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PETITIONER: BALRAM PRASAD AGRAWAL

       Vs.

RESPONDENT: THE STATE OF BIHAR & ORS.

DATE OF JUDGMENT:       10/12/1996

BENCH: G.N. RAY, S.B. MAJMUDAR

ACT:

HEADNOTE:

JUDGMENT:                THE 10TH DAY OF DECEMBER, 1996 Present:                 Hon’ble Mr. Justice G.N. Ray                 Hon’ble Mr. Justice S.B. Majmudar      S.B. Sanyal,  Sr. Adv.,  Gopal Prasad  and K.  Pandeya, Advs. with him for the appellant      B.B. Singh,  Adv. (NP),  and Anjani Kumar Jha, Adv. for the Respondents.                       J U D G M E N T      The following Judgment of the Court was delivered:      S.B. Majmudar, J.      In this  appeal by  special leave  under Article 136 of the Constitution of India the appellant-original complainant has brought  in challenge the order of acquittal rendered by the Additional Judicial Commissioner, Lohardagga in Sessions Trial case  against the  respondent-accused and as confirmed in Criminal  Revision Application  No.10 of 1992 by the High Court of  Patna, Ranchi  Banch. While granting special leave to appeal  a Bench  of two  learned judges  of this Court by order dated  25th March 1996 rejected special leave petition against respondent  no.4-original accused  no.2  Smt.  Jhalo Devi, mother-in-law  of the deceased while special leave was granted only  against respondent  nos.1, 2 and 3 who are the State of Bihar and original accused nos.1 and 3 respectively of the deceased Kiran Devi.      In this  case a  tragic fate  visited a  young  married woman aged  28 years  named  Kiran  Devi,  daughter  of  the appellant-complainant, who  is alleged to have been murdered by the  respondent-accused or  to have been forced to commit suicide by  falling in  a well  situated on the back side of the house of the accused.      A few  facts leading to these proceedings deserve to be noted   at the  outset. Deceased  Kiran Devi  was married to respondent no.2 Paran Prasad Agrawal in the year 1977. It is the case  of the  prosecution that  even after  five to  six years of  her marriage as no child was born respondent no.4, the mother-in-law  of the  deceased against  whose acquittal the present proceedings do not survive, and respondent no.3, the elder  brother of  the husband  of the  deceased  wanted accused no.1-respondent  no.2 to  marry some  other girl  by

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killing  Kiran   Devi.  It   is  the  further  case  of  the complainant father  of the  deceased that he got her treated by a  gynaeoologist and  subsequently she  gave birth to two sons. It  is alleged  that despite  the aforesaid events the cruelty meted put to Kiran Devi did not stop. They persisted in demanding  dowry and  as Kiran  Devi did not fulfil their requirement the  accused started  beating her physically and used to  torture her  causing danger to her life. That being tired to  the torture meted out to her she had earlier tried to jump  in the  same well about four years ago. But she was saved by  the neighbours.  In this regard Kiran Devi herself had made  a  report  before  the  concerned  Police  Station against her  husband  and  in-laws.  Thereafter  Kiran  Devi started living at her paternal home. However at the instance of her  father, a  compromise was  made with her husband and in-laws and  she was  brought to the house of her in-laws in the year  1988 where  she started to reside till the date of her tragio  death. It  is the  prosecution case  that on the fateful night  intervening 30th  and 31st  October  1988  at about 9.00  a.m. Kiran Devi fall in the wall situated in the backyard of  the house  of her in-laws which was occupied by all the  three accused  along with her. That on 31st October 1988  at  about  10.00  a.m.  her  husband  respondent  no.2 informed the appellant that his daughter Kiran Devi had died after falling  in the  well. Thereupon the appellant want to the house of her in-laws where he found the dead body of his daughter lying near the well. That he got shock of his life. Thereafter he  visited the  house of  the  accused  on  12th November 1988 in order to meet his grandson. At that time he was informed by the neighbours that on the previous night of the date of the occurrence there was quarrel in the house of the accused  and they  had heard  the crying  and weeping of Kiran Devi  and she  was being  assaulted  by  her  in-laws. Smelling a  rat, on  this information  the appellant  lodged written report/First  Information Report  on  12th  November 1988 about murder of his daughter Kiran Devi by the accused. it is  his case  that no  case was  registered by the police against the  accused as  approval of  the Superintendent  of Police had  to be  obtained. Ultimately  on the complaint of the appellant  before the  Superintendent of Police the case was ordered  to be  registered on  18th January  1989. After investigation  the   police  submitted   chargesheet   under Sections 498-A,  302 and  120-B of  the  Indian  Penal  Code (‘IPC’ for  short) against  the respondent-accused  and  the acquitted accused  mother-in-law of  the deceased before the learned Chief  Judicial Magistrate,  Lohardagga.  Ultimately the pass was committed to the Court of Sessions, namely, the Additional Judicial  Commissioner, Lohardagga.  The  learned Trial Judge framed charges against the accused under Section 302 read  with Section  34, IPC.  On the  completion of  the trial the  learned Judge  came to  the conclusion  that  the prosecution had not made out any base under Section 302 read with Section  34, IPC against the accused. The learned Judge in terms  held that  there was  evidence on  record that the members of  the family  of the  accused Paran Prasad Agrawal used to  assault the  victim lady  Kiran Devi  and they also used to demand dowry from her and there had also been threat given by  these accused  persons to  the victim,  that  they would kill  the victim  lady  and  would  get  Paran  Prasad Agrawal married  to another  lady. But  as the  marriage  of Kiran Devi took place in the year 1977 and murder took place in the  year 1988,  and  thus  more  than  seven  years  had elapsed, the  presumption that  Kiran Devi  might have  been killed for  the sake  of dowry cannot be raised. The learned Judge further  held that  he had  no doubt in this mind that

