Patna High Court
Amarjit Singh @ Awadhesh Singh & Anr vs State Of Bihar on 1 October, 2010
Author: C.M. Prasad
Bench: C.M.Prasad
CRIMINAL APPEAL No. 578 OF 2006
(Against the Judgment of conviction and sentence dated 13.06.2006
of the Addl. Sessions Judge, F.T.C. IV, Katihar passed in Sessions
Trial No. 157 of 2003/190 of 2004)
1. AMARJIT SINGH @ AWADHESH SINGH,
2. CHHOTU @ PRITAM SINGH @ CHHOTU SINGH,
Both sons of Thithar Singh @ Ram Singh, r/o. Village-
Sadalpur, P.S. Rautra, Distt. Katihar.
-------------------------(Appellant)
Versus
THE STATE OF BIHAR------------------------------------(Respondents)
-------------
PRESENT
THE HON'BLE MR. JUSTICE C.M.PRASAD
Coursel for the Appellants: Mr. Rajiv Ray, ................ Advocate.
Mr. Bidhanesh Mishra,.....Advocate,
Mrs. Tanuja Mishra, .......Advocate,
Mr. Rajendra Jha, ............Advocate,
Counsel for the Informant: Mr. Rajendra Prasad Sah, Advocate.
Mr. Ajay Kumar Verma, ...Advocate.
Counsel for the State: Mr. S.N. Prasad, ............. Addl. P.P.
C.M. Prasad, J. This appeal is against the judgment dated
13.06.2006of the Addl. Sessions Judge, F.T.C. No. IV, Katihar passed in Sessions Trial No.157 of 2003/190 of 2004, whereby the two appellants have been convicted under Sections 304B and 328 of the I.P.C. and respectively sentenced to undergo R.I. for ten years, R.I. for ten years and fine of Rs.500/-, in default of payment of fine to undergo S.I. for three months.
2. It has to be mentioned that besides the two appellants the F.I.R. was also lodged against Ratan Kaur, the mother-in-law of the deceased but she remained absconding, therefore, only these two 2 appellants were put on trial. Appellant Amarjit Singh @ Awadesh Singh is the husband of the deceased Sukhmini kaur. Appellant Chhotu @ Pritam Singh @ Chhotu Singh is the younger brother of Amarjit Singh.
3. The place of occurrence as revealed in the F.I.R. is the matrimonial house of the deceased in village Sadalpur situated at a distance of 3 Kms. west of Rohtara P.S. within the district of Katihar. The date of occurrence is 15.08.2001 at 7.00 p.m. The informant Sardar Sanjeet Singh (P.W.3) is the elder brother of the deceased. The fardbeyan was recorded by P.W.8, S.I. M.P. Gupta on the statement of the informant at the Sasural House (matrimonial house) of the deceased on 16.08.2001 at 11.00 a.m. On the basis of the fardbeyan, the F.I.R. was registered on 17.08.2001 at 9.00 a.m. at Rohtara P.S.
4. As to the documents proved in the case, Ext-1 is the letter dated 07.12.1997 send by the deceased to her father mentioning about the torture and harassment caused to her at the hands of the husband and the mother-in-law. Ext-2 is the compromise bond entered into between the parties in the year 1998 in Complaint Case No. C.A. 68 of 1998 under Section 498A I.P.C., which had been filed by the deceased against the husband and other in-laws. Ext- 3 3 is the fardbeyan, Ext-3/1, 3/2 and 3/3 are the signatures of the witnesses on the compromise bond. Ext-4/1 is the inquest report of the dead body of the deceased. Ext-5 is the post mortem report of the deceased. Ext-6 is the signature of the Director of the F.S.L., Muzaffarpur. Regarding the chemical examination of the viscera of the deceased, the F.S.L. report mentions that Aluminium Phosphide was detected in the dark brown fluid i.e. the Viscera and that Aluminium Phosphide commonly known as "CELPHOS" is a severe gastro intestinal irritant and that it is used as grains preservative and is highly poisonous. The defence proved Ext-A which is the certified copy of complaint No. 68 of 1998 as filed by the deceased/complainant in Complaint Case No. C.A. 68 of 1998. The date of marriage of the deceased with the appellant Amarjit Singh has been specifically mentioned as 22nd June 1994 in the complaint petition.
5. The prosecution case as stated in the fardbeyan by the informant (P.W.3) recorded on 16.08.2001 at 11.00 a.m. at the door of appellant Amarjit Singh was that his sister Sukhmini Kaur was married to appellant Amarjit Singh (appellant) six years ago. She got two issues, who were aged 3 years 4 and one month. The informant further stated that after marriage she was being pressurized for bringing Rs.25,000/- and articles from her parents and she was threatened that she will be ousted from her Sasural or killed by poisoning if the demand was not fulfilled. In the meantime, on 13.01.1998 his sister (deceased) was ousted from her matrimonial house then Complaint Case No. 68 of 1998 was lodged on 28.01.1998 but the case was compromised and the Sasural people assured not to harass her further and thereafter they took her to the matrimonial house.
