing in House No. 9/110 in Mohalla Jatti Katra Moti Katra in April 1978. The appellants and their father [ENTITY] used to reside in the house opposite to the house of the appellants. On the date of incident at about 3 p.m. he heard a cry 'bachao bachao' and reached the house of the accused persons in response to that cry. [ENTITY] and other persons of the mohalla also reached there. They found the court-yard of the house of the accused latched from inside. They then entered into the landlord's room. From that room they reached another room where there was a window, which had "sariyas" which was connected with the portion under the tenancy of the accused. In the room they saw that the four accused persons were present there. They also saw [ENTITY] and Smt. [ENTITY] catching hold of Smt. [ENTITY] and [ENTITY] and [ENTITY] were assaulting her with kicks and fist blows. The accused did not pay any heed to the cry of the witnesses to desist from such a course of action. When Smt. [ENTITY] fell flat on the floor then the accused [ENTITY] sprinkled kerosene oil on her and [ENTITY] set her to fire with a match stick. The accused persons refused to open the door of the house and fled away from another door. When the witnesses pushed the window then its latch ('Kunda') remained affixed on the window. When they reached the spot Smt. [ENTITY] was alive and was crying that her father-in-law and mother-in-law had beaten her and her devar had sprinkled kerosene oil on her and her husband had set fire to her and thereafter Smt. [ENTITY] died. Later, the landlady also came to the spot. When the I. O. arrived at the place of incident the informant gave him the report.
11. We find that the solitary evidence of [ENTITY] is not of such a character on which implicit reliance can be placed for convicting the appellants in a case under [SECTION], [ACT], in the absence of any corroboration from any other source, A very strange reason is given by this witness for not conveying information about the incident to the police station, which was hardly half a furlong away, because he claimed he was afraid that if he moved from the place for lodging the FIR, the accused might flee with the dead body of the deceased. He further stated that the accused departed from the house in his presence but he made no effort along with other persons who are also said to have assembled there to apprehend the accused, because they were trying to save Smt. [ENTITY]. Yet, in spite of the emergency ward of the Government hospital being hardly at a distance of 50 paces no effort was made to call any one from there or to take Smt. [ENTITY] to the hospital even though as this witness has stated earlier that Smt. [ENTITY] was alive when he reached the house and the incident took place in front of his eyes, and she was talking to them when she was making the alleged dying declaration alluded to above. Another improbable feature of his account is that if the accused persons were so bold as to assault Smt. [ENTITY] and to sprinkle kerosene oil and then set fire to her in spite of arrival of the witnesses, then what need would they have for fleeing from the place after the occurrence. Significantly, it was the appellant-[ENTITY] husband of Smt. [ENTITY] who has given the report to the police, which was entered at G.D. No. 32 at 4.20 p.m. on the date of incident and not this witness and it was on the basis of the report lodged by the appellant-[ENTITY] that the inquest and other proceedings commenced. P.W. 3 [ENTITY] was also unable to state whether the devar of Smt. [ENTITY] brought the "kafan" (cremation cloth) or not. [ENTITY] denies whether Smt. [ENTITY]'s husband appellant-[ENTITY], went to kotwali for giving information about this incident. He does not know at whose call the S.I. came to the place of incident at 5 p.m. There was a huge crowd at the place of incident. He does not remember whether he had shown the place where he was standing to the S.I. He claimed to have written the report before the arrival of the S.I. He could not recollect the spot where he sat down and wrote out the report. He also does not remember whether after writing the report he asked any one to take the report to the police station. The information about the window being broken is not mentioned in the report or in his statement recorded under [SECTION], [ACT] We also find that the specific description about the manner of assault which is deposed in his testimony in Court that [ENTITY] and Smt. [ENTITY] were catching hold of Smt. [ENTITY] while appellant-[ENTITY] and [ENTITY] were assaulting her with kicks and fists the witnesses asked them to desist from acting in this manner, and that Smt. [ENTITY] was lying flat on the floor when [ENTITY] sprinkled kerosene oil, and [ENTITY] lit a match stick and set [ENTITY] on fire are not mentioned in the First Information Report. We find that the version, about the manner of assault on Smt. [ENTITY], is being changed