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these accused persons committed murder of Kiran Devi because of the threat being extended by them but in view of the fact that there  was no  legal evidence  he was  helpless and  he could not convict these accused persons and the charges fell to the  ground. The appellant carried the matter in revision before the  High Court.  A learned  Single Judge of the High Court who  decided the  Revision  Application  came  to  the conclusion that no case was made out for him to interfere of ravisional proceedings  against the  accused as there was no evidence to  show that  the accused were responsible for the murder of Kiran Devi.      Learned senior  counsel for  the appellant  Shri Banyal vehemently contended  that both  the courts below had failed to appreciate  the well  established fact on the record that deceased Kiran  Devi had  suffered a  consistent  course  of cruel conduct  on the  park of  the accused.  That  she  had earlier tried  to commit suicide by jumping in the same well but she  was saved  by the neighbours. That the accused were torturing her  and treating  her with extreme cruelty. Under these circumstances  even though  there may not be any clear evidence against  the accused  regarding their  overt act of throwing her  in the  well on  that fateful  night,  it  can easily be  seen that  at least  she  was  forced  to  commit suicide because  of the  cruelty meted  out to  her  by  the accused and evidence of the appellant in this behalf relying upon what  the neighbours  told him as to what transpired in the household  of the  accused  on  that  fateful  night  as corroborated  by   the  evidence  of  investigating  officer clearly established  the lessar  charge against  the accused under Section  498-a of  the IPC  and even though the police had charge  sheeted the accused also under Section 498-A the learned Sessions  Judge had  wrongly failed  to  frame  this alternative  charge  against  the  accused.  He,  therefore, submitted that either the matter be remanded for fresh trial or this Court in exercise of its powers under Article 142 of the Constitution of India may go into the evidence on record and take  appropriate decision  about the culpability of the respondent-accused for the offence under Section 498-A, IPC.      Learned counsel  for the  respondents on the other hand submitted that  though there  was  no  charge  framed  under Section 498-A,  IPC and  as the  prosecution  evidence  fell short of  bringing home  the charge  under Section  302 read with Section  34, IPC  against  the  accused  the  order  of acquittal as rendered by the Trial Court and as confirmed in revision by  the  High  Court  deserves  to  be  upheld.  He however, fairly  stated that  if this  Court  comes  to  the conclusion that  the accused  are required to be called upon to meet  the lesser charge under Section 498-A, IPC then the accused may  be charged  accordingly. He also submitted that if this  Court is  inclined to  appreciate the  evidence  on record and take decision on merits on the culpability of the accused so  far as offence under Section 498-A is concerned, then according  to him  the evidence  does not  connect  the accused with  the said  offence. That  there was  nothing on record to  show that the complainant was informed about what happened on  the   fateful night  by the  neighbours as  the neighbours who  were examined  in the  case  as  prosecution witnesses  had  turned  hostile  and  did  not  support  the prosecution regarding  what they were alleged to have stated in their  police statements and to the complainant about the incident of quarrel that took place on the fateful night. He submitted  that  what  the  complainant  deposed  about  the information gathered  by him  from the neighbours was purely hearsay evidence  and could  not be  legally relied upon. It was contended  by him  that once  that evidence is ruled out