It was on that date i.e. 16.08.2001 at 4.00 p.m. that his relative Virendra Singh (P.W.5, informant‟s Mausera brother) informed on telephone that on 15.08.2010 at 5.00 p.m. the Sasural people had poisoned his sister (deceased) to death. Then he (informant) went there and he found her in dead condition. He claimed that Sardar Amarjit Singh (appellant/husband), Chhotu @ Pritam Singh (Debar) and Ratan Kaur (mother-in-law) killed his sister (deceased) by assaulting and poisoning for dowry.
6. As many as ten witnesses were examined by prosecution. Four defence witnesses were also examined by the accused/appellants. P.W.1 Sardar Kishan Singh is the father of the deceased. P.W. 2, 5 Sardar Madan Singh is the Mausa of the deceased. P.W.3, Sardar Sanjeet Singh, the elder brother of the deceased is the informant. P.W.4 Sardar Shailendra is the younger brother of the deceased. P.W.5 Birendra Singh is the Mausera brother of the deceased. P.W.6 Sukhdeo Singh has turn hostile to the prosecution. P.W.7 Dr. Arun Kumar Choudhary had conducted post mortem examination of the deceased. P.W.8 Mahesh Prasad Gupta is the Investigating Officer. P.W.9 Surendra Kumar Saroj, who had registered the F.I.R., is the Officer-in-Charge of the concerned P.S. P.W.10 Md. Ayub is the Technician of the RFSL Muzaffarpur, who proved the writings and signatures of the Director on the F.S.L. report marked as Ext-6. The four defence witnesses namely, D.W.1 Ramu Choudhary, D.W.2 Budhi Risi, D.W.3 Sardar Sewa Singh, and D.W.4 Tala Hembrum were examined to prove the date of the marriage of the deceased as 22.06.1994 vide Ext-A. The defence witnesses also tried to say about the defence version that any torture or harassment was not caused to the deceased at the hands of the accused/appellants.
7. The informant deposed on 19.03.2005 that the marriage of the deceased with Amarjit Singh was solemnized in the year 1993 but he did not 6 disclosed the exact date of marriage. He said that the accused persons demanded money and articles in dowry and the conjugal life of the deceased never remained happy. He said about the filing of the complaint case earlier due to torture and harassment committed earlier for non-fulfillment of demand of money in dowry and he also stated about the compromise in the Complaint Case No. 68 of 1998. At para-4 of his evidence he proved Ext-2, the compromise petition filed by the appellant Amarjit Singh in the said complaint case. The appellant Amarjit Singh and the witnesses had signed on the compromise. At Para-6 he proved the fardbeyan and his signature thereon respectively marked as Exts-3 & 3/1. He also proved Ext-3, the signature of his father. At para-5 of his evidence it is stated that he learnt about the occurrence in the morning of 16.08.2001 from Birendra Singh (P.W.5) that the Sasural People of the deceased had killed her by administering poison to her then he said that he came to deceased‟s Sasural house and saw her lying there dead on a cot on the Varandah of the house. Then at para-6 he stated about the recording of the fardbeyan at appellant Amarjit Singh‟s house. At para-7 of his statement he stated that he had given a written statement on 16.08.2001 7 at the P.S. At paras-7 & 9 he stated that he was not a medical expert but on looking to the deceased he had felt that the deceased had been killed by administering poison.
8. P.W.2 Sardar Madan Singh deposed on 03.11.2004 that the marriage of the deceased had been performed 5-6 years ago. He also does not disclose the exact date of the marriage. He stated that on 15.08.2001 at 2.00 p.m. he had seen the deceased lying on a cot in unconscious position and people were pouring water on her head. He further deposed that he learnt from the persons present there that the deceased had some altercation from her husband, Dewar and mother-in-law regarding demand of Rs.20,000/- and they had threatened that they will marry the deceased‟s husband to another lady if the demand was not fulfilled and that in the meantime she was administered poison or she herself took poison, as a result of which she died. Then this witness deposed about the compromise in the earlier complaint case, C.A. No. 68/1998 and he also stated that he was a witness to the Punchnama.
