IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: May 16, 2014
MAHAVIR KUMAR & ORS. ….. Appellants
Through: Mr.K.B. Andley, Sr. Advocate with Mr.M.L.Yadav and Mr.Lokesh Chandra, Advocates.
STATE ….. Respondent
Through: Mr.Ravi Nayak, APP
HON’BLE MR. JUSTICE KAILASH GAMBHIR
HON’BLE MS. JUSTICE SUNITA GUPTA
: SUNITA GUPTA, J.
1. Challenge in this appeal is to the judgment and order on sentence dated 16th October, 1999 and 23rd October, 1999 respectively passed by the learned Additional District and Sessions Judge, Delhi in Sessions Case Nos.161/97 arising out of FIR No.52/96, PS Tilak Nagar whereby the appellants were convicted u/s 304B IPC and were sentenced to undergo imprisonment for life and a fine of Rs.50,000/- each, in default of payment, to further to undergo SimpleImprisonment for 5 years each.
2. Background facts as projected by the prosecution in nutshell are as follows:
3. On 20th January, 1996, on receipt of DD No.15A, PW5 ASI Shekhar Lal along with Constable Umed Singh went to house No. WZ-175, Harijan Colony, Tilak Nagar where he found window of a room broken and the door of the room was locked from inside and saw a lady hanging in the room. After sending a boy through the way of window he got the door of the room opened and found the dead body of Saroj. The dead body was brought on the floor after cutting the chunni with which it was hanging. Information was sent to SDM Mr. Dahia to initiate inquest proceedings. One suicide note was found lying on a table in the room which was seized vide seizure memo Ex.PW2/A in the presence of PW3 Inderjeet and PW2 Dalip. The dead body was sent to mortuary at Sabzi Mandi. When the belongings of the room were searched, at that time father of the deceased Ved Prakash produced one letter allegedly written by the deceased to her parents which was seized vide seizure memo Ex.PW5/A. SDM conducted the inquest proceedings in respect of the dead body. After the post mortem, the dead body was given to the father of the deceased. On 22nd January, 1996, PW14 Sh. K.K. Dahia recorded the statement of Ved Prakash (Ex.PW10/B) and directed SHO PS Tilak Nagar to register the case under the appropriate provision of law and investigate the case according to law. Accordingly, FIR under Section 498A/304B IPC was registered. During the course of investigation, all the accused were arrested. After completing investigation, charge sheet was submitted against them.
4. After hearing arguments on charge, vide order dated 5th August, 1997, charge under Section 304 B IPC was framed against all the accused to which they pleaded not guilty and claimed trial.
5. In order to bring home the guilt of the accused, prosecution, in all, examined 16 witnesses. All the incriminating evidence was put to the accused persons wherein factum of marriage of the deceased Saroj with accused Mahavir on 7th May, 1995 was admitted. It was also admitted that the remaining accused Shri Chand, Chameli and Sarla are father-in-law, mother-in-law and sister-in-law respectively of the deceased. It was also admitted that after marriage, deceased started living with the accused persons at her matrimonial home WZ 175, Harijan Colony, Tilak Nagar, Delhi. It was also admitted that on 20th January, 1996, Saroj committed suicide and on receipt of DD No. 15A, ASI Shekhar Lal along with Constable Umed Singh reached H. No. WZ-175, Harijan Colony, Tilak Nagar, Delhi where they found a lady hanging in the room. The dead body was brought on the floor. A suicide note was found on the table which was seized by the police. However, rest of the case of the prosecution was denied. All the accused pleaded their innocence. It was alleged that the deceased was never harassed nor any dowry was ever demanded nor any cruelty was ever inflicted upon her. It was alleged that she was living happily in the house and was well looked after. She was never beaten. In support of their defence, they examined DW1 Sh.Anand and DW2 Sh.Raghuvir Singh, both of whom are neighbours of the accused and have deposed that the accused persons used to look after and keep the deceased in proper manner and no dowry was ever demanded in their presence.
6. After considering the evidence led by the prosecution, learned Trial Court came to the conclusion that all the essential ingredients of Section 304B IPC were duly proved by the prosecution. Prosecution had succeeded in proving that the deceased was subjected to taunts regarding bringing of insufficient dowry and cruel treatment was accorded to her by physical beatings or mental torture. That being so, a presumption under Section 113B of the Evidence Act has to be drawn that the accused persons committed dowry death. As such, all the accused were held guilty under Section 304B IPC and were sentenced as mentioned above.
7. Feeling aggrieved by the aforesaid finding of the learned Trial Court, the present appeal has been preferred by the appellants. However, during the pendency of the appeal, one of the appellants, namely, Shri Chand expired on 19th January, 2006. Therefore, vide order dated 1st November, 2013, the appeal qua him stood abated.
8. It was submitted by Sh.K.B.Andley, learned Senior Advocate duly assisted by Sh.M.L. Yadav, Advocate for the appellant that only charge under Section 304B IPC was framed against the appellants and there was no separate charge under Section 498A IPC. So far as appellant Sarla is concerned, she is the sister-in-law of the deceased and was married at least five years prior to the marriage of the deceased with Mahavir Prasad and was residing at Palam Colony, Raj Nagar, Delhi which was about 15 k.m. away from her parental home. Only occasionally she used to visit her parental home. As such, there was no possibility of her presence on the day of incident when suicide was committed by the deceased. Deceased herself had left a suicide note wherein she had completely exonerated her husband and father- in-law. The suicide note has not been considered at all by the learned Trial Court. Immediately after the incident, no complaint was lodged by the parents of the deceased. It was only on 22nd January, 1996 father of the deceased gave a statement to the SDM which also does not reflect that there was any harassment meted out to the deceased on account of dowry. The prosecution has relied upon the testimony of father, mother and maternal uncle of the deceased who are giving different versions regarding the treatment meted out to the deceased. The allegations are quite vague and are in fact inconsistent with each other. Reference was also made to the letters handed over by father of the deceased to the police which also does not reflect any harassment to the deceased regarding demand of dowry. Moreover, there is nothing on record to show that “soon before death” there was any demand of dowry in order to bring the case within the four corners of 304B IPC. After a lapse of more than one month, statement of PW8 Kanwar Pal, maternal uncle of the deceased was recorded. It also does not inspire any confidence. As such, it was submitted that prosecution has failed to bring home the guilt of the appellants and they are entitled to be acquitted.