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nothing remains  on the  record to  show as to what actually happened on  the night of the incident which resulted in the drowning of  deceased Kiran  Devi in  the well  and that  it could be  a case of sheer accident or even assuming that she had committed  suicide there  was nothing  to show  that the accused were  responsible for  the said  suicide or  had  by their willful conduct driven Kiran Devi to commit suicide on that fateful  night. He,  therefore, contended  that in  the light of  the evidence available on record even charge under Section 498-A is not brought home to the accused.      Having given  our anxious  consideration to these rival contentions  we   have  reached   the  conclusion  that  the prosecution has  not been  able to make out any case against the respondent-accused  under Section  302 read with Section 34, IPC.  There is  no evidence to show that on that fateful night the  accused or  anyone of  them had  pushed or thrown Kiran Devi  in the  well. But  that is  not the  end of  the matter. As  rightly contended  by learned senior counsel for the appellant  the evidence on record clearly indicated that a case was made out against the accused under Section 498-A, IPC. The said provision reads as under:      "498-A.  Husband   or  relative  of      husband of  a woman  subjection her      to  cruelty.   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   purposes  of      this section. "cruelty" means-      (a) any willful 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  on   account  of      failure  by   her  or   any  person      related  to   her  to   meet   such      demand."      Now it  is  of  course  true  that  though  police  had chargesheet the  accused also  alternatively  under  Section 498-A the  Trial Court framed charge under Section 302 which is obviously  for a  graver offence and did not think it fit to frame  any charge  under  Section  498-A,  IPC.  But  the evidence on  record, as we will presently point out, clearly attracted the  said charge.  Under  these  circumstances  we would have been required to remand these proceedings for re- trial on the available evidence after framing a charge under Section  499-A   against  the  respondent-accused  but  that exercise is not required in view of the fact that this Court in exercise  of powers under Article 142 of the Constitution of India  may itself  examine the question of culpability of the accused  for the  offence under  the said Section in the light of the evidence on record so as to obviate protraction of  trial   and  multiplicity  of  proceedings  against  the accused.

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    We have,  therefore, though  it  fit  to  consider  the question of  the culpability  of the  respondent-accused for offence under  Section 498-A  of IPC. It is now well settled that in  exercise of  powers under  Article 142, appropriate orders can  be passed  in the  interest of  justice in cases which are  brought before  this Court [See E.K. Chandrasenan v. State  of Kerala  (1995) 2  SCC 99].  We have accordingly heard the  learned counsel for the parties on this question. We have  been taken  thought the  relevant evidence  on  the record. Having carefully gone through the evidence on record we find that the prosecution has been able to bring home the guilt of the accused under Section 498-A, IPC.      In this connection we may refer to relevant evidence on record. The  appellant as  P.W.S. had stated on path that on 31st October  1988 at 10.00 a.m. he was informed by his son- in-law Paran Prasad Agrawal that his daughter had died after falling into  the well  and he  accordingly went on the site and saw  her dead  body. He had further deposed that on 12th November 1988 he went again to the house of the accused son- in-law to  see his  youngest grandson  and at  that time  he enquired of  the incident from the neighbors residing in the Mohalla and his neighbors told him that on previous night of the incident  Kiran Devi  was beaten  by  her  mother-in-law Jhala Devi,  Paran Prasad  and the  elder brother  of  Paran Prasad and  Kiran Devi  was shouting  ‘Bachao Bachao’  ‘save save’ and they also told that the mother-in-law, husband and elder brother  of the  husband of  Kiran Devi, Girbar Prasad were telling  that they would perform the second marriage of Paran Prasad  after killing her and were threatening to kill her and this fact was told to him by the neighbours, namely, Shiv Nath,  P.W.4, Laxmi  Mahto, P.W.3  and others,  namely, Birendra Prasad  etc. He  also stated  that  in  his  police complaint he had also given the names of these witnesses who informed  him  accordingly,  namely,  Ajay  Mittal,  Avdhesh Prasad, Shiv Nath Mahto, Laxmi Mahto and Birendra Prasad. He had also  deposed  about  the  suffering  undergone  by  his daughter at  the hands  of the  accused in  past  after  her marriage. That his daughter Kiran Devi and informed him that her husband  used to  ask her to bring money from him and on this he  replied that he had already given Rs. 10,000/-. She also used  to say  that her  husband  Paran  Prasad,  Cirbar Prasad and  mother-in-law Jhalo  Devi used  to beat her. The marriage of  his daughter  was soiamnized  in the year 1977. For 5-6  years there was no issue from her and hence her in- laws started  abusing  her  and  wanted  to  make  a  second marriage of  Paran Prasad.  He got  Kiran  Devi  treated  at Ranchi and  consequently she  gave birth  to two sons. About four years  prior to  this incident  his daughter Kiran Devi due to  the atrocities  of her  in-laws had  jumped into the same well.  However the neighbours had saved her. That after birth of her youngest son she started living at his house as his son-in-law  was not  taking her  back. That  he sent his daughter to  her in-laws’ house after convincing his son-in- law. In  cross examination  he stood by his version that the people of  the Mohalla  told him  that on  the fateful night they had  personally heard  the sound  of quarrel  and  that threat to kill her. He also reiterated what he stated before the police  in this  connection. He  proved two  post  cards which he  had received when his daughter was pregnant and in these post  cards he  was informed  that his  son-in-law was trying to  get married to one Lalo Devi. Nothing substantial could be  brought out  in his cross examination to discredit his aforesaid version. This version is fully corroborated by the evidence  of P.W.8  Kedar Nath Pathak, the investigating Officer. The  aforesaid evidence  of the  appellant  clearly

