Delhi High Court
Ashok Batra S/O Shri Karam Chand Batra, ... vs The State on 14 August, 2002
Equivalent citations: 102(2003)DLT642, I(2003)DMC287, 2003(67)DRJ91
JUDGMENT V.S. Aggarwal, J.
1. This is an appeal filed by Ashok Batra and three others (hereinafter referred to as the appellants) directed against the judgment and the order of sentence passed by the learned Additional Sessions Judge, New Delhi dated 28th November, 2000 and 29th November, 2000 respectively. The learned trial court held the appellants guilty of the offences punishable under Section 306/34 and 498A/34 Indian Penal Code. Each of the appellant was sentenced to undergo rigorous imprisonment for three years and a fine of Rs. 15,000/- for the offence punishable under Section 306/34 Indian Penal Code. In default of payment of fine he was to undergo rigorous imprisonment for six months. They were sentenced to undergo further rigorous imprisonment for a period of two years for the offence punishable under Section 498A/34 Indian Penal Code and a fine of Rs. 2500/- each. In default of payment of fine they were to undergo further rigorous imprisonment for one month. Rs. 60,000/- out of which was directed to be paid to the son of the deceased. The substantive sentences were directed to run concurrently.
2. The relevant facts of the prosecution case are that appellant Ashok Batra was married to Kokila @ Pinki on 28th March, 1997. It is alleged that immediately after their marriage the husband of the deceased, her brother Pran Batra and their sisters Swatanter Batra and Vijay Batra besides Pushba Batra started harassing and treating the deceased with cruelty for dowry and finally caused her death on 8th July, 1997.
3. The elder brother of the deceased Rajnikar Hans received information in his office at 11.05 AM on 8th July, 1997 that his sister had committed suicide. He went to the matrimonial house of her sister but before going there he telephoned the police control room who in turn informed the police station Mehrauli. A daily diary entry was made at the police station. Sub Inspector Dharam Bir was directed to proceed to the spot. He had gone to the house of the deceased.
4. In one room on the first floor the body of Kokila was lying on the floor. One nylone rope was found lying near the dead body. Sub Inspector Dharam Bir recorded the statement of Rajnikar Hans who reported that after 10 or 12 days of the marriage the appellants had started harassing the deceased physically and mentally. On basis of the same first information report was recorded with respect to the offences punishable under Section 302/498A/34 Indian Penal Code.
5. The Sub Divisional Magistrate of the area was informed about the incident. He conducted the inquest proceedings, he recorded the statement even of the father of the deceased on same lines about harassment of the deceased by the appellant who used to abuse her and even assaulted her physically. He stated that there were dowry demands in this regard. They even used to incite appellant no.1. Postmortem on the mortal remains of Kokila had also been conducted but before that nylon rope was seized which was lying near the dead body. Ligature mark was noticed all over the middle of the neck of the deceased. There were bruises over the middle back of the left arm. The cause of death was opined to be asphyxia as a result of ligature strangulation. Viscera even was sent for Chemical analysis but no poison was found. It was further opined that ligature marks could be possible with the string.
6. The appellants were arrested and on these broad facts report under Section 173 Code of Criminal Procedure had been filed.
7. The learned trial court framed a charge against Ashok Batra for the offence under Section 302 in the alternative 304B. He was also charged for the offence punishable under Section 498A/34 along with the other appellants. The other appellants were also charged for the offence punishable under Section 304B Indian Penal Code. All the appellants pleaded not guilty and claimed a trial. To these charges the appellants pleaded not guilty and claimed a trial.
8. The learned trial court on appraisal of the evidence held that the appellants were entitled to be acquitted for the charge of murder and on dowry death. But the trial court held that appellants can be held guilty for lesser offence and held them to be so guilty for the offence punishable under Section 306/34. It was also recorded appellants are guilty of the offence punishable under Section 498A/34 Indian Penal Code. Vijay Batra, one of the accused was however acquitted. With these findings the learned trial court had pronounced the judgment followed by the order of sentence already referred to above.
9. Aggrieved by the same the present appeal has been filed.
10. So far as acquittal of the appellants with respect of the offence punishable under Section 302 (appellant no.1) and all appellants with respect to offence punishable under Section 304B are concerned, there is no controversy that has been raised. Even the State has not cared to preferring appeal against the acquittal. Reasons are obvious that during the course of trial all the purported witnesses did not support the prosecution case in this regard.