9. Sh. Ravi Nayak, learned Additional Public Prosecutor for the State, on the other hand, relied upon two undated distinct hand written notes recovered from the room of the deceased Saroj @ Rekha and one hand written letter, which was tied to the left forearm of the deceased and was found by Dr. Ashok Kumar for submitting that these letters are a record book of what treatment was meted out to her at her matrimonial home. If all these letters are read over, it only creates doubt regarding recovery of suicide note found on the table. He further referred to the testimony of Ved Prakash, Bimla and Kanwar Pal for submitting that their testimony remains consistent regarding harassment and treatment given to the deceased for insufficient dowry. Kanwar Pal has further deposed regarding demand of Rs.10,000/- which was soon before her death. Theappellants have not been able to rebut the presumption under Section 113B of the Evidence Act. No evidence has come from the side of the appellants that they were not present at their house when the incident took place. Post mortem report of the deceased was also referred to for submitting that the Doctor found the bladder and the rectum empty, corroborating the suggestion that the deceased was often made to sleep hungry as she has stated in the letter. Delay of one day in registration of the FIR is no ground to doubt the prosecution case as it has come in the deposition of the parents of the deceased that soon they reached the matrimonial room of their daughter, accused Mahavir and Shri Chand took father of the deceased in a corner and asked him not to make any statement to the police. Even mother was stopped by the accused Chameli Devi from entering the crowd to find out about the incident. Under the circumstances, it was submitted that the impugned judgment does not suffer from any infirmity which calls for interference. Reliance was placed on Surinder Singh v. State of Haryana, 2013 (13) SCALE 691 and Bhateri Devi & Anr. v. State of Delhi, 2013 (4) JCC 2907.
10. We have given our anxious thoughts to the respective submissions of learned counsel for the parties and have also perused the Trial Court record.
11. The dowry system is in existence from the time immemorial in different forms and in different sects of society. It having taken the form of a wide spread epidemic became a matter of concern for the State as well as the social reformatory institutions. The Legislature became alert to the urging necessity of eradicating this social evil by appropriate enactment. True it is that Legislation cannot by itself solve the deep rooted social problem and it is only the education of the society in a particular direction and the efforts of the reformative bodies that social problems can be solved, however, the Legislation has played an important role in curbing the lust of dowry hungry persons. The Legislature, as such, enacted the Dowry Prohibition Act, 1961 and introduced subsequent amendments in the provisions thereof to help the helpless weaker section of the society, i.e., the women folk from the torture and harassment, mental and physical at the hands of the husband and in laws on account of their parents being unable to quench the ever increasing thirst for the property in the form of dowry. Not only those who want to raise their status by managing to get the necessities, comforts and luxuries of life though marriage but the effluent section of the society even in certain cases has a lust for easy money or material through the institution of marriage. Thus the sacred ties of the marriage are given deplorable form and the vows taken by the husband at the alter of marriage are pushed in oblivion and continuous demand every now and then is either directly made by the husband or his relatives to the parents of the bride at the time of marriage or subsequent thereto.
12. Sec. 2 of the Dowry Prohibition Act, 1961 (hereinafter to be referred as ‘the Act’) defines the term ‘dowry’ as under:
“Sec. 2 Definition of ‘Dowry’: In this Act “dowry” means any property or valuable security given or agreed to be given either directly or indirectly-
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parents of either party to a marriage or by any other person to either party to the marriage or to any other person, at or before (or any time after the marriage) (in connection with the marriage of the said parties), but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.”
13. The insertion of the word “or any time after the marriage” and “in connection with the marriage of the said parties” by amendments in the year 1986 and 1984 respectively has significance because clever parties initially do not enter into any agreement or make a demand but subsequent to the marriage after the lapse of some period make the demand directly or through the wife in order to make a show that it is not dowry. It is for this reason that Legislation in its wisdom included subsequent demands and the things given as inclusive in the definition of “dowry”. Along with these amendments, provisions were inserted in the Indian Penal Code and in the Indian Evidence Act. Section 304B was inserted in Indian Penal Code as a new provision in the category of offences falling under sections 302, 304A and 307 IPC, in order to curb the lust of procurement of the dowry in the past marital life.
14. Section 304B reads as under:
“304B. Dowry death:Where the death of a woman is caused by any burns of bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with any demand for dowry, such death shall be called ‘dowry death’ and such husband or relative shall be deemed to have caused her death.”
Explanation-For the purpose of this sub-section “dowry” shall have the same meaning as in Sec.2 of the Dowry Prohibition Act, 1961 (28 of 1961). Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.”
15. Hon?ble Supreme Court in Sunil Bajaj v. State of MP, (2001) 9 SCC 417, after noticing the provisions of section 304B IPC had opined that in order to establish an offence u/s 304B IPC, following ingredients must be established before any death can be termed as dowry death:
(1) The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances. (2) Such death must have occurred within 7 years of her marriage.