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established  the   sufferings  undergone   by  his  daughter deceased Kiran  Devi at  the hands  of the  accused and  the situation had  so worsened  that she  had  tried  to  commit suicide even  earlier and  was saved  by the neighbours. His evidence about  what his  deceased daughter told him earlier about her sufferings at the hands of the accused was clearly admissible  under  Section  22  of  the  Evidence  Act.  His evidence  further  shows  that  the  cruel  conduct  of  the respondent-accused  did  not  abate  and  appeared  to  have continued till  the fateful  night when the situation became unbearable to the deceased which resulted in her unfortunate death by  drowning in the well in the courtyard of the house of the  accused. it  is necessary to appreciate that on that fateful night apart from the victim only the accused ware in the house.  Thus what happened on that night and what led to the deceased  failing in the well would be wholly within the personal and special knowledge of the accused. But they kept mum on  this aspect.  It is of course true that burden is on the prosecution  to prove  the case beyond reasonable doubt. But also  the prosecution  is found  to have  shown that the accused were guilty of persistent conduct of cruelty qus the deceased spreed  over years  as is well established from the unshaken testimony  of P.W.6,  father of  the deceased girl, the facts  which were  in  the  personal  knowledge  of  the accused who  were present in the house on that fateful night could have been revealed by them to disprove the prosecution case. This  burden under  Section 109 of the Indian Evidence Act is  not discharged  by them.  In this  connection we may usefully refer to some of the decisions of this Court on the point. In  the case  of Shambhu  Nath Mehra  v. The State of Ajmer AIR  1956 SC  404 Bose,  J. speaking  for a two member Bench referring  to the  applicability to Section 106 of the Evidence  Act   to  criminal   prosecutions  laid   down  in paragraphs 10 and 11 of the Report as under:      "(10) Section  106 is  an exception      to S.101. Section 101 lays down the      general rule  about the  burden  of      proof.      ‘Whoever desires  any Court to give      judgment as  to any  legal right or      liability    dependent    on    the      existence   of   facts   which   he      asserts,  must   prove  that  those      facts exist’.      Illustration (a) says-      ‘A desires a Court to give judgment      that B shall be punished for a      crime which A says B has committed.      A must  prove that  B has committed      the crime’.      (11) This  lays  down  the  general      rule that  in a  criminal case  the      burden   of   proof   is   on   the      prosecution and  S.106 is certainly      not intended  to relieve it of that      duty.  On   the  contrary,   it  is      designed    to     meet     certain      exceptional cases in which it would      be  impossible,   or  at  any  rate      disproportionately  difficult,  for      the prosecution  to establish facts      which are  ‘especially’ within  the      knowledge of  the accused and which      he could  prove without  difficulty      or inconvenience."

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    In the  case of  Collector of Customs, Madras & Ors. v. D. Bhoormull  AIR 1974  SC 850  another Bench of two learned judges of this Court while considering the offence under Sea Customs Act,  1878 earmarked the scope of Section 106 of the Evidence Act  in the following terms in paragraphs 31 and 32 of the Report:      "31. The  other cardinal  principle      having an  important bearing on the      incidence of  burden  of  proof  is      that sufficiency  and weight of the      evidence is  to be  considered - to      use the  words of Lord Mansfield in      Blatch v.  Archar (1774)  1 Cowp 63      at p.65  ‘according  to  the  proof      which it  was in  the power  of one      side to  prove, and in the power of      the  other  to  have  contradicted.      Since it is  exceedingly difficult,      if not  absolutely  impossible  for      the  prosecution   to  prove  facts      which  are  especially  within  the      knowledge of  the opponent  or  the      accused, it is not obliged to prove      them as part of its primary burden.      32.   Smuggling    is   clandestine      conveying of  goods to  avoid legal      duties. Secrecy  and stealth  being      its   covering    guards,   it   is      impossible   for   the   Preventive      Department to unravel every link of      the process. Many facts relating to      this illicit business remain in the      special or  peculiar  knowledge  of      the person  concerned in it. On the      principle underlying  Section  106,      Evidence   Act,   the   burden   to      establish those  facts is  cast  on      the  person  concerned  and  if  he      fails to establish or explain those      facts,  an   adverse  inference  of      facts may  arise against  him which      coupled   with    the   presumptive      evidence adduced by the prosecution      or the  Department would  rebut the      initial presumption of innocence in      favour of  that person,  and in the      result prove him guilty. As pointed      out by  Best in  ‘Law of  Evidence’      (12th Edn.  Article 320, page 291),      the "presumption  of innocence  is,      no doubt,  presumption juris‘:  but      every day’s  practice shows that it      may be  successfully encountered by      the presumption  of  guilt  arising      from      recent      (unexplained)      possession  of   stolen  property",      though  the   latter  is   only   a      presumption  of   fact.  Thus   the      burden on  the prosecution  or  the      Department  may   be   considerably      lightened even  by such presumption      of fact  arising in  their  favour.      However, this  does not  mean  that      the special  or peculiar  knowledge      of  the  person  proceeded  against