11. On behalf of the State reliance was placed on the letters purported to have been written by the deceased. Needless to state that there was no dispute raised before the trial court that these letters are written by the deceased nor any such controversy was raised in this court. In addition to that a school diary Ex. PW 13/1 has been produced which is in the handwriting of the deceased. In these letters the deceased recites about the maltreatment effected to her and that she was being harassed mentally and physically. She has recited that appellant Pran Nath and Swatantar Batra used to abuse her in a filthy language and they gave an impression to her husband which was not very good. Ashok Batra was not even eating the food cooked by her. He used to stay on the ground floor and his brothers and sisters were not allowing him to even meet the deceased. They were making efforts to see that her husband leaves/divorces her. The deceased had written that in her in laws house her brothers, father and even her son Aman were being used. She had written that the appellant Pran had threatened her that in case anything happened to his brother he would get her father and brothers killed and her son Aman would be made to live like a dead person. They would make her conditions so miserable that she will be forced to go back to her parents house. Even the ladies of the house who are the other appellants used to beat her physically. She had also written in the same letters that Pushpa, appellant had bitten her with her tooth and hit her with a glass. In the subsequent letter of 3rd June, 1997 the deceased again wrote that Swatenter Batra had told her that she would be killed otherwise she would not leave the house. Her husband used to silently watch all this and used to tell her that she would not object to the misbehavior of his brother as he has to get some work done from him. After some time Ashok became more bold and started beating her and had beaten her on 27th June, 1997.
12. Learned counsel for the appellant argued that these letters cannot be taken to be dying declaration and in any case there was no evidence so as to show that the deceased had committed suicide. Therefore, according to the learned counsel neither the appellants could be held guilty of the offence punishable under Section 306 nor under Section 498A of the Indian Penal Code. Suffice to mention that on behalf of the State it was alleged that the letter could be read as evidence pertaining to the cruelty effected by the appellants and therefore learned trial court had rightly held that appellants guilty of the said offences.
13. The first foremost question that comes up for consideration is as to whether the appellants could he held guilty of the offences punishable under Section 306 Indian Penal Code. Section 306 Indian Penal Code unfold it as in the following words:-
"306 Abetment of suicide-If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine."
14. This clearly show that for the offence punishable under Section 306 of the Indian Penal Code committing of the suicide is one of the necessary ingredients besides the other ingredients of the said provision. It is for the prosecution to establish that the concerned person has committed suicide. Presumption under Section 113A of the Indian Evidence Act, 1872 would also be drawn only when it is shown that she had committed suicide within period of seven years from the date of the marriage. Thus as mentioned above it has to be established whether she had committed suicide or not.
15. Hans Raj Pw-1 father of the deceased in Court had taken a summersault from his earlier recorded statement under Section 161 Code of Criminal Procedure. He categorically stated that at the time of the marriage of the deceased with appellant Ashok there was no demand of dowery. He could not state as to how she had died. Shashikar Hand PW-2 the brother of the deceased in identical terms testified before the trial court that she had never complained to him regarding the behavior of the appellants. He could not tell how and due to what reason she had died. According to him there was no demand of dowery. Sushila Devi PW-3 the mother of the deceased had made a similar statement which requires no repetition. Her sister Mrs. Sobha PW-4 too had stated that Kokila deceased died in July, 1997 but she does not know how she had died. According to her behavior of the appellants with the deceased was normal. Same was the statement of Prabhakar Hans PW-5 yet another brother of the deceased. Aman PW-6 is the child of Kokila, he also testified that behavior of the appellants towards his deceased mother was not indifferent. He was cross-examined by the public prosecutor and denied that her mother had been threatened. The oral testimonies thus all the relatives of the deceased clearly reveal that they did not indicate anything with respect to the fact as to whether kokila deceased had committed suicide or not.
16. Dr. O.P. Murti PW-19 had conducted the postmortem on the person of the deceased. He found ligature marks near the neck. There were two finger nail abrasion of 0.5 cms each just above one another. According to Dr.O.P. Murti the death was due to a asphysia as a result of ligature strangulation, which was likely to be homicidal. It transpires in the testimony of the Investigating Officer who had reached the spot that when he reached there Kokila's body was lying with some string on one side.
17. With this being the evidence on record, it is not possible for the Court to conclude that Smt. Kokila had committed suicide. It could not be disputed that she could not strangulate herself and still the string could be kept on one side. Seemingly no investigation was carried in this direction whether she could commit suicide or it could be a case on those lines. In the absence of it being established that she had committed suicide it will not be possible to uphold the conviction of the appellants for the offence punishable under Section 306 Indian Penal Code.