9. The P.W.1 Sardar Kishan Singh deposed that on 02.08.2004 that the appellant was married to the deceased about ten years back. Thus, according to 8 this witness the deceased was married in the year 1994. This witness being the father of the deceased simply stated about the marriage performed ten years back but he did not disclose the exact date of the marriage. He further deposed at para-1 that Birendra Singh (P.W.5) had informed on telephone in the evening of 15.08.2001 that the appellants and the deceased‟s mother-in-law had killed the deceased by throttling and poisoning. He further deposed that earlier also money was demanded and due to non- fulfillment of the demand the deceased had been tortured, therefore, she had filed a case in which the accused had filed compromise and the case was compromised on the terms and undertaking that husband will not torture the deceased in future. Thus, this witness had said about the demand of Rs.20,000/- and its non-fulfillment as the cause for the present occurrence and then he referred to the previous case which had been compromised. During his evidence this witness produced the deceased‟s letter dated 07.12.1997 sent her to him. The letter was proved and marked as Ext-1. Learned counsel for the appellant submitted that the letter was not produced before the I.O. during investigation and that it was produced for the first time in Court during evidence of 9 this witness. No doubt the letter was produced in Court for the first time but the letter appears to be a natural and genuine and there does not appear to be any doubt to disbelieve the same. This letter (Ext-1) mentions to have been written by "Lattoo" and this witness has stated at para-2 that "Lattoo" was the nick name of the deceased. Thus, the letter was written by the deceased.
10. The perusal of the contents of the letter (Ext-1) depicts a pathetic story of torture and harassment to the deceased due to non-fulfillment of the demand of dowry. It is mentioned in the letter that mother-in-law of the deceased was always torturing and harassing her due to non-fulfillment of demand of Rs.15,000/- and she (mother-in-law) was threatening that if the demand was not fulfilled she would perform the marriage of her son (deceased‟s husband) with another woman. It is also mentioned in the letter that the deceased‟s husband who was living out station had sent a message to her that he will not come to the house till the deceased was alive there and that he was also learnt to have some affair with another woman at the place where he was living. The letter further mentions that the mother-in-law was always asking her (deceased) to leave her Sasural but the deceased 10 had taken a decision that when she had come to her Sasural as a bride, she will not leave her Sasural till she was alive and that her dead body would be taken out of the house. Deceased has expressed her despair and disappointment in the letter that she had lost all her patience, and the situation had become beyond her tolerance and that any day anything untoward may happen to her. She has also mentioned in the letter that when she fell ill her mother-in-law did not arrange for any medical treatment to her. Therefore, she took a loan of Rs.1500/- from her (deceased‟s) Mausi, and got her treated. The deceased also expressed that in case she does not survive the loan of Rs.1500/- be repaid to her Mausi by selling out her ring.
11. At para-12 of his evidence P.W.1 deposed that at the time of occurrence his son-in-law (Amarjit Singh) was living at Aassam. At para-6 of his evidence he further deposed that his son-in-law was very poor and that he did not provide the deceased nutritious food after her caesarian operation and proper treatment was also not provided to her, as a result of which, she died after one month of the birth of her child.
12. P.W.4 Sardar Shailendra Singh deposed that deceased was married to appellant Amarjit Singh 11 in the year 1994-95. This witness is the elder brother of the deceased but he too does not disclose the date of the marriage. He further deposed that the appellants used to torture the deceased after marriage due to non-fulfillment of the demand of dowry and that being fed up, he instituted complaint case but it was compromised on the appellants‟ undertaking that they will not torture her but the accused persons started torturing her again. Thus, this witness deposes that even after compromise wherein the accused had undertaken not to torture the deceased the torturing continued. At para-3 of his evidence he stated that he learnt about the occurrence on telephone from Birendra Singh (P.W.5) that the accused/appellants had poisoned the deceased and thereby they killed her. Then he says that he, along with his father and brother, went to the police station and disclosed to the Officer-in-Charge about the occurrence but he further deposed at para-3 that he had gone to the Sasural of the deceased and found the deceased lying there dead and froth was coming out from her mouth. He also deposed that police had come and had taken statement there and that thereafter the inquest report of the dead body was also prepared there in his presence. At para- 2 of his evidence this witness has stated that after 12 compromise in the complaint case the deceased had gone to her Sasural but even thereafter the accused persons continued torturing her again.
13. The P.W.5 Sardar Birendra Singh, the Mausera brother of the deceased stated in his evidence that on hearing Hulla he went to deceased‟s Sasural house and found that she was lying and froth was coming from her mouth. He stated that the villagers told him that deceased had been poisoned in connection with demand of money which was being made since the last one month. He further said that the deceased was provided proper treatment by the doctor and she had been treated by a local doctor and that she died in the preceding night at 7.00 to 8.00 p.m. He also deposed that on 16.08.2001 he had informed the deceased‟s father on telephone. He further deposed that on his information Kishan Singh (P.W.1) Sanjeet Singh (P.W.3) and Shailendra Singh (P.W.4) had come to the deceased‟s Sasural with police. He further deposed that the police had prepared the inquest report of the deceased‟s dead body in his presence. He identified his signature (Ext-4) on the inquest report. At para-9 of his evidence he stated that his house situated at a close distance from the Sasural of the deceased. Thus, this witness was a natural and 13 probable witness to have come to the deceased‟s Sasural on hearing Hulla about the death of the deceased. This witness though does not name the villagers, who had stated before him about the demand of money since last four month. But it appears that those were the persons of the locality and thus what was stated or expressed by people at the place of occurrence shortly after the occurrence is relevant for consideration.