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    will relieve the prosecution or the      Department  all   together  of  the      burden of  producing some  evidence      in respect  of that  fact in issue.      It will  only alleviate that burden      to  discharge   which  very  slight      evidence may suffice."      On the  other  hand  the  evidence  of  the  appellant- complainant which  had stood  the test  of cross-examination has clearly  established the  culpability of  the accused so far as  their wilful conduct of cruelty against the deceased is concerned.  it is  true that what happened on the fateful night was  said to  have been conveyed to the complainant by witness Shiv  Nath Mahto,  P.W.4,  Laxmi  Mahto,  P.W.3  and others who have all turned hostile.      It was  submitted by  learned senior  counsel  for  the appellant that  what was  deposed to  by the  witness  P.W.6 would not  remain in  the realm of hearsay evidence as these informants have been examined as witnesses. It was contended by him that before any oral version of a witness can be said to be  hearsay it mus amount to statement of oral version of the witness  based on  what he heard from others who are not before the court. In other words the witness says about what he heard  from outsiders.  Section 60 of the Indian Evidence Act lays  down that  oral evidence  must be  direct.  If  it refers to  a fact  which could  be heard,  it  must  be  the evidence of  a witness  who says  he heard  it. The evidence before  the   court  can   be  divided   into  original  and unoriginal. The  original is  that which  a witness  reports himself to  have seen or heard through the medium of his own senses. Unoriginal,  also  called  derivative,  transmitted, secondhand or  hearsay, is  that which  a witness  is merely reporting not  what he  himself saw  or heard,  not what has come under  the immediate  observation  of  his  own  bodily senses, but  what he  had learnt respecting the fact through the medium  of a  third person. Hearsay, therefore, properly speaking  is  secondary  evidence  of  any  oral  statement. Learned senior  counsel for  the appellant submitted that if the informants  are examined  as witnesses as in the present case, the objection to hearsay disappears as then it becomes the original  evidence of  the informant  who can  be cross- examined about  the truth  of his  information  conveyed  to P.W.6 and  in such an eventuality the versions deposed to by P.W.6 and  the informants  will fall  for scrutiny  and will have to  be weighed by the court with a view to ascertaining as to  which of  the versions  on bath  is a correct one. In this connection we were referred to a decision of this Court in the  case of  Bhugdomal Gangaram & Ors. etc. v. The State of Gujarat  AIR 1993 SC 906 wherein at page Q10 Varadarajan, J. speaking  for a two member Bench dealing with evidence of P.W.12 about  what was  informed to  him made  the following pertinent observations in paragraph 13 of the Report:      "Accused Nos.  3 and  5  have  been      convicted  by  the  learned  single      Judge under Section 66(1)(b) of the      Act. The  prosecution relies on the      evidence of P.W.12 to show that the      had  received  information  in  the      evening  of   12-9-1970  that  from      Baroda the  truck GTD 4098 would be      carrying liquor  to  Ahmedabad  and      that accused  Nos. 3 and 4 and some      other persons  would be coming in a      taxi behind  the truck.  But  since      the informant has not been examined