by the prosecution from stage to stage. In the FIR there was only an omnibus allegation that when the informant [ENTITY] reached [ENTITY]'s house the accused were beating Smt. [ENTITY], pouring kerosene oil on her and setting her on fire. The specific description of the roles ascribed to each of the accused in Court are also absent in the [SECTION], [ACT] statement of this witness. Subsequently, in Court he has again made conflicting statements by first stating that all four accused persons were beating Smt. [ENTITY], but he later changed this version and stated that [ENTITY] and Smt. [ENTITY] caught hold of Smt. [ENTITY] and the other accused persons were pouring kerosene oil and were setting her to fire. The witnesses tried to quell the fire, with some cloth lying around. According to the dying declaration version which Smt. [ENTITY] is said to have made to this witness at the place of incident, her saas and sasur had beaten her and her devar had sprinkled kerosene oil and her husband had set her on fire. In this state of the evidence and in view of all these inconsistencies and discrepancies described above, and the conduct and non-action of the witness in lodging the report or failing to do anything for organizing help for attempting to save Smt. [ENTITY], no reliance can be placed on the testimony of P.W. 3, [ENTITY], which appears to be fabricated for some ulterior reasons.
12. A further difficulty in this case is that there is no independent witness or other independent corroboration of this incident from any other source. No other witness, not even [ENTITY], (who as we will later see was highly interested in prosecuting the appellants), has come forward to support the case of the prosecution narrated by [ENTITY], even though the area where the incident took place is said to be a crowded mohalla and according to [ENTITY] many persons had gathered there at the time of incident.
13. Further more none of the family members of the deceased except her father P.W. 1 [ENTITY] have come forward for substantiating the allegation of demand for more dowry which could have constituted the only motive for such an incident, even if it is assumed for the sake of arguments that the death of the deceased was homicidal. P.W. 1 [ENTITY], has also half heartedly raised the allegation of dowry demand and he only mentions that [ENTITY] was married to Smt. [ENTITY] and on account of there being inadequate dowry [ENTITY], his mother and his father used to beat Smt. [ENTITY]. Smt. [ENTITY] had complained about this fact that they had demanded some money from him and whatever he could arrange for, he had provided to them. Significantly we find that no dates or amounts were mentioned when dowry was demanded and the amount, for which Smt. [ENTITY] was being tortured and no complaint etc. had ever been made in connection with any dowry demand. Smt. [ENTITY] had passed her B.A. examination and yet she had never sent any letter complaining about dowry demand. It appears that a lame excuse has been concocted by this witness, that [ENTITY]'s in-laws used to prevent her from sending letters, although later in his cross-examination he recants from his earlier statement that the in-laws of Smt. [ENTITY] ever prevented her from writing letters. In his [SECTION], [ACT] statement also there is no mention of any instance of dowry demand, or torture on that account. P.W. 1 [ENTITY] also admits that the in-law's of Smt. [ENTITY] were financially better off than the witness, who needed to get his six daughters married off and it was difficult for him to manage his financial affairs.
14. No sister of Smt. [ENTITY] or any other relation has supported the allegation of demand of dowry. [ENTITY] who is the brother-in-law of Smt. [ENTITY], as he was married to her sister although he has been examined in Court, as P.W. 4 has not even said a word about the demand of dowry made by the appellants. He states that the sister of accused had informed him about the incident and he arrived there. The house was searched in his presence and [ENTITY] was present at that time.
15. We find in this case that the appellant-[ENTITY] had admittedly lodged the report (Ext. 62 Ka) at 4.20 p.m. at Police Station Kotwali in which he has stated that when he returned to his house at 3 p.m. along with his brother for taking meals he found his wife in a burnt condition in his room and found his daughter asleep. The parents who were heart patients were away at Shamshabad with his elder brother. However a suggestion was made to [ENTITY] P.W. 1 father of Smt. [ENTITY] in cross-examination, that Smt. [ENTITY] had committed suicide in a fit of anger. In this view of the matter, we do feel that there is some inconsistency and a want of proper explanation as to how Smt. [ENTITY] had died even on the side of the accused. However, the onus of proving the cause of death and that it was homicidal and not accidental or suicidal first lies on the prosecution.