14. The P.W.6 Sukhdeo Singh has turned hostile to the prosecution. He stated that he knew nothing about the occurrence. This witness has been cross-examined by the Addl. P.P. and on his attention being drawn to his previous police statement, he denied to have made such statement before the I.O.
15. P.W.7 Dr. Ashok Kumar Choudhary had conducted post mortem examination on the dead body of the deceased, he deposed that on 16.08.2001 he had conducted post mortem examination on the dead body of the deceased Sukhmini Kaur and he had found the following injuries:-
I. Brain was found congested, II. Both pleura intact, III. Both lungs were congested, IV. Stomach contained liquid material with 14 pungent smell (Poisoning smell). Inner wall of gastric mucosa shows peticheal haemorrhage. Liver, splin, both kidneys were found congested. Uterine cavity was found empty. There was no external injury on her person.
V. Time elapse death was within 48 hours. He further deposed that the cause of death in his opinion was due to poisoning. He also deposed that the viscera were preserved for chemical analysis. He proved the post mortem report (Ext-5) in his writing and signature. He also proved Ext-5/1, the signature of Dr. Arun Kumar Choudhary, who was with him in conducting post mortem examination. He further deposed that in his opinion peticheal haemorrhage comes in case of poisoning. He also deposed that the cause of death was completely due to administering poison to the deceased. He further deposed in his cross-examination that he had not sent the Viscera rather the police official had sent it to F.S.L. Muzaffarpur for scientific and chemical analysis.
16. The P.W.8 Mahesh Prasad Gupta, the I.O. has deposed that on 16.08.2001 when he was Officer-in-Charge of Rohtara P.S., he got information at 9.00 a.m. that an occurrence of poisoning had taken place in village Sadalpur. He recorded the information 15 in the station diary and then he, along with the Sub- inspector proceeded to village Sadalpur for verification of the information. He further deposed that he reached to the appellant Amarjit Singh‟s house in the village at 11.00 a.m. He further deposed that the dead body of the deceased Sukhmini Kaur was lying on a cot at the Darbaja of the appellants. Then he deposed that he recorded the fardbeyan of informant Sardar Sanjeet Singh. He proved the fardbeyan (Ext-3) in his writing and signature. He also stated that the informant Sardar Sanjeet singh signed on it. The signature of the informant has been proved as Ext-3/1. He also deposed that he has forwarded the fardbeyan for institution of F.I.R. at the P.S. He further deposed that after lodging of the F.I.R. he took up the investigation of the case. He proved the F.I.R. and the writing and signature of the Officer-in-Charge Surendra Kumar Saroj. He further stated that the inquest report of the dead body was prepared in his presence by S.I. B.K. Tirki. The inquest report has been proved as Ext-4/1. He further deposed that he had recorded the statement of the witnesses then he deposed that on investigation he found the case true but in the meantime he was transferred to another place, hence he handed over the charge of further investigation to S.I. Rajesh Tiwary. 16
17. P.W.9 Surendra Kumar Saroj was the Officer-in-Charge of Korha P.S. at the relevant time. He deposed that on receiving the fardbeyan from Rohtara P.S. he had instituted the First Information Report No. 159 of 2001 dated 17.08.2001 under Sections 304B, 328/34 of the I.P.C. at his P.S. He proved the F.I.R. Ext-C in his writing and signature.
18. P.W.10 Md. Ayub was the technician in Regional Forensic Science Laboratory, Muzaffarpur, where the viscera of the deceased were examined. He deposed that at the time of examination of the viscera he was present with Mr. B.K. Sinha, Regional Director, RFSL, Muzaffarpur and that on examination Aluminium Phosphide was detected in the viscera. He also deposed that Almunium Phosphide is commonly known as "CELPHOS" and that it is a severe gaestro intestinal irritant. He further deposed that CELPHOS is used as grains preservative and it is highly poisonous. He also deposed that after taking CELPHOS a person must die. He proved the viscera examination report Ext-6 stating that it bears his signature and the signature of the director Mr. B.K. Sinha. He further deposed that the report was prepared in his presence, and the chemical examination of the viscera of the deceased established 17 that the deceased had died of consuming „CELPHOS‟ which is a strong poison used in preserving grains.