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    as a witness the evidence of P.W.12      that he  was informed  that accused      Nos.3 and  4 would be coming behind      the  truck   in  a   taxi  is   not      admissible."      It was, therefore, submitted that what is deposed to by a witness  about the  information conveyed to him by another would remain  hearsay unless  the author of this information also is  examined in  the case  and is  subjected  to  cross examination. In  the latter  contingency  the  objection  of hearsay would disappear and the court will have to weigh the relative merits  and demerits  of  the  respective  versions deposed to  by the  concerned witnesses,  one  affirming  an information and  another denying the same. On the other hand it was  submitted on  behalf of  respondent-accused that  as informants P.W.3  and P.W.4  had turned  hostile, version of their alleged  information to P.W.S and the details thereof, will remain in the realm of hearsay evidence as they had not asserted about  such information  in their  examinations-in- chief. We find prima facie some force in what learned senior counsel for  the appellant  submitted  in  this  connection. However on the facts of the present case it is not necessary to dilate  on this  aspect and to decide whether the details of the  information  said  to  have  been  conveyed  to  the appellant P.W.S by these hostile witnesses remained in realm of hearsay  evidence or not. We will assume that contents of this  information   represented.  Still   as  will  be  seen presently,   their    are   clinching   circumstances   well established on  the record  by the prosecution which clearly bring home  the charge  under  Section  498-A,  IPC  to  the respondent-accused.      We now  proceed to  narrate these  circumstances. It is now well  settled that even evidence of hostile witness also to the extent it corroborates the prosecution version can be relled upon (Khujji alias Surendra Tiwari v. State of Madhya Pradesh  AIR   1991  SC   1853  and   Sat  Paul   v.   Delhi Administration AIR  1976 SC 2941. Witness Laxmi Mahto, P.W.3 in his  chief examination  before the  court stated  that he heard in the night of the incident sound of quarrel from the house  of  Paran  Prasad  Agrawal  (accused-husband  of  the deceased). A  fight was  going on  inside the  house and the said hullah was of the same. At around 1.00-1.30 a.m. in the night he  heard the said hullah. That was a sound of a woman but he  could not  say whose voice was that. This version of his  in  the  examination-in-chief  lands  predance  to  the version deposed  to  by  the  complainant  P.W.6  and  fully supports his  case about  what the  witness is  said to have conveyed to the complainant when he met him on 12th November 1988. So  far as the evidence of hostile witnesses Shiv Nath Mahto, P.W.4,  Laxmi Mahto,  P.W.3 as  well as  Ajay Mittal, P.W.2 is  concerned it  becomes clear that they have reslled from  their   original  versions  before  the  Investigating Officer with  a view  to help  their neighbours  the present accused and their contrary versions on oath before the court were clearly unreliable and false ones. We would, therefore, reject their  versions and  on the  contrary rely  upon  the natural version of P.W.6, complainant whose evidence appears to  be   more  reliable  and  creditworthy  and  which  gets corroborated even  by the evidence of hostile witness P.W.3. We may  also note  that even  if the  nature of  information alleged to  be conveyed  to P.W.6 the father of the deceased by the  neighbours about  what was actually heard by them on that fateful  night may  be ruled  out as  hearsay, the fact that some  information was conveyed to him by the neighbours on 12th  November 1988  which prompted him to rush to police

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as he  entertained grave  doubt on  the basis  of  what  was conveyed to  him by  neighbours about  the  conduct  of  the accused on  that night  and which  made him  apprehend about their culpability  in connection with unnatural death of his daughter, would remain admissible in evidence as the conduct of  this  witness  P.W.6  propelled  by  the  fact  of  such information by neighbours about what the witness did on 12th November 1988  and not  earlier by  approaching police. That part of  his evidence  was not  shaken in cross examination. Not only that but even the hostile witnesses P.W.3 and 4 who are alleged  to have  given some  information to the witness P.W.6 on 12th November 1988 had not even whispered either in their chief examination or cross examination about their not having conveyed  any information  or not having met P.W.6 on 12th November  1988 as  deposed to by P.W.6 in his evidence. This part  of the  evidence of P.W.6 would not be hit by the rule of  exclusion of  hearsay evidence.  A decision of this Court deserves  to be  noted on  this aspect. In the case of J.D. Jain  v. The  Management of  State Bank of India & Anr. AIR 1982  SC 673  a Bench  of three  learned Judges speaking through Baharul  Islam, J. in paragraph 10 of the Report has made the following pertinent observations:      "The  word  ‘hearsay’  is  used  in      various senses.  Sometimes it means      whatever a  person is heard to say;      sometimes  it   means  whatever   a      person  declares   on   information      given by someone else. (See Stephen      of Law of Evidence).      The Privy  Council in  the case  of      Subramaniam v.  Public  Prosecutor,      (1958)   1   WLR   <??>   observed:      ‘Evidence of  a statement made to a      witness who  is not  himself called      as a  witness may  or  may  not  be      hearsay.   It    is   hearsay   and      inadmissible when the object of the      evidence is  to establish the truth      of  what   is  contained   in   the      statement. It is not hearsay and is      admissible when  it is  proposed to      establish by  the evidence, not the      truth of the statement but the fact      that it  was made. The fact that it      was  made   quite  apart  from  its      truth, is  frequently  relevant  in      considering the  mental  state  and      conduct thereafter  of the  witness      on  some  other  persons  in  whose      presence   these   statements   are      made’."      It is also to be appreciated that evidence of father of the deceased P.W.6 shows that his daughter’s married life in the household of the accused had undergone rough weather all throughout. She  was illtreated  both for not bringing dowry amount to  the satisfaction  of the accused and also for not giving birth  to children.  Accused no.1,  her husband, also was contemplating  to remarry  one Lalo Devi as letters Ex.4 and 4/1  showed. Complainant’s  evidence further showed that his deceased  daughter had  earlier tried  to commit suicide but was  saved in the nick of time by neighbours. Even after birth of two sons ill-treatment of his deceased daughter and quarrels with  her  continued  till  the  fateful  night  as deposed to  by complainant P.W.6 and as corroborated by even hostile witness  P.W.3 as  seen earlier.  It can, therefore,