16. There is also no scientific analysis by the Investigating Officer, (although this Court is handicapped as the I.O. could not be examined as he died before trial) for attempting to determine whether the cause of death of the deceased-Smt. [ENTITY] was homicidal, suicidal or accidental.
17. A homicidal (or even suicidal death) might have been suggested if the I.O. had gathered circumstances such as statement of relations and neighbours indicating that the accused persons had been repeatedly torturing and assaulting Smt. [ENTITY] to meet illegal dowry demands. Ascertaining whether there was any smell of kerosene on the deceased or her clothes might have suggested homicide or suicide. (Although this circumstance is really of a neutral character as there could be presence of smell of kerosene in homicide, suicide or even in an accident). Examination by the I.O. as to whether the doors were bolted from inside, and the absence of any other exit for the offender, might have suggested suicide. (It is noteworthy that in this connection P.W. 3 [ENTITY] has stated that the court yard was bolted from inside. The attempt at breaking the 'Jangla' (window), which caused the bars to twist, and the latch (kundi) to be loosened though it remained attached to its hinge also suggests that the deceased had locked herself inside, when she took her life, and persons who arrived there later had attempted to break the window to force their entrance inside. If the claim of P.W. 3 that the accused left the place by another exit, what was the need to try and break the Jangla as the witnesses could have also entered from this other exit. This gives a lie to that account. Examining whether the stove had burst, or whether the clothes of the deceased were made of inflammable material might have suggested an accident. A scientific analysis of such aspects was needed by the Investigating Officer for suggesting whether the death was homicidal, suicidal or accidental, because as things stand any of the three possibilities could have existed in this case.
18. As mentioned above the manner of incident described by the only eye-witness. [ENTITY], P.W. 3, cannot be believed for the reasons enumerated above as no mohallawalas had appeared in Court to support his case and the conduct of [ENTITY] casts grave suspicion on his testimony. [ENTITY]'s FIR was lodged 8 1/2 hours after the incident at 11.30 p.m. Although he stated that Smt. [ENTITY] was alive when he reached there and she even made a kind of dying declaration in his presence that the accused persons had beaten her and set her on fire after pouring kerosene oil on her. However, his failure to rush her to the emergency ward which was a few paces from the place of incident, or to call a doctor or the police, and his strange explanation for his inaction that he and other neighbours before whom the incident took place did not stir from the place in order to prevent the accused persons from running away with the dead body is not easy to stomach. This is not the conduct of an eye-witness. There can be no denying the fact that when a woman dies in her marital home there is lot of social prejudice and anger against the family. But social prejudice and anger can never substitute legal evidence for implicating an accused.
19. [SECTION] of [ACT], no doubt, casts a duty on an accused to explain the circumstances that are within his special knowledge about how an incident has taken place. But this section does not dispel the initial burden on the prosecution to establish its case. Also the burden that is cast on the accused is never as heavy as that on the prosecution. In this case we find that the appellant-[ENTITY] husband of the deceased-Smt. [ENTITY] has rushed to the police station at 4.20 p.m. and given a report that his wife has died due to burn injuries in his room although he states that he was away at the time of the incident and it is in pursuance of his report that S.I. [ENTITY] reached the place of incident at 4.30 p.m. and conducted the inquest etc. The extent of duty cast on the accused under [SECTION] of the [ACT] is never as heavy as on the prosecution and this has been appositely delineated by the Hon'ble Supreme Court in [PRECEDENT] in paragraphs 9 and 10 which read as follows :
"9. Learned counsel for the appellant contended that [SECTION] of the [ACT] could not be called in aid by the prosecution because that section applied only where a fact relating to the actual commission of the offence is within the special knowledge of the accused, such as the circumstances in which or the intention with which an accused did a particular act alleged to constitute an offence. The language of [SECTION], [ACT] does not, in our opinion, warrant putting such a narrow construction upon it. This Court held in [PRECEDENT], that the burden of proving a plea specifically set up by an accused, which may absolve him from criminal liability, certainly lies upon him. It is a different matter that the quantum of evidence by which he may succeed in discharging his burden of creating a reasonable belief, that circumstance absolving him from criminal liability may have existed, is lower than the burden resting upon the prosecution to establish the guilt of an accused beyond reasonable doubt.