(3) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband.
(4) Such cruelty or harassment must be for or in connection with demand of dowry.
16. This section will apply whenever the occurrence of death of a woman is preceded by cruelty or harassment by husband or in-laws for dowry and death occurs in unnatural circumstances. The intention behind this section is to fasten the guilt on the husband or in-laws though they did not in fact caused the death. It may be noticed that punishment for the offence of dowry death under Section 304B is imprisonment of not less than 7 years, which may extend to imprisonment for life, unlike under Section 498A IPC, where husband or relative of husband of a woman subjecting her to cruelty shall be liable to imprisonment for a term which may extend to three years and shall also be liable to fine. Normally, in a criminal case accused can be punished for an offence on establishment of commission of that offence on the basis of evidence, may be direct or circumstantial or both. But in case of an offence under Section 304B IPC, an exception is made by deeming provision as to the nature of death as “dowry death” and that the husband or his relative, as the case may be, is deemed to have caused such death, even in the absence of evidence to prove these aspects but on proving the existence of the ingredients of the said offence by convincing evidence. Hence, there is need for greater care and caution, that too having regard to the gravity of the punishment prescribed for the said offence, in scrutinizing the evidence and in arriving at the conclusion as to whether all the above mentioned ingredients of the offence are proved by the prosecution.
17. Section 113B of the Evidence Act is also relevant for the case in hand. Both Section 304-B IPC and Section 113B of the Evidence Act were inserted by Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113 B of the Evidence Act, 1872 reads as under:-
“113B. Presumption as to dowry death.- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation.- For the purposes of this section, “dowry death” shall have the same meaning as in Section 304B of the Indian Penal Code (45 of 1860)”
18. As per the definition of “dowry death” in Section 304B Indian Penal Code and the wording in the presumptive Section 113B of the Evidence Act, one of the essential ingredients amongst others, in both the provisions is that the woman concerned must have been ‘soon before her death’ subjected to cruelty or harassment “for or in connection with the demand for dowry”. While considering these provisions, Hon?ble Court in M. Srinivasulu v. State of A.P., (2007) 12 SCC 443 has observed thus:
“8.4… The presumption shall be raised only on proof of the following essentials:
(1) The question before the court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B Indian Penal Code.) (2) The woman was subjected to cruelty or harassment by her husband or his relatives.
(3) Such cruelty or harassment was for, or in connection with any demand for dowry.
(4) Such cruelty or harassment was soon before her death.”
19. A perusal of Section 113B of the Evidence Act and Section 304B Indian Penal Code shows that there must be material to show that “soon before her death” the victim was subjected to cruelty or harassment. In other words, the prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the “death occurring otherwise than in normal circumstances”. The prosecution is obliged to show that soon before the occurrence, there was cruelty or harassment and only in that case presumption operates.
20. Adverting to the case in hand, as regards the first ingredient that the death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances, the prosecution has examined Dr. Ashok Jaiswal (PW1) who conducted the post mortem on the dead body of the deceased Saroj and proved reports Ex. PW1/A and Ex.PW1/B opining that the death was due to ante mortem hanging caused by ligature found tied around neck. In cross- examination, he could not rule out the possibility of suicide. The fact that death of Saroj has taken place due to hanging also stands proved from the testimony of PW2 Dilip, PW3 Inderjeet and PW5 ASI Shekhar Lal, PW7 Bimla, PW10 Ved Prakash and PW13 Constable Umed Singh. A suicide note Ex. PW2/B was also found wherein the deceased has stated that she is committing suicide. The factum of committing suicide by the deceased is not even disputed by the accused. Under the circumstances, it stands proved that Saroj @ Rekha had committed suicide. Suicide committed by a woman comes within the purview of Section 304B IPC as it is also a case of death which does not occur under normal circumstances. As such, it is proved that Saroj @ Rekha died “otherwise than under normal circumstances”.
21. It is also undisputed case of the parties that the marriage of the deceased had taken place with the accused Mahavir on 7th May, 1995 and the unfortunate incident has taken place on 20th January, 1996, i.e., within eight months and 13 days of the marriage. As such, the first two ingredients mentioned above are satisfied.
22. We now have to see whether the third ingredient is also satisfied by looking at the evidence on record.
23. Out of 16 witnesses examined by the prosecution, material witnesses in this regard are PW7 Smt. Bimla, PW8 Kanwar Pal and PW10 Ved Prakash, mother, maternal uncle and father respectively of the deceased.
24. PW7 Smt. Bimla, mother of the deceased has deposed that after marriage her daughter Saroj started living at her matrimonial home at Tilak Nagar. Sufficient dowry was given in the marriage according to her status and capacity despite that all the accused persons used to taunt her for insufficient dowry which fact was stated to her by her daughter after two months of the marriage when she came to her house. Her daughter informed her that she was being taunted for bringing less dowry and no articles for the in-laws. She was also beaten up by all the accused persons for bringing insufficient dowry. These facts were disclosed by her on the occasion of Bhaiya Dooj and Raksha Bandhan when she came to her house. On 18th January, 1996, Chameli Devi, mother-in-law of the deceased came to her house in order to greet her as she was going to be the grandmother. She reciprocated the same. However, on 20th January, 1996, Bittoo, s/o Mohinder came to her and informed that condition of her daughter was not good. As such, she rushed to house of her daughter along with her husband and found a crowd and police officials and foundher daughter hanging with a ceiling fan in a room. In cross- examination, she admitted that she did not state to the police that she was informed by her daughter that she was taunted and beaten up due to insufficient dowry.