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safely be  presumed under  Section 114  of the  Evidence Act that the  cruel treatment  meted out  to the deceased by the accused earlier  had continued  unabated till  the very last when she was forced to commit suicide on that fateful night. Such a  presumption of  continuanos of cruel treatment which is established  on record  necessarily  points  an  accusing finger to the accused. Such presumption under Section 114 of the Evidence  Act has remained unrebutted on record. This is another clinching  circumstance well established against the accused. In  this connection we may refer to what this Court said in two of its judgments. In Ambika Prasad Thakur & Ors. etc. v.  Ram Ekbal Rai (Dead) by his L.Rs. and Ors. etc. AIR 1988 BC  906 a three member Bench of this Court referring to illustration (d) of Section 114 of the Evidence Act has made the following  pertinent observations  in  para  15  of  the Report:      "If a thing or a state of things is      shown to exist, an inference of its      continuity  within   a   reasonably      proximate time  both  forwards  and      backwards may  sometimes be  drawn.      The    presumption     of    future      continuance is noticed in illus.(d)      to S.114.  In appropriate cases, an      inference of  the continuity  of  a      thing or  state of things backwards      may be  drawn under  this  section,      though on  this point  the  section      does   not    give    a    separate      illustration.  The  rule  that  the      presumption  of   continuance   may      operate  retorspectively  has  been      recognised both  in India.  This is      rule of  evidence by  which one can      presume the  continuity  of  things      backwards.   The   presumption   of      continuity weakens with the passage      of time.  How far  the  presumption      may be  drawn  both  backwards  and      forwards depends upon the nature of      the  thing   and  the   surrounding      circumstances."      Another three  member Bench of this Bench of this Court in the  case of  Kali Ram  v. State  of Himachal Pradesh AIR 1979 SC  2773 speaking  through  Khanna,  J.  has  made  the following pertinent  observations in  paragraph  24  of  the Report:      "Leaving   aside   the   cases   of      statutory presumption,  the onus is      upon the  prosecution to  prove the      different   ingredients    of   the      offence and  unless  it  discharges      that onus,  the prosecution  cannot      succeed. The  court may, of course,      presume, as  mentioned  in  Section      114 of the Indian Evidence Act, the      existence  of  any  fact  which  it      thinks  likely  to  have  happened,      regard  being  had  to  the  common      course  of  natural  events,  human      conduct  and   public  and  private      business, in  their relation to the      facts of  the particular  case. The      illustration  mentioned   in   that      section,    though    taken    from