10. Neither an application of [SECTION] nor of [SECTION] of the [ACT] could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused.
20. The crucial question in the case before us is : Has the prosecution discharged its initial or general and primary burden of proving the guilt of the appellant beyond reasonable doubt ?"
21. Even if it is assumed for the moment that the deceased-Smt. [ENTITY] did not die from an accident but that she committed suicide, it has to be kept in mind that there could be many reasons for committing suicide, and commission of suicide will not ipso facto fasten criminal liability on the husband or his family members, in the absence of circumstances showing that the accused were guilty of abetting the suicide by the deceased. As the Hon'ble Supreme Court has indicated in the case of [ENTITY] Sarda v. State of Maharashtra, AIR 1984 SC 1622 : (1984 Cri LJ 1738) women have been known to commit suicide even to spite their husbands with whom there may be a quarrel or for taking revenge and for many other reasons. In "[ENTITY]'s" case the Apex Court has cited passages from text books of psychology setting out various causes why a woman commits suicide in paragraphs 40-45 and 95. It would be very helpful to reproduce these paragraphs in extenso :
"40. Thus, from the recitals in the letters, we can safely hold that there was a clear possibility and a tendency on her part to commit suicide due to desperation and frustration. She seems to be tired of her married life, but she still hoped against hope that things might improve. At any rate, the fact that she may have committed suicide cannot be safely excluded or eliminated. It may be that her husband may have murdered her but when two views are reasonably possible the benefit must go to the accused. In order to buttress our opinion, we would like to cite some passages of an eminent psychiatrist [ENTITY] where in his book "Death, Society and Human Experience" he analyses the causes, the circumstances, the moods and emotions which may drive a person to commit suicide. The learned author has written that a person who is psychotic in nature and suffers from depression and frustration is more prone to commit suicide than any other person. In support of our view we extract certain passages from his book.
The fact is that some people who commit suicide can be classified as psychotic or severely disturbed.
If we are concerned with the probability of suicide in very large population, then mental and emotional disorder is a relevant variable to consider. (243) And it is only through a gross distortion of the actual circumstances that One could claim all suicides are enacted in a spell of madness (p. 243) "Seen in these terms, suicide is simply one of the ways in which a relatively weak member of society loses out in the jungle-like struggle. (p. 243) The individual does not destroy himself in hope of thereby achieving a noble postmortem reputation or a place among the eternally blessed. Instead he wishes to subtract himself from a life whose quality seems a worse evil than death. (p. 245) The newly awakened spirit of hope and progress soon became shadowed by a sense of disappointment and resignation that, it sometimes seemed, only death could swallow. (p. 245) Revenge fantasies and their association with suicide are well known to people who give ear to those in emotional distress. (p. 251) "People who attempt suicide for reasons other than revenge may also set on the assumption that; in a sense, they will survive the death to benefit by its effect.
The victim of suicide may also be the victim of self-expectations that have not been fulfilled. The sense of disappointment and frustration may have much in common with that experienced by the person who seeks revenge through suicide. However, for some people a critical moment arrives when the discrepancy is experienced as too glaring and painful to be tolerated. If something has to go it may be the person himself, not the perhaps excessively high standard by which the judgment has been made. [ENTITY] and his colleagues found that a sense of failure is prominent among many people who take their own lives.