25. PW8 Kanwar Pal is the maternal uncle of the deceased and has deposed that he had visited the matrimonial home of his niece Saroj two three times after her marriage. On 13th January, 1996 he had gone to the house of deceased Saroj on the occasion of Sakranti. At that time, Saroj told him that her in-laws were demanding Rs.10,000/- on account of construction of shop which was demolished earlier and that her mother-in-law, sister-in-law used to give beatings to her. He informed this fact to father of the deceased on 15th January, 1996 at his residence. In cross-examination, he stated that after 1½ -2 months of the marriage, he had gone to meet Saroj. At that time, she told that in the neighbourhood, in the marriage of someone, colour TV and scooter was given in dowry. Sister-in-law of the deceased also told him “Kallo ne kaha ki meri bhabhi bahut achhi hain magar pados mein kisi ki shadi mein colour TV aur scooter milla hai.” He, however, admitted that this fact was not stated by him to the police when his statement was recorded on 17th February, 1996. As regards demand of Rs.10,000/-, he could not say who demanded this amount.
26. PW10 Ved Prakash is the father of the deceased. He has also deposed that enough dowry was given by him at the time of marriage as per his capacity. At the time of marriage or soon thereafter, there was no complaint from any of the accused person in regard to dowry. However, after about 2 months of marriage, when he visited his daughter at her matrimonial home, at that time, she told him that her in-laws have started teasing her for insufficient dowry after marriage in their neighbourhood had taken place in which the bride side had given enough dowry such as colour TV, scooter etc. On the occasion of Raksha Bandhan when his daughter visited him, at that time, she also narrated that she was being frequently beaten up by the accused persons. After 4-5 days he talked to accused Shri Chand in order to know their grudge but he did not disclose any such thing. On the eve of Sakranti, his brother-in law (Kanwar Pal) had gone to his daughter?s house to present customary gift. On 15th January, 1996, Kanwar Pal came and told him that when he visited his daughter, she was weeping bitterly and stated that her in-laws were demandingRs.10,000/- for constructing a shop for Mahavir and for that reason, she was being regularly beaten up by all the accused. On 18th January, 1996, accused Chameli, mother-in-law of his daughter came to his house and congratulated them for becoming prospective grand parents of a baby, however, on 20th January, 1996 at about 8:30 pm, a boy, namely, Bittoo came and informed that condition of his daughter was not well. As such, he along with his wife went to Tilak Nagar. On reaching the matrimonial home, they found that there was a crowd and police officials were also present. As soon as he got down from the scooter, he was taken in a nearby room by accused Shri Chand and Mahavir and was threatened that in case any wrong statement is made before the police then he would be beaten up and would also be involved in a false case and that he would also be hanged as his daughter had been done to death. Thereafter, he was taken to the room of his daughter where he saw his daughter hanging with a ceiling fan. Next day, number of persons visited the house of accused persons in order to see the room in which his daughter was murdered. When they entered the room a small child picked up a paper lying underneath a bed and gave it to his wife who passed it to him. When he got that letter read from his son Mukesh then, it was revealed that his daughter has alleged ill-treatment by her in-laws. He became suspicious and gave photocopy of the paper Ex. PW5/A to the Police. Thereafter, he lodged a complaint Ex.PW10/A with the Police. In cross-examination, he could not say if he had stated to the SDM who recorded his statement that he was informed by Kanwar Pal on 15 th January, 1996 that demand of Rs.10,000/- is being made for construction of a shop for Mahavir.
27. On being informed about the incident, on 22nd January, 1996, PW14 Sh. K.K.Dahia, the then SDM, Punjabi Bagh recorded the statement of Ved Prakash, Ex.PW10/B and directed registration of the case. A perusal of the statement Ex.PW10/B which became the bed rock of investigation reveals that it was alleged that after two months of the marriage, his daughter informed him that the accused persons taunted her that her father had not given anything in the marriage, although in the neighbourhood, a marriage had taken place where the girl?s side had given a colour TV and scooter. No direct demand was made from his daughter, by her in-laws but they used to taunt. Her mother-in-law also used to beat his daughter.
28. A perusal of the aforesaid evidence led by the prosecution goes to show that the allegations are quite vague, unspecific and uncertain. The witnesses themselves have deposed that no demand was made directly by any of the accused persons either from the deceased or from them. The allegations are confined to the fact that a marriage has taken place in the neighbourhood in which the bride had brought colour TV and scooter and the deceased used to be taunted on that account. Even regarding these facts, there is material improvement in the testimony of the witness, inasmuch as, mother of the deceased admitted in her cross-examination that she did not state to the police that her daughter informed her regarding insufficient dowry or taunts and beatings given by the accused persons when she came to her house on the occasion of Bhaiya Dooj and Raksha Bandhan. As far as Ved Prakash is concerned, he has specifically deposed that either at the time of marriage or soon thereafter, there was no complaint from any of the accused persons with regard to dowry. He has also deposed that after the marriage in the neighbourhood where colour TV and scooter was given in dowry, his daughter used to be teased by her in- laws. Even at this juncture, there is no allegation that any demand was made from the deceased or her parents for bringing any dowry article. He has, however, gone on stating that his brother-in-law Kanwar Pal had gone to the house of his daughter on the occasion of Sakranti to give customary gifts, at that time, his daughter informed him that her in-laws were demanding Rs.10,000/- for constructing a shop for Mahavir. However, this part of the testimony was a clear improvement as he was confronted with his statement Ex.PW10/DA where this fact was not mentioned. It is pertinent to note that even when his statement was recorded by the SDM, at that time also, it was not disclosed by him that his brother-in-law informed him that demand of Rs.10,000/- for construction of shop for Mahavir was made by the accused persons.