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    different    spheres    of    human      activity, are  not exhaustive. They      are based upon human experience and      have to  be applied  in the context      of the  facts  of  each  case.  The      illustrations are  merely  examples      of circumstances  in which  certain      presumptions  may  be  made.  Other      presumptions of a similar kind in a      similar circumstances  can be  made      under the provisions of the section      itself.   Whether    or    not    a      presumption can  be drawn under the      section  in   a   particular   case      depends ultimately  upon the  facts      and circumstances  of each case. No      hard and  fast  rule  can  be  laid      down. Human behaviour is so complex      that room  must be left for play in      the joints.  It is  not possible to      formulate   a   series   of   exact      propositions  and   confine   human      behaviour within straitjackets. The      raw  material   here  is   far  too      complex  to   be   susceptible   of      precise and  exact propositions for      exactness here is a fake."      It must,  therefore, be  held that  the prosecution had fully established  its case  against the accused that on the fateful night  between 30th  October and  31st October  1988 deceased Kiran  Devi was subjected to cruelty by her mother- in-law, her  husband accused  no.1  and  his  elder  brother accused no.3  which forced her to commit suicide. It is easy to visualize  the unbearable  state of affairs on that night when a  young  housewife  having  two  minor  children,  the younger only  four and  a half  years of age, had to jump in the well  to end her miserable existence in the house of the accused. Unless  the torture to her had become unbearable in the common  course of  human conduct  such a young housewife having commitments  to life could not have taken the drastic step to  end her  life, leaving her infant sons in the lurch and at  the mercy of the accused especially when her husband accused no.1 was contemplating a re-marriage. As the Special Leave Petition  of accused  no.2. mother-in-law  of deceased Kiran Devi has been dismissed we need not say anything about her culpability.  However the aforesaid evidence clinchingly established beyond   of  reasonable doubt  that respondents, original accused nos.1 and 3, by their wilful and parslatent conduct of  cruelty on  Kiran Devi  had driven her to commit suicide by  jumping in  the well  in the  compound of  their house. It  is not  possible to  agree with the contention of learned counsel  for the  respondents that  she  might  have accidentally fallen  in the  well. It has to be kept in view that at  3.00 O’clock  in winter  night while  the  deceased would be  sleeping in  the house  there would  have been  no occasion for  her to  go  in  the  back  verandah  and  fall accidentally in the well which was 25 ft. away from the back door of  the house  as seen  from the  evidence of P.W.8 the Investigating  Officer.  On  the  contrary  the  prosecution evidence clearly indicates beyond shadow of reasonable doubt that because  of the  mistreatment by  the accused  and  the consistant course  of cruelty perpetrated on her, she had on the fateful  night suffered  from the  last straw that broke the camel’s back. Earlier she had jumped in the same well to put and  end to her miserable existence but was saved by the

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neighbours. Yet  the life  for her  in the  household of the accused did  not improve  subsequently. She  was, therefore, driven to once again try to commit suicide by failing in the very same  well in  which she had earlier fallen. But on the second occasion on that fateful night when she jumped in the well there  was no  neighbour to  save her  and her life got extinguished. Under  these circumstances  it cannot  be said that the  accused were  not responsible  for bringing  to  a tragic and  the life  of this young housewife aged 28 years, mother of  two children,  who  having  suffered  in  such  a drastic manner  at the  hands of  the accused  was driven to take the extreme step of committing suicide. This is neither the case  of murder nor the case of accident. But it is only the case of suicide for which the persistent hostile conduct of the accused over years as deposed to by P.W.6 complainant and also  the act  of cruelty  perpetrated  on  her  on  the fateful night  as revealed by the aforesaid wall established clinching circumstances,  were directly  responsible. It  is also pertinent  to note that the learned Trial Judge reached that conclusion  in para  8 of  the judgment. However in his view this  was no  a dowry  death as contemplated by Section 304-B, IPC  as the  deceased had  died more than seven years after her  marriage. But  unfortunately  the  learned  Trial Judge failed to examine alternative case under Section 498-A which got  squarely attracted  on the  facts of  the present case. It  must, therefore,  he held that on the facts of the present case  the prosecution has been able to bring home to the accused  beyond shadow of reasonable doubt offence under Section 498-A,  IPC read  with Explanation (a). When she was driven to take such a drastic step all the accused including acquitted accused  mother-in-law were in the house and along with them  rasided the  victim and  her two  minor children. Hence the accused alone must be held responsible for driving her to commit suicide by their misconduct which had led to a quarrel and  shouting revealing  the voice  of  a  woman  as admitted even  by the  hostile witness  P.W.3  who  actually heard the  same being  the  next  door  neighbour.  All  the circumstances  proved   by   the   prosecution   clinchingly establish the  culpability of  the accused themselves and no one else.  These established  circumstances wholly  rule out any reasonable  possibility of innocence of the accused from any  viewpoint.   In  other   words   the   chain   in   the circumstantial evidence  is so  complete against the accused as to  rule out  any other hypothesis about their innocence. We accordingly  convict respondent no.2 Paran Prasad Agrawal and  respondent  no.3  Girbar  Prasad  Agrawal  of  offences punishable under Section 498-A, IPC.      In view  of our  aforesaid  finding  of  guilt  of  the concerned respondent-accused  it will  now be  necessary  to hear them  on the  question of  appropriate sentence  to  be imposed on  them. We,  therefore, give an opportunity to the learned counsel  for the  respondent to  have his say on the question of  appropriate sentence  to be  imposed  on  these accused after taking instructions from them. It will be open to the learned counsel for the respondent-accused to furnish material  on  this  aspect  by  way  of  affidavits  of  the concerned accused  if thought  fit. Accordingly  the  matter stands adjourned  to 17-1-97  for hearing the accused on the question of sentence.