19. As to the defence evidence the D.W.1, Ramji Jha the resident of the same village Sadalpur deposed that the deceased Sukhmini Kaur was married to appellant Amarjit Singh on 22.06.1994 and the marriage rituals performed in Gurudwara at Katihar. He also deposed that he had attended the marriage as a Barati. Thus, according to this witness the marriage was solemnized on 22.06.1994, which period falls seven weeks beyond the period of seven years from the marriage to the date of occurrence. At para-10 of his evidence he deposed that the marriage of the deceased was performed beyond seven years from the date of occurrence. During cross- examination, the prosecution did not challenge the evidence of this witness on the point of date of marriage as stated by this witness. This witness further deposed that after caesarian operation the appellant could not provide her proper treatment and that the deceased died out of frustration. He also stated that the appellants have not administered any poison to the deceased.
20. The D.W.2 Budhi Risi deposed that at the time of occurrence Amarjit Singh was residing in 18 Assam and that he used to send money to his house. He also deposed that appellant Chhotu Singh was living separate from Amarjit Singh. After caesarian operation the deceased remained ill and that due to poverty the Sasural people used to get her treated by a village doctor and that due to this the deceased died of frustration. The P.Ws.3 & 4 also deposed on similar lines.
21. During argument learned counsel for the appellant challenged the charge under Section 304B of I.P.C. on the ground that prosecution failed to establish the marriage within seven years from the date of occurrence and that it being an essential element for the substratum of the charge, the prosecution has failed to establish this charge. It was pointed out that all the prosecution witnesses including the father, brother and Mausa of the deceased all have tried to evade in stating the date of marriage and they have deliberately stated about the marriage vaguely in the manner, some time six years and, some time ten years back. The perusal of the evidence of the prosecution witnesses shows that none of the prosecution witnesses stated about the date of marriage. All have given evasive answer by way of stating that it was solemnized 5-6 or ten years back. 19 The prosecution witnesses include the father, brother and close relatives of the deceased. It cannot be accepted that none of them was in know of the date of the marriage. From the trend of the evidence adduced by the P.Ws. on the point of the period between the marriage and the date of occurrence it appears that the witnesses have tried to gave evasive reply by stating about the number of years which is also not consistent in their evidence and they appear to have tried purposely not to disclose the date of marriage.
22. On the other hand the defence has proved the critified copy of the Complaint Case No. 68 of 1998 (Ext-A) admittedly filed by the prosecution under complaint No.68 of 1998 under Section 498A of the I.P.C. and under Section ¾ of the Dowry Prohibition Act. This certified copy of the complaint specifically mentions the date of marriage as 22.06.1994. The D.W.1 who was a resident of the same village and who stated to have attended the marriage as a Barati has testified that the marriage of the deceased was solemnized on 22.06.1994. During the evidence of D.W.1 the prosecution did not challenge the evidence of that witness on this point. Thus, the evidence of the D.W.1 on the point of marriage as also corroborated with the date as 20 mentioned in the certified copy of the complaint petition (Ext-1) appears to be truthful. There is nothing to discredit the defence evidence on the point of the date of marriage. Therefore, the date of marriage i.e. 22.06.1994 as testified by the defence evidence has to be accepted. Considering this date of marriage it has to be found on calculation that this date of marriage falls seven weeks beyond the period of seven years from the marriage to the date of occurrence i.e. 15.08.2005. Reasons are not far to be found that the prosecution witnesses deliberately did not say about the date of marriage considering that it would not be within seven years of date of occurrence and therefore, the prosecution witnesses tried to mention only the number of years by way of giving evasive statement on this point. Thus it stands proved that the occurrence did not take place within seven years of the marriage.
23. For the purpose of establishing the charge under Section 304B I.P.C. and thereby raising the presumption under Section 113B of the Evidence Act it is necessary to prove as an essential element amongst others that the marriage was solemnized within seven years of the occurrence. Since the essential ingredient of the marriage performed within seven years of the occurrence was not proved the 21 charge under Section 304B cannot be allowed to stand and therefore, there does not remain any ground to raise a presumption under Section 113B of the Evidence Act that the appellants committed the offence of dowry death.
24. Now this has to be considered as to what offence has been proved by the prosecution when the charge under Section 304B of the I.P.C. could not be established. The prosecution alleged that the appellants tortured and harassed the deceased due to non-fulfillment of the demand and that therefore they killed the deceased by administering the poison to her.