29. From the evidence on record, it is clear that there was no evidence of demand of dowry or subjecting Saroj to cruelty for or in connection with demand of dowry other than general and vague statements of the parents and maternal uncle of deceased.
30. Moreover, to bring home the guilt of the accused within the four corners of section 304B IPC, it is incumbent upon the prosecution to prove that “soon before her death” deceased wassubjected to cruelty or harassment by her husband or in laws. The expression “soon before death” has not been defined and the legislation has not specified any time which would be the period prior to death that would attract the provisions of section 304B IPC. In Sunil Bansal v. State of Delhi, 2007(7) AD Delhi 780, it was observed as under:
“Though there is no thumb rule as to what is meant by the expression “soon before” death of a woman u/s 304B IPC despite substantial flexibility, the charge cannot be maintained, if the acts are remote in point of time. Hon’ble Supreme Court has held in Kaliya Perumal v. State of Tamil Nadu, AIR 2003 SC 3828 and Yashoda v. State of M.P., 2004 III AD 305:2004 (3) SCC 98 that there should not be too much of the time lag between cruelty and harassment in connection with demand of dowry and the death in question. It was also held that there must exist a proximate and live link between the effect of cruelty based on dowry demands and death of the woman. The Court held that if the alleged incident of cruelty is remote in time and has become stale, not to disturb mental equilibrium of the woman, it would be of no consequence.”
31. It seems that PW 8 Kanwar Pal has been introduced in order to make out a case that “soon before her death”, the deceased was harassed on account of dowry demands as according to him, on 13 th January, 1996, he had gone to the house of Saroj when she informed him about the demand of Rs.10,000/-. It is pertinent to note that although the unfortunate incident has taken place on 20 th January, 1996, but statement of this witness was recorded by the Police undersection 161 Cr. P.C. for the first time on 7th February, 1996.
32. There are catena of decisions that if the statement of the witness is not recorded on the date of incident or within reasonable time then, it has to be viewed with caution. To cite a few Paramjit Singh v. State of Punjab, 1997 (4) SCC 156; Jagjit Singh v. State of Punjab, (2005) 3 SCC 689; Maruti Rama Naik v. State of Maharashtra, (2003) 10 SCC 670; Harjinder Singh @ Bhola v. State of Punjab, (2004) 11 SCC 253; Prem Narain and Anr. v. State of Madhya Pradesh, (2007) 15 SCC 485.
33. It is not the case of prosecution that this witness was not available to the Investigating Officer of the case. No explanation whatsoever has been given by the Investigating Officer as to why the statement of this witness was not recorded earlier. Under the circumstances, his statement has to be viewed with caution. Moreover, if he had disclosed about the harassment to the deceased for demand of Rs.10,000/- for construction of a shop for Mahavir to her father Ved Prakash on 15th January, 1996 itself, there is no reason as to why this crucial fact was not disclosed by PW 10 Ved Prakash in his statement Ex.PW10/B made before the SDM. Testimony of PW7 Bimla, mother of the deceased is conspicuously silent in regard to any such demand. Moreover, in Appasaheb and Anr. v. State of Maharashtra, AIR 2007 SC 763 it was held by the Supreme Court that in order to bring the case within the four corners of Section 498- A IPC, any property or valuable security should be given or agreed to be given, either directly or indirectly, on or before or any time after the marriage and in connection with marriage of the said parties. Giving or taking of property or valuable security must have some connection with marriage, which is essential. Demand for money on account of some stringency or meeting some urgent domestic expense cannot be termed as demand for dowry. In Sanju v. State, 2009(164) DLT 459 demand of Rs.50,000/- by the appellant for his business from the father and mother of the deceased was held not to fall under demand of dowry as defined under Section 2 of Dowry Prohibition Act as demand is not made in relation to marriage. Besides that, there are general, vague and inconsistent statements of interested witnesses PW7, PW8 & PW10 being the parents and maternal uncle of the deceased which are not sufficient to establish essential ingredients of Section 304B IPC.
34. On the other hand, PW3 Inderjeet, PW4 Rajinder Singh and PW9 Smt. Sapna, used to live in the neighbourhood of the deceased and all these witnesses have deposed that they have never seen the accused persons causing any harassment or torture to the deceased for demand of dowry nor any dowry was ever demanded in their presence. The accused persons had also examined DW1 Anand and DW2 Raghuvir Singh, neighbours, both of whom have also deposed that the deceased was kept well by the accused persons and was never harassed on account of dowry.
35. Coming to the documentary evidence, it is the admitted case of the parties that a suicide note Ex. PW2/B was found lying on a table which was seized vide seizure memo Ex.PW2/A. A perusal of this suicide note goes to show that the deceased has completely exonerated her husband and father-in-law and has taken the responsibility of committing suicide on her own.