41. The above observations are fully applicable to the case of [ENTITY]. She solemnly believed that her holy union with her husband would bring health and happiness to her but unfortunately it seems to have ended in a melancholy marriage which in view of the circumstances detailed above, left her so lonely and created so much of emotional disorder resulting from frustration and pessimism that she was forced to end her life. There can be no doubt that [ENTITY] was not only a sensitive and sentimental woman but was extremely impressionable and the letters show that a constant conflict between her mind and body was going on and unfortunately the circumstances which came into existence hastened her end. People with such a psychotic philosophy or bent of mind always dream of an ideal and if the said ideal fails, the failure drives them to end their life, for they feel that no charm is left in their life.
42. [ENTITY]. [ENTITY] and [ENTITY] in their book 'The Meloncholy Marriage' observe that
'Studies of attempted suicide cases have also revealed the high incidence of marital problems which lie behind the act. In our own study of 100 consecutive cases ([ENTITY] and [ENTITY] (1969 , we found that most of them could be understood if the patients' interaction with others in their environment were considered.' (p. 5)
43. Such persons possess a peculiar psychology which instils extreme love and devotion but when they are faced with disappointment or find their environment unhealthy or unhappy, they seem to loose all the charms of life. The authors while describing these sentiments observe thus :
" 'Hopelessness,' 'despair,' 'lousy' and 'miserable' draw attention to the relationship of the depressed person to his environment. The articulate depressed person will often also struggle to put into words the fact that not only does there appear to be no way forward and thus no point to life but that the word actually looks different."
44. [ENTITY] in 'Ode to Dejection' in his usual ironical manner has very beautifully explained the sentiments of each persons thus :
"I see them all so excellently fair I see, not feel, how beautiful they are." 45. At another place the author ([ENTITY], [ENTITY] and [ENTITY]) come to the final conclusion that ruptured personal relationships play a major part in the clinical picture and in this connection observed thus :
"Initially we applied these ideas to study of cases of attempted suicide ([ENTITY] and [ENTITY] 1969) and although we did not assume that they were all necessarily depressed, we looked for distal and proximal causes for their behaviour and found that ruptured personal relationships played a major part in the clinical picture." (p. 50). The observations of the authors aptly and directly apply to the nature, mood and the circumstances of the unfortunate life of [ENTITY] which came to an end within four months of her marriage.
95. We might hasten to observe here that in case of woman of a sensitive and sentimental nature it has usually been observed that if they are tired of their life due to the action of their kith and kin, they become so desperate that they develop a spirit of revenge and try to destroy those who had made their lives worthless and under this strong spell of revenge sometime they can go to the extreme limit of committing suicide with a feeling that the subject who is the root cause of their malady is also destroyed. This is what may have happened in this case. Having found her dreams shattered to pieces [ENTITY] tried first to do her best for a compromise but the constant ill-treatment and callous attitude of her husband may have driven her to take revenge by killing herself so that she brings ruination and destruction to the family which was responsible for bringing about her death. We might extract what [ENTITY] in his book "Death, Society and Human Experience" has to say :
"Revenge fantasies and their association with suicide are well known to people who give ear to those in emotional distress."
22. What is punishable in such cases of suicide is the abetment of suicide under [SECTION], [ACT] [SECTION], [ACT] defines abetment as either (i) instigation or (ii) engagement with one or more other persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of that thing. From the mere fact that a lady has committed suicide in her marital home, it cannot be inferred, ipso facto, that her suicide has been abetted by her husband or other relations by marriage.