25. So far the question of demanding money as dowry is concerned the informant (P.W.3 at para-1) deposed that the conjugal life of his sister (deceased) never remained happy, meaning thereby, the appellants were always demanding money and articles as dowry. At para-3 of his evidence he stated that prior to the occurrence also the appellants had tortured the deceased and had ousted her from the Sasural as a result of which Complaint Case No. C.A. 68 of 1998 had been filed. But the case was compromised. Thus, the witness stated about the earlier torture and harassment and thereafter the subsequent torture and harassment continued in 22 similar way till the time of occurrence. P.W.2 who had gone to the deceased‟s Sasural on the day of occurrence has stated that the people present there had stated that the deceased had an altercation with the appellants and her mother-in-law regarding demand of Rs.20,000/- from her parents and that the appellants had threatened the deceased that if the money was not paid her husband would be married to another woman. No doubt, this witness does not name the persons who had spoken these things but in the circumstance of the case such statement of the villagers as was stated before the P.W.2 is a very relevant material to be considered about the torture and harassment committed on the deceased due to non-fulfillment of the demand of money as dowry. The P.W.1 who is the father of the deceased has testified that the appellants and deceased‟s mother-in-law Ratan Kaur (who is absconding) were demanding Rs.20,000/- and due to non-fulfillment of demand they killed the deceased. He also stated that earlier also money was being demanded by the accused and due to non-payment the deceased was tortured, hence, complaint case was filed which the accused had compromised on the terms that the accused will not torture her (deceased) nor they will demand any 23 money in future. Thus, the father of the deceased deposed that in the compromise petition the accused had undertaken not to torture the deceased and demand money but they continued the same after compromise and the appellants as well as the mother- in-law kept demanding Rs.20,000/- and that when the money was not paid the deceased was administered poison. The P.W.4 who is the elder brother of the deceased has stated that getting fed up of the torture and harassment as a result of non-fulfillment of demand of dowry a complaint was filed earlier but the accused/appellants had compromised the case. This witness had stated at para-2 that after compromise the deceased went to her Sasural but the accused/appellants again started torture her. Thus, this witness says about the torture and harassment meted out to the deceased even after the compromise wherein they had assured not to torture her in future. This witness stated that such torture and harassment continued till the day of occurrence.
26. The P.W.5, who is a close neighbour of the appellants has stated that on Hulla he went to deceased‟s Sasural and found that froth was coming out of her mouth and villagers told him that the deceased had been poisoned in connection with 24 demand of money which were being made since last one month. No doubt, this witness does not name the villagers who had told this but whatever was said by such persons at the P.O. shortly after the occurrence is a relevant material to be considered in the context of the allegation that the accused/appellants were tortured the deceased due to non-fulfillment of the demand of money as dowry. Thus, evidence of the witnesses go to establish that even after the compromise which was entered into the parties in the earlier instituted case namely, Complaint Case No. 68 of 1998, wherein the accused/appellants had undertaken not to torture the deceased nor demand any money in future, they continued demanding money again and torturing the deceased for non- fulfillment of the demand. This is sufficient to prove the element of cruelty as defined in Section 498A of the I.P.C. The deceased was harassed for the non- fulfillment of demand of money and such act of the accused/appellant was likely to drive the deceased to commit suicide. In such view of the matters, when the charge under Section 304B is not being established due to the occurrence having taken place beyond seven years of marriage, the charge under Section 498A I.P.C. is sufficiently proved.
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27. The prosecution evidence establishes beyond doubt that the accused/appellants had earlier tortured and harassed the deceased for non-fulfillment of demand of money from her parents and that they had undertaken her not to torture and harass again under the compromise entered into the earlier instituted case No. C.A. 68 of 1998 but despite the undertaking they again started demanding money and torturing and harassing her due to non-fulfillment of the demand. The pathetic situation as has been depicted in the letter (Ext-1) of the deceased mentions that the accused/appellants had tortured her to that extent that she was feeling compelled to commit suicide. No doubt, this letter was written earlier to the institution of the complaint case No. C.A. 68 of 1998, which was compromised but the situation as was established through the evidence of the prosecution witnesses shows that even after compromise the accused persons adopted the same activity and they continued demanding money and torturing the deceased due to non-fulfillment of the demand. This is sufficient to establish that by committing such torture and harassment they compelled the deceased to commit suicide. This act falls within the category of the act of abetting the commission of suicide which is 26 punishable under Section 306 of the I.P.C. Therefore, I feel that offence punishable under Section 306 I.P.C. has also been established by the prosecution.
28. The appellants have been convicted under Section 328 I.P.C. on the charge that they administered poison to the deceased. On careful appraisal of the evidence as laid by the prosecution it appears that the witnesses have said that the appellants have killed the deceased by way of administering poison to her but there is no eyewitness on the point of administering poison. There is also no other circumstance shown to indicate that it were the appellants or any of them who administered poison to the deceased. Rather the circumstances are of the nature to indicate that the deceased had been tortured and harassed to the extent that she had herself taken poison in utter despair. Due to the reason that there is no direct or sufficient evidence to establish the administering of the poison to the deceased at the hands of the accused/appellants, I feel that the charge under Section 328 of I.P.C. has not been establish and therefore the appellants are acquitted of the charge.