36. Learned Public Prosecutor for the State, however, relied upon three undated distinct hand written notes, two of them were recovered from the room where the deceased Saroj @ Rekha died by hanging and the third was tied to the left forearm of the deceased. The two handwritten notes found from the room out of which one was lying on the table marked as Ex.PW2/B and recovered in the presence of Dalip (PW2) and Inderjeet (PW3), neighbours of the accused persons. In another similar hand written letter Ex.PW5/C which was found under the bed of the deceased wherein she stated about the physical abuse meted out to her and laments that it was because of her poor background and the fact that she could not bring enough dowry, that she was treated that way. Then the third hand written letter was the 3 page letter written by the deceased, marked as Ex.PW1/A, addressed to her father which was tied to left forearm of the deceased and found by Doctor Ashok Kumar PW1 and in this letter the deceased had stated that by the time this letter would be read, she might be dead. It was submitted that these letters narrate the ordeals to which deceased was subjected to even for regular living necessities such as a sweater where she was taunted to bring her clothes from her parents, she was not fed properly and often slept without food at night. If all these letters are read, it creates doubt over the recovery of suicide note found on the table. It was further submitted that the other two similar undated hand written letters of the deceased highlight the plight of the deceased and showed the circumstances in which she was staying at her matrimonial place and particular attention was brought to third line from the top where she writes about her mother- in-law “jab se aayi hai, yahi kapde dali hai, apne ghar se kuch nahi layi” and at the top five lines where she writes about her husband that he does not even talk about her food and eats himself without even asking her and she remained hungry for several nights and finally the deceased writes about the slaps given to her which she attributes mainly because of her poor background and also because she could not get sufficient dowry. It was submitted that all these show the harassment and constant mental cruelty in the form of taunts and instances of physical cruelty in the form of slaps.
37. Learned senior counsel for the appellant, on the other hand, submitted that these letters do not reflect any demand of dowry or harassment to the deceased on that account.
38. A perusal of the letter Ex.PW5/C goes to show that it is written that:-
“Papaji aap hi bataiye ki meri galti kya hai. Mai peechhe baith kar kapde dho rahi thi. Mammi ne darwaaza khatkhataya tha. Mujhe aawaz nahi aayi kyonki peechhe tape wagairah chal rahi thi. Baad mei aawaz aane par maine jab darwaza khola, to mammi ne bina soche samjhe 2-3 haath rakh diye, baad mei chappal bhi nikaal li tatha bura bhala mere ghar waalo ko bhi bola. Akhir mein kab tak bardasht karein. Mere din baar ke bolne par hi beizzati ho gai. Kya hamari koi izzat nahi hai jo har koi mere upar haath uthate hain. Mai garib ghar ki hu na. Yadi dahej mei achha laati to shayad yeh sab na hota.”
39. In the other letter, she has referred to the comments made on her clothes. That, at best, can be termed to be discord and difference in domestic life which is quite common in the society to which the victim belonged but the same fall short of proving that the deceased has been subjected to cruelty or harassment „for or in connection with the demand of dowry?.
40. In these letters, there is no reference of any demand of dowry by any of the appellants. Had there been any demand of dowry or demand of Rs.10,000/- for reconstruction of shop of Mahavir, deceased would have certainly commented upon the same in the aforesaid exhibits. This creates a serious doubt about the version of PW7, PW8 and PW10 regarding harassment of deceased by her husband and in-laws on account of demand of dowry.
41. With this evidence on record, it is clear that:-
(i) There is no evidence of demand of dowry or subjecting Saroj to cruelty for or in connection with dowry other than general, vague and inconsistent statement of interested witnesses, PW 7, 8 & 10, being the parents and maternal uncle of the deceased.
(ii) Not a single neighbour has come forward to speak about subjecting Saroj to cruelty by the appellants in relation to demand of dowry.
(iii) According to the parents of the deceased , there was no demand of dowry either at the time of marriage or even thereafter. There was no specific demand made by any of the appellants either from the deceased or from them.
(iv) The suicide note completely exonerates the husband and father-in-law and does not inculpate mother-in-law and sister-in-law.
(v) The letters Ex.PW1/A, Ex.5/B and Ex.5/C written by the deceased make mention of normal wear and tear of life but no mention was made about the demand of dowry or harassment meted out to her in connection with dowry.
(vi) PW7, PW8 & PW10, on account of Saroj having committed suicide, obviously were angry with the appellant and had every reason to involve them for offence under Section 304B IPC.
(vii) It is very unfortunate that within eight months of the marriage, Saroj had taken the extreme step of committing suicide but what exactly prompted her to take this extreme step has not surfaced.
42. Presumption under Section 113B of the Evidence Act can be drawn only when prosecution first establishes the essential ingredients of Section 304B IPC. Since the evidence falls short of proving the essential ingredients to Section 304B IPC, question of drawing presumption against the accused under Section 113B does not arise. The learned Trial Court fell in error in concluding that the appellants were guilty of offence when the crucial and necessary ingredient that deceased Saroj was subjected to cruelty and harassment soon before her death was not proved looking to the evidence and circumstances cumulatively. Therefore, the findings of learned Trial Court cannot be sustained.
43. The charge sheet was submitted under Sections 498-A/304-B IPC, however, no separate charge for an offence under Section 498-A IPC was framed. It is, however, a settled proposition of law that mere omission or defect in framing of charge would not disentitle the Court from convicting the accused for the offence which has been found to be proved on the basis of the evidence on record. In such circumstances, the matter would fall within the purview of Section 221(1) and (2) of the Code of Criminal Procedure, 1973. In M. Srinivasulu (supra), it was held by Supreme Court that a person charged and acquitted u/s 304B IPC can be convicted u/s 498A IPCwithout that charge being there, if such a case is made out. That being so, it is to be seen as to whether offence under Section 498-A IPC is made out of not. Section 498-A reads as under:-
“498A. Husband or relative of husband of a woman subjecting 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 purpose of this section, “cruelty” means–
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”
44. A bare reading of Section 498-A goes to show that the term cruelty which has been made punishable under the Section, has been defined in the explanation appended to the said section. Therefore, the consequences of cruelty, which are either 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 harassment of the woman where such harassment is with a view to coerce 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, are required to be established in order to prove an offence under Section 498 IPC.