23. No doubt, there has been some alteration in the legal position after introduction of [SECTION], [ACT] by [ACT] w.e.f. 19-11-1986. Probably under this new provision whenever the death of a woman is caused by any burn or bodily injury or occurs otherwise than under normal circumstances within 7 years of her marriage and it is also shown that soon after 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 of dowry, such death shall be called dowry death for which the accused are punishable. This unnatural death would include commission of suicide by the wife and even in the absence of evidence of abetment if the allegation of harassment of dowry soon before the death could be substantiated, the accused persons could be held guilty for the same under the new provisions. [SECTION] of the [ACT], which was inserted by [ACT] w.e.f. 14-7-1984 and [SECTION] of the [ACT], which was inserted by [ACT] w.e.f. 19-11-1986 provide that in the event of suicide which has been committed by a woman within seven years of the date of marriage and when her husband or such relatives have subjected her to cruelty, the Court may presume that such suicide had been abetted. Under the amended provisions in the [ACT], if evidence is led that soon before her death she was subjected to cruelty and harassment in connection with any demand of dowry, the Court could presume the abetment of suicide by her husband or other relatives. But the onus still lies on the prosecution to show that the antecedent conditions existed before any presumption that the accused has abetted the commission of suicide or that he has caused dowry death of the married woman could be drawn. It is for the prosecution to discharge the burden and the accused can rebut the presumption by suggesting circumstances by preponderance of probabilities and unlike the prosecution the defence is not required to prove its case beyond reasonable doubt. Hence as the incident is of 15-4-1978, i.e. prior to the introduction of these new provisions, a greater burden lay on the prosecution to prove that the cause of death of the deceased-Smt. [ENTITY] was homicidal. That burden does not appear to have been discharged in this case.
24. Even assuming for a moment for the sake of argument that the death of the deceased-Smt. [ENTITY] was homicidal. As four persons were made accused in this case, [ENTITY] husband, [ENTITY] the devar, [ENTITY] the old father-in-law (who is now dead) and Smt. [ENTITY] mother-in-law who is about 79 years old, unless it could be determined whether any of these accused persons were involved in this case it could be wholly unsafe to convict all or any of them to imprisonment for life under [SECTION], [ACT] Once the statement of the alleged eye-witness P.W. 3 [ENTITY] is discarded there is no material to establish the complicity of any or all the accused persons with any degree of certainty. If alternatively this case is treated to be a case of circumstantial evidence, simply because Smt. [ENTITY] died in her marital home, the circumstances are not of such a nature in terms of the rules set for appreciating circumstantial evidence which point unerringly to the guilty of any or all of the accused. The well settled rules of circumstantial evidence ([PRECEDENT] are : "(1) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
25. In this connection paragraphs 18 and 20, of the recent Apex Court decision, [PRECEDENT] could also be perused with advantage :
"18. Assuming that the presence of all the accused persons on the dates and time of the incident is fully proved but that fact alone cannot lead to an inference that all of them jointly assaulted the deceased and had common intention to kill her. Mere presence of the appellants/accused in the house cannot reasonably lead to an inference of their joint participation in physical assault and common intention on their part with the convicted accused to commit her murder. The medical evidence showing that the death was not 'suicidal but 'homicidal' also does not necessarily lead to the inference of involvement of all the accused in the homicidal death of the deceased.
20. It is true that such crimes against married woman are generally committed within four wall of a house and many times in secrecy. Independent eye-witnesses or other direct evidence are scarcely available to the prosecution. But that is no reason to rely on circumstantial evidence which is not of required standard and base conviction on surmises. In the instant case, both the trial Court and the High Court erred in not applying the strict test before relying on the circumstantial evidence to pass the verdict of conviction. They convicted the appellants before us only because they resided in the same house as members of the joint family of the deceased and the two convicted accused and were found to be present at the time and date of the incident. There are several circumstances pointing to the innocence of the accused which were not taken into consideration. It is likely that the present appellants were present at that hour and time of incident but did not join with the convicted accused in physically assaulting the deceased. There may be inaction on their part in not saving the deceased from assault by the convicted accused. Their apathy may be morally reprehensible but would not make them criminally liable. Their statement under [SECTION] also does not lead to an inference that they (sic) could have been caused only by more than one person. We fail to understand why injuries like 15 contusions could not have been caused by two convicted accused repeatedly inflicting blows on the deceased."
26. Again in [PRECEDENT], where a father-in-law and husband were accused for the murder of the deceased-[ENTITY], whose dead body had surfaced from a village well, and where the prosecution alleged amorous overtures by the father-in-law which the deceased had rebuffed and complained against as the motive for the crime, the Apex Court rightly observed as follows : "Thus in a nutshell, the only incriminating circumstance which can be said to have been established is that there was perhaps a motive for appellant No. 2 to avenge himself for the accusation made against him by the deceased. Even so, the deceased could have met a homicidal death in other ways and not necessarily at the hands of the appellants. When links in the chain of circumstances are missing, we cannot jump to the conclusion that the assailants of the deceased could be no other than the appellants."