18. Confronted with this position it was contended further that offence under Section 498A Indian Penal code would also be drawn. As referred to above the learned State counsel had drawn the attention of the Court to the letters brief summary of which has been given above purported to have been written by the deceased. The learned counsel contended that under Section 32 of the Evidence Act the same would be relevant.
19. Section 498A of the Indian Penal Code 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 willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."
20. Perusal of the aforesaid clearly show that it is not necessary that harassment should be only with respect to the demand for any property. If there is a willful conduct to cause injury or danger the life, limb or health it would still be cruelty for purpose of offence punishable under Section 498a Indian Penal Code.
21. The letters referred to above were not disputed to be in the hands of the deceased. Sub-section (1) to Section 32 makes statements made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death as relevant. Sub-section (1) to Section 32 in this regard reads as under:-
"32(1) when it relates to cause of death.-- when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the case of that person's death comes into question."
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question."
22. The said provision has been subject matter of interpretation for more than a century. It will not be necessary to run through all the precedents but a Division Bench of this Court in the case of Ramji Lal v. State 32 (1987) Delhi Law Times 308 in this regard held that statement under Clause (1) to Section 32 must relate to the cause of death of the maker. In paragraph 27 the Court had held:-
"The condition precedent for the admissibility of a statement under Clause (1) of Section 32 of the Evidence Act is that the statement must relate to the cause of the death of the maker of the statement or as to any of t he circumstances of the transaction which resulted in his death. Thus important fact for determination is was the death of the Sushila because of gun shot injuries received in the incident to which her statement relates. On this finding also depends the answer whether the statement Ex.PW28/A of Sushila is admissible or no in evidence."
23. Similarly in the case of Sudhakar and Anr. v. State of Maharashtra 2000 Supreme Court Cases (Crl) 1250. The Supreme Court reiterated the same position by holding that statement of the deceased is admissible only to the extent of briefing the cause of circumstances of the transaction which resulted in death of the deceased. The statement should be closed nexus with the actual transaction. More recently in the case of Gananath Pattnaik v. State of Orissa 2002 Supreme Court cases (Crl) 461 the Supreme Court held that the statement of the deceased's sister had been taken on record using Section 32 of the Evidence Act. Such a statement would not be admissible in evidence for offence punishable under Section 498A Indian Penal Code. The findings of the Supreme Court in this regard are being reproduced below for the sake of facility:-
".....Such a statement appears to have been taken on record with the aid of Section 32 of the Indian Evidence Act at a time when the appellant was being tried for the offence under Section 304B and such statement was admissible under Clause (1) of the said section as it related to the cause of death of the deceased and the circumstances of the transaction which resulted in her death. Such a statement is not admissible in evidence for the offence punishable under Section 498A of the Indian Penal Code and has to be termed as being only a hearsay evidence. Section 32 is an exception to the hearsay rule and deals with the statements or declarations by a person, since dead, relating to the cause of his or her death or the circumstances leading to such death. If a statement which otherwise is covered by the hearsay rule does not fall within the exceptions of Section 32 of the Evidence Act, the same cannot be relief upon for finding the guilt of the accused."
24. In other words it has to be established that the previous statement had nexus with the cause of death.
In the present case the cause of death as referred to above is anybody guess. The evidence of the prosecution fell short of establishing the same beyond all reasonable doubts. The witnesses of the prosecution did not come forward to support the case of the prosecution. In that view of the matter in terms of Clause (1) of Section 32 of the Evidence Act the said letters could not be taken to be the previous statement to be relevant relating to the cause of the death.
25. The letters as referred to above had been admitted to be in the hand of the deceased. Under Section 8 of the Evidence Act it would be the conduct of the deceased and would make them relevant. She had been writing the same after she had been treated with cruelty but conduct by itself would not be sufficient to permit this Court to base the conviction of the appellants for the offence punishable under Section 498A Indian Penal Code. It would require corroboration. The said corroboration is absent. This is for the further reason that the letters are written to the brothers of the deceased who in Court have not supported the version of the prosecution or that she had been treated with cruelty. In the absence of it being so established that the deceased was treated with cruelty, contemplated Section 498A Indian Penal Code beyond all reasonable doubts, it is difficult to upheld the order of conviction. Indeed the appellants would be entitled to the benefit of doubt.
26. For the these reasons given above the appeal is accepted impugned judgment and order of conviction are set aside. The appellants are entitled to the benefit of doubt and are acquitted of the charges.