45. Turning to the case at hand, as seen above, there is absolutely no allegation that either any demand of dowry was made from the deceased or from her parents. The allegations are confined to the taunts given to the deceased by comparing the dowry articles brought by the bride in the neighbourhood. It was also alleged that a sum of Rs.10,000/- was demanded for re-construction of shop of appellant- Mahavir which in view of the discussion made above does not come within the purview of demand in relation to marriage.
46. Even as per the letters, the beatings given to her are attributed to her mother-in-law alone. As stated above, in the suicide note, she has completely exonerated her husband and father-in-law whereas no allegations have been made against the mother-in-law and sister-in- law. Even the letters do not make a mention about any ill treatment to the deceased by her sister-in-law who undisputedly was married much prior to the marriage of the deceased with Mahavir and was living in her matrimonial home. As such, at the most, the allegations may tantamount to causing physical or mental cruelty upon the deceased under Part (b) of the Section by the mother-in-law, therefore, the allegations at the most are confined to Chameli Devi, mother-in-law of the deceased. However, as per the nominal roll, she remained in custody for a period of 3 years, 7 months and 15 days. The punishment prescribed under Section 498A IPC extends to three years only. Under the circumstances, even if it is held that Chameli Devi is guilty of offence under Section 498A IPC then she is entitled to be released on the period already undergone.
47. Keeping in view the fact that Saroj has committed suicide within seven years of marriage, it may also be seen whether any case u/s 306 IPC is made out. Section 306 IPC provides that if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment which may extend to ten years and with fine.
48. Section 107 IPC defines “abetment” which reads as under :
“S.107. A person abets the doing of a thing, who First– Instigates any person to do that thing; or Secondly– Engages with one or more other person or 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; or Thirdly– Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation.1- A person who, by willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
Explanation.2 – Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act.”
49. This section has to be read with section 113A of Evidence Act, 1872 which reads as under:-
“When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband has subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
Explanation.- For the purposes of this section, “cruelty” shall have the same meaning as in section 498A of the Indian Penal Code (45 of 1860)”.
50. A perusal of this section goes to show that any person, who abets commission of suicide, is liable to be punished under section 306 IPC. Section 107 IPC lays down ingredients of abetment, which includes instigating any person to do a thing or engaging with one or more persons in any conspiracy for the doing of a thing, if an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of that thing, or intentional aid by any act or illegal omission to the doing of that thing. As per definition of abetment as laid down u/s 107 IPC, there has to be instigation to commit suicide on behalf of the accused persons.
51. In Sanju @ Sanjay Singh Sengar v. State of M.P., (2002) Cri.LJ. 2796, it was observed:
“Where suicide was not the direct result of the quarrel when the appellant used abusive language and told the deceased to go and dies, no offence u/s 306 IPC is made out.”
52. In Kishori Lal v. State of M.P., (2007) 10 SCC 797, it was observed :-
“Mere fact that the husband treated the deceased wife with cruelty is not enough to bring the case within the parameter of Section 306 IPC.”
53. In the absence of direct evidence, it is to be seen whether presumption u/s 113 A of Indian Evidence Act can be drawn or not.
54. Unlike section 113B of the Indian Evidence Act, a statutory presumption does not arise by operation of law merely on proof of the circumstances enumerated in section 113A of the Indian Evidence Act. Under section 113A of the Indian Evidence Act the prosecution has to first establish that the woman concerned committed suicide within a period of seven years from the date of her marriage and that her husband and in-laws (in this case) had subjected her to cruelty. Even if these facts are established, the Court is not bound to presume that the suicide had been abetted by her husband. Section 113A gives a discretion to the Court to raise such a presumption, having regard to all the other circumstances of the case, which means that where the allegation is of cruelty it must consider the nature of cruelty to which the woman was subjected, having regard to the meaning of word cruelty in section 498A IPC. The mere fact that a woman committed suicide within seven years of her marriage and that she had been subjected to cruelty by her husband and in-laws does not automatically give rise to the presumption that the suicide had been abetted by her husband and in-laws. The Court is required to look into all other circumstances of the case. One of the circumstances which has to be considered by the Court is whether the alleged cruelty was of such nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman. The law has been succinctly stated in Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618 wherein Hon’ble Supreme Court observed :-
“This provision was introduced by the Criminal Law (Second) Amendment Act, 1983 with effect from 26.12.1983 to meet a social demand to resolve difficulty of proof where helpless married women were eliminated by being forced to commit suicide by the husband or in laws and incriminating evidence was usually available within the four corner of the matrimonial home and hence was not available to anyone outside the occupants of the house. However, still it cannot be lost sight of that the presumption is intended to operate against the accused in the field of criminal law. Before the presumption may be raised, the foundation thereof must exist. A bare reading of Section 113A shows that to attract applicability of section 113A, it must be shown that (i) the woman has committed suicide, (ii) such suicide has been committed within a period of seven years from the date of her marriage, (iii) the husband or his relatives, who are charged had subjected her to cruelty. On existence and availability of the abovesaid circumstances, the Court may presume that such suicide had been abetted by her husband or by such relatives of her husband. Parliament has chosen to sound a note of caution. Firstly, the presumption is not mandatory; it is only permissible as the employment of expression “may presume” suggests. Secondly, the existence and availability of the above said three circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be drawn the Court shall have to have regard to “all the other circumstances of the case”. A consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the Court to abstain from drawing the presumption. The expression “the other circumstances of the case” used in Section 113A suggests the need to reach a cause and effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least, the presumption is not an irrebuttable one. In spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. The phrase “may presume” used in section 113Ais defined in section 4 of the Evidence Act, which says “Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it”.