29. During hearing learned counsel for the appellants referred to the evidence of deceased‟s father (P.W.1 at para-12) that at the time of occurrence the 27 deceased was living at Assam. Therefore, it was argued that the appellant Amarjit Singh, the deceased‟s husband was not living at the deceased‟s Sasural house at or during the time of occurrence, hence, he cannot be held liable for the acts of torture and harassment as meted out to her. No doubt, the appellant Amarjit Singh was not in the deceased‟s house at or during the time of occurrence but to decide his participation in the act of the commission of torture and harassment, the contents of the deceased‟s letter (Ext-1) is sufficient to provide material to indicate that even by keeping himself away from the deceased‟s Sasural house he was involved in the act of torture and harassment to the deceased. Here, it is relevant to quote some contents of deceased‟s letter. The deceased had mentioned in her letter that she had learnt that her husband has become entangled to another woman and he had sent her (deceased) message that he would not come to his house (deceased‟ s Sasural) till the deceased was alive there. There is no evidence to show that after the compromise of the earlier case in which the husband, appellant Amarjit Singh had specifically undertaken that if he will have to live out station he will keep his wife (deceased) with him. There is no evidence that he came to live with the deceased in her 28 Sasural or he ever took the deceased with him to the other place where he was living. This act of the husband keeping himself away from the house under a message that he will not come to the house till the deceased was alive is not less than worst kind of torture committed to the wife. Therefore, I feel that the very absence of the husband at or during the time of occurrence does not help him and he remains equally liable for the offence of torture and harassment to the deceased, which compelled her in utter despair to end her life by taking poison.
30. Learned counsel for the appellant pointed out that the informant (P.W.3 para-7) has stated that he had given written statement dated 16.08.2001 at the P.S. He further pointed out that the deceased‟s elder brother (P.W.4 para-3) stated that he, along with his father (P.W.1) and brother (informant, P.W.3) along with father and brother had gone to the P.S. first and disclosed to the O.C. about the occurrence and then from there they went to the deceased‟s Sasural. He also referred to the informant‟s Mausera brother‟s statement (P.W.5 para-1) that Kishun Singh (P.W.1), Ranjeet Singh (P.W.3) and Shailendra Singh (P.W.4) had come with police to deceased‟s Sasural. Thus, on the basis of the 29 statement of the witnesses learned counsel argued that deceased‟s father and brothers had earlier gone to the P.S. and they had disclosed there about the occurrence and also had give in writing and then they had gone to the deceased‟s Sasural with police. Therefore, it was argued that the informant had already given in writing at the P.S. before the I.O. Learned counsel further submitted that according to the case of the prosecution the informant‟s fardbeyan (Ext-3) was recorded by police at the P.O. i.e. the deceased‟s Sasural or the house of the appellant. Here it was argued that admittedly the informant had already given in writing at the P.S. about the occurrence and which was his statement about the occurrence which should have been treated as the fardbeyan but that earliest statement of the informant has not been brought on record, therefore, it was argued that prosecution has suppressed the earliest statement of the informant and that the present fardbeyan (Ext-3) is the statement of the informant made as a result of after thought. Therefore, it was argued that the prosecution has suppressed the real fact as was mentioned in the earliest statement of the informant. As to the point, no doubt some statements have come in the evidence of the witnesses that the informant along with his father 30 and brother had gone to the P.S. and had given something in writing there and then they had come to the P.O. with police. In this context, the evidence of the I.O. is that he heard that an occurrence of poisoning had taken place at Sadalpur and on the basis of that information he recorded the S.D. entry at the P.S. and then proceeded to the village for verification of the information. On perusal of the evidence of the witnesses it appears that during their evidence such kind of statement has come that they had given information in writing at the P.S. but the defence did not clarify during cross-examination as to what kind of information was given to the P.S. In the facts and circumstances, in such case when one gets information about the occurrence of dowry death of his daughter or sister it is natural that one would be afraid in going direct to the place of occurrence and that he would first go to the police for assistance in going to the place of occurrence with police for the verification of the information and then taking legal action on the actual state of affairs. It appears that the deceased‟s father and brother had gone to the P.S. first and they had disclosed about their knowledge which they had learnt through telephone but they had no personal knowledge of the actual occurrence and that therefore, 31 they might have requested the police in writing for going to the P.O. with them and then taking legal action on the basis of the actual facts found there. It appears that on going to the P.O. with police the informant saw the dead body and then he learnt about the death of his sister (deceased) and then he gave out his fardbeyan (Ext-3) there containing the actual state of affairs found by him. Thus, whatever is said to said to have been given in writing at the P.S. before going to the P.O. does not appear to be so important in view of the facts that at that time the informant had a simple knowledge on the basis of telephonic information and he needed the help of the police for going to the P.O. for knowing about the actual state of affairs with regard to the occurrence. Therefore, something as is said to have been given in writing does not appear to be of so much so importance that the prosecution will suppressed it for the purpose of concealing the real facts which were and which could only be stated in the fardbeyan by the informant as alleged at the P.O. on looking to the dead body of the deceased and learning about the state of affairs regarding the death of the deceased. Therefore, the non-production of the earlier statement as is said to have been given by the informant at the P.S. does not appear to affect the 32 prosecution case, which has been otherwise proved through cogent and reliable evidence.