27. Learned A.G.A. suggested that one circumstance against the accused persons was that they had absconded after the incident. This proposition is not wholly correct. We find that the first report of this incident was lodged by appellant-[ENTITY] husband of the deceased-Smt, [ENTITY] on 15-4-1978 at 4.20 p.m. at Police Station Kotwali and in response to this report inquest and other proceeding were conducted. He was even taken to the emergency ward of the hospital by the police, who kept guard whilst he was hospitalised. It is mentioned in the inquest itself that the appellant-[ENTITY] (Devar) had brought the 'Kafan' cloth. This is also not the conduct of an absconder. No doubt, [ENTITY]'s FIR mentions that his parents were heart patients and they had gone to Shamshabad to the residence of his elder brother. Also 82/83, [ACT] Proceeding appear to have been initiated for the arrest of the accused persons. But this circumstance in the absence of other legal evidence connecting the accused with the crime is not a definite pointer to the guilt of the accused. When an out cry of bride burning or dowry death is raised against certain accused they may flee from the place of the incident because there is so much propaganda and social prejudice against the 'sasural walas' whenever a bride looses her life due to burns in her marital home irrespective of the fact whether the same were the result of homicide, suicide or an accident. In this case P.W. 3 [ENTITY] also states that he was keeping watch on the dead body. [ENTITY] and [ENTITY] were the witnesses of the inquest and they made adverse statements even at the time of inquest against the accused persons. There appears some substance in the plea of the appellants about their being falsely implicated at the instance of [ENTITY], because of their dispute with [ENTITY] and his father [ENTITY] when they were tenants in their house about 20 years earlier, and about [ENTITY] who admittedly was a tenant of [ENTITY], being under the influence of [ENTITY]. Significantly, [ENTITY] has no courage to depose in Court, and it appears that the dispute with [ENTITY] was the real reason which induced [ENTITY] to lodge the report against the accused.
28. In the judgment of the learned trial Court we find a long lecture on the evil of dowry. The learned Judge writes :
"Before parting with this I would like to state that law enacted to curb the tendency of the demand of dowry as fallen flat. [ENTITY] has become status symbol. Practice continues with unabated speed despite tall claims of social organisations and repeated resolutions to keep tender social relations of love and affection between wife and husband alive and not allow them to degenerate into financial connections. Family which at one time was considered to be gaint shock absorber, is badly shaking due to ruthless blows and harsh winds springing from dowry system. This social evil has assumed threatening proportions. We are heading towards the stage whenever outsiders will raise a finger to scorn and say that this is a Indian Society in which manhood is exploited, womanhood is dishonoured and dumped over garbage heap and childhood is cribbed/cabined and poisoned at its very source. Some meaningful efforts are overdue else our tall claim of spiritual heritage and laudable traditional physiology of non-possessiveness would become a cry in wilderness, and vain slogan of new hope unsupported by social facts and hard realities. On account of incident like present our roots have started shaking heavily. Thus from all these facts and discussion aforesaid I conclude that prosecution evidence coupled with the circumstances of the case inescapably fixes guilt at the accused. It is a case of well calculated murder."
Such sentimentalism and lectures should never be countenanced in the judgment as a substitute for legal evidence.
29. In our view the prosecution has completely failed to substantiate the allegation of dowry demand, as the accused persons were economically better off than the father of the deceased who had six daughters. There is no evidence of other witnesses substantiating the evidence of dowry demand and even the father of the deceased P.W. 1 [ENTITY] seems to have half heartedly made allegations of dowry demand without specifying any date and time when the dowry was demanded and has also failed to specify any item that had been demanded as dowry. None of the other relations of the deceased have even come forward to support the theory of dowry demand. In this view of the matter, we feel that the evidence adduced by the prosecution was not sufficient for recording conviction of the accused.
30. In the result, the appeal is allowed. The accused are acquitted in terms of the order already passed on 24-2-2004 in the Court.