30. In the State of West Bengal v. Orilal Jaiswal and anr., (1994) 1 SCC 73, Hon’ble Apex Court observed :-
“We are not oblivious that in a criminal trial the degree of proof is stricter than what is required in a civil proceedings. In a criminal trial however intriguing may be facts and circumstances of the case, the charges made against the accused must be proved beyond all reasonable doubts and the requirement of proof cannot lie in the realm of surmises and conjectures. The requirement of proof beyond reasonable doubt does not stand altered even after the introduction of section 498A IPC and section 113A of the Indian Evidence Act. Although, the Court’s conscience must be satisfied that the accused is not held guilty when there are reasonable doubts about the complicity of the accused in respect of the offences alleged, it should be borne in mind that there is no absolute standard for proof in a criminal trial and the question whether the charges made against the accused have been proved beyond all reasonable doubts must depend upon the facts and circumstances of the case and the quality of the evidence adduced in the case and the materials placed on record. Lord Denning in Bater v. Bater, 1950 (2) All ER 458, 459 has observed that the doubt must of a reasonable man and the standard adopted be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject matter”.
55. In Gangula Mohan Reddy v. State of Andhra Pradesh, (2010) 1 SCC 750, Hon?ble Supreme Court, observed as under:-
“In State of West Bengal v. Orilal Jaiswal & Ors (1994) 1 SCC 73, this Court has cautioned that the Courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.”
56. In Mahendra Singh v. State of MP, 1995 SCC (Cri) 1157, Hon?ble Supreme Court observed that it is common knowledge that the words uttered in a quarrel or in spur of moment or in anger cannot be treated as constituting mens rea. In the said case, appellant said to the deceased to “to go and die” and as a result of such utterance, the deceased went and committed suicide, however, Hon?ble Supreme Court observed that no offence under Section 306 IPC read with Section 107IPC was made out since there was no element of mens rea.
57. In Bhagwan Das v. Kartar Singh & Ors., (2007) 11 SCC 205, it was held that quite often there are disputes and discord in the matrimonial home and wife is harassed by husband or by her in-laws, this, however, would not by itself and without something more attract Section 306 IPC read with Section 107 IPC.
58. Substantially similar view was taken by this Court in Shailender v. State, 169 (2010) DLT 563.
59. In the instant case, there is no averment in the statement of the witnesses that any of the accused instigated the deceased to commit suicide. There is no direct evidence to establish that any of the accused either aided or instigated the deceased to commit suicide or entered into any conspiracy to aid her in committing suicide. From a reading of the contents of hand written letter, Ex.PW5/B, it appears that some utterances used to be made by mother-in-law of the deceased which was not to her liking and she used to remain disturbed because of that. However, no evidence has come on record to suggest that such utterances were made wilfully and intentionally in order to instigate the deceased in taking extreme steps of ending her life. Rather it has come on record that after Saroj conceived, family members were very happy. In fact on 18th January, 1993, Chameli Devi, mother-in-law of the deceased visited her parents? house to congratulate them as they were going to become grand parents of a child. In the facts of this case, prosecution has been unsuccessful in proving that there was element of mens rea on the part of the accused,accordingly, in our view, ingredients of evidence under Section 306 IPC r/w Section 107 IPC are not attracted. As observed in Smt. Bisno v. State, 2011 II AD (Delhi) 501, there is always a reason behind an act committed by a person. Committing of suicide by deceased by hanging herself, that too within eight months of the marriage does raise a suspicion that everything was not normal. This suspicion, however, cannot be a substitute for the proof of dowry demand or subjecting the deceased to harassment and cruelty, i.e., the requisite ingredients which constitute the offence under Section 498-A, 304-B IPC or 306 IPC.
60. Adverting to the facts of the case, although it is established that marriage of Saroj with Mahavir had taken place on 7 th May, 1995 and she has committed suicide within eight months of the marriage, however, none of the three material witnesses examined by the prosecution proved the allegations of demand of dowry and infact the deceased herself gave a clean chit to accused Mahavir and Shri Chand and in the suicide note she does not level any allegation even against her mother-in-law and sister-in-law.
61. It is a cardinal principle of criminal jurisprudence that the guilt of the accused is to be established by the prosecution beyond the possibility of any reasonable doubt. Even if there may be an element of truth in the prosecution story against the accused but considered as a whole there is invariably a long distance to travel and whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted. Similar view was taken in Sarwan Singh Rattan Singh v. State of Punjab AIR 1957 SC 637; Anil W.Singh v.State of Bihar, (2003) 9 SCC 67; Reddy Sampath W. v. State of A.P, (2005) 7 SCC 603 and Ramreddy Rajesh Khanna Reddy v. State of A.P., (2006) 10 SCC 172.
62. In the instant case, prosecution has failed to bring home the guilt of the accused persons beyond reasonable doubt. That being so, they are entitled to benefit of doubt.
63. Under the circumstances, appeal is allowed. Impugned judgment and order on sentence dated 16 th October, 1999 and 23rd October, 1999 respectively are set aside and the appellants are acquitted of the offence alleged against them. Their bail bonds are cancelled and sureties are discharged.
Intimation be sent to the concerned Superintendent Jail. Trial Court record be sent back forthwith along with copy of the judgment.
(SUNITA GUPTA) JUDGE
(KAILASH GAMBHIR) JUDGE MAY 16, 2014