31. The learned counsel for the appellant argued that the deceased‟s father (P.W.1 para-6) has stated that his son-in-law was a very poor man and that after her caesarian operation her husband did not provide her nutritious food nor got her properly treated, as a result of which the deceased died one month after her child‟s birth. It has come in the evidence of the prosecution witness that the deceased‟s caesarian operation was got done by her parents and thereafter she was living in her Sasural. Learned counsel for the appellants submitted that according to this evidence the deceased had died due to not providing her better treatment and giving nutritious food to her but it was due to extreme poverty of the husband hence, the accused/appellants are not liable for any offence. No doubt the deceased‟s father says that the deceased died due to lack of food and treatment but this is not the only circumstance with respect to her death. The deceased‟s father as well as her brother and other relatives examined as witnesses have also said the accused/appellants had continued the demand of money and torturing her due to non- fulfillment of the demand even after the compromise 33 filed in the earlier case. Thus, the very evidence of the deceased‟s father that the deceased died due to lack of proper treatment and food cannot be considered in isolation to dispel or discredit the categorical and consistent evidence of the very witnesses that the accused/appellants tortured and harassed the deceased to an extent that she was compelled to commit suicide.
32. The defence witnesses have stated that any demand of money as dowry had never been made by the accused/appellants. But these defence witnesses are not the relatives of the appellants or the deceased‟s parents. They have no relationship with the appellants so that they could have any special knowledge in this regard. If dowry is demanded it will be made from the wife, her parents, brothers or her close relatives. They will be the competent witness to say about this. It appears that the defence witnesses, in so far as they say about not demanding of money have adduced their evidence on their surmise. In such view of the matters, the evidence of the defence witnesses in this regard is not reliable and hence it cannot be accepted.
33. Now, coming to the question as to what offence has been proved by the prosecution learned 34 counsel for the appellants submitted that the offence under Sections 498A and 306 I.P.C. is quite different from the offence under Section 304B which could not be established by the prosecution. In this context reference was made the case of Baljeet Singh V. State of Haryana reported in A.I.R. 2004 Supreme Court 1714, wherein the Hon‟ble Supreme Court has held that when the death said to have occurred under abnormal circumstances is not established to have happened within seven years of marriage the charge under Section 304B cannot be held to have been proved, and the appellants were acquitted of the charge. In another case of Akula Ravindra and Ors. V. State of Andhra Pradesh reported in A.I.R. 1991 Supreme Court 1142, the Supreme Court similarly held that when the essential element of the death having occurred under circumstances other than normal was not established charge under Section 304B cannot be held to be established. However, in that case due to there being sufficient evidence to show that the deceased was subjected to cruelty within the meaning of Section 498A of I.P.C. the appellant was convicted thereunder. In the case of Prema S. Rao V. Yadiasriniwasa Rao reported in A.I.R. 2003 Supreme Court 11, the Hon‟ble Supreme Court in a case under 35 Section 304B where the accused/husband had pressurized and harassed the deceased wife to part with the land received by her from her father as "STRIDHANA" and when such cruel conduct of the husband had led the wife to commit suicide, it was held that acquittal of the appellant under Section 304B of I.P.C. was justified but the appellant was convicted under Sections 498A and 306 of I.P.C. Thus, in a case when the charge under Section 304B I.P.C. could not be established but on the facts that when the deceased had been harassed and the cruel act of the accused had led the wife to commit suicide the accused were convicted under Sections 498A and 306 of I.P.C.
34. In such view of the matters, I find that in the instant case when the charge under Section 304B I.P.C. could not be established due to non- proving of one of the essential ingredient of the charge that the death occurred within seven years of the marriage, I see no bar in convicting the appellants under Sections 498A and 306 I.P.C. on the evidence that the appellants had tortured and harassed the deceased due to non-fulfillment of the demand of money as dowry and that such cruel acts of the appellants had led the deceased to commit suicide by 36 taking poison.
35. Therefore, on the facts, circumstances and the evidence as discussed above, I find that the charge under Section 328 I.P.C. has not been proved. Hence, the appellants are acquitted of the charge. So far the charge under Section 304B I.P.C. is concerned, it has also not been established on the facts proved on record but the evidence establish the charge under Sections 498A and 306 of I.P.C. Hence, the appellants are convicted of these two charges. As to the quantum of sentence, I feel that sentence of R.I. for five years under Section 306 I.P.C. will meet the ends of justice. Further, I feel that the sentence of R.I. for two years under Sections 498A I.P.C. will also be justified. Therefore, the appellants are accordingly sentenced under these two charges. Both the sentences will run concurrently.
36. In the result, the appeal stands dismissed with modification in conviction and sentence as indicated above.
(C.M. Prasad, J.) Patna High Court, Dated, 1st October 2010, N.A.F.R./Mkr.