Delhi High Court
Jagdish Prasad & Anr. vs State (Delhi Admn.) on 2 December, 2009
Author: V. K. Jain
Bench: V.K. Jain
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. Appeal No.278/1999
Reserved on: 4th November, 2009
% Date of Decision: 2nd December, 2009
# JAGDISH PRASAD & ANR. ..... Petitioner
! Through: Mr. Laxman Mehta, Adv.
Versus
$ STATE (DELHI ADMN.) ..... Respondents
^ Through: Mr. Amit Sharma, Adv.
* CORAM:
HON'BLE MR. JUSTICE V.K. JAIN
1. Whether the Reporters of local papers
may be allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be
reported in the Digest?
V.K. JAIN, J.
1. This is an appeal against the Judgment dated 26 th April, 1999 and Order on Sentence dated 28th April, 1999 whereby both the appellants were convicted under sections Crl.A.278/1999 Page 1 of 21 306 and 498-A of IPC and were sentenced to undergo RI for 5 years each and to pay a fine of Rs. 2,000/- each or to undergo RI for 2 months each in default under Section 306 of IPC. They were also sentenced to undergo RI for 2 years each and to pay a fine of Rs. 2,000/- each or to undergo RI for one month each in default under Section 498A of IPC.
2. On 10.7.1991, deceased Sukhna Devi wife of the appellant Jagdish Prasad and daughter in law of the appellant Rukmini Devi was brought by the appellant Jagdish Prasad to Safdarjung Hospital in burnt condition. As per the history given to the doctor on duty, the deceased doused herself with kerosene oil as she was tortured by her husband and mother in law. The husband used to ask her for the house which her uncle had given to her and used to beat her.
3. The doctor who recorded the history on the MLC of the deceased, namely, Dr. Ajay Jain, came in the witness box as PW-9 and stated that the patient herself gave alleged history of suicidal burns and doused herself with kerosene and set herself on fire as she was tortured by her husband and mother-in-law. Her husband used to ask her for the house which her uncle had given to her and used to beat Crl.A.278/1999 Page 2 of 21 her. He further stated that the patient was having 100% deep burns on entire body and was critical though conscious and oriented.
4. PW-7 Mohan Lal is the brother of the deceased. He has stated that when the deceased visited their house, she used to tell their father that accused Jagdish and Rukmani Devi harassed her and demanded money for a plot of land. He further stated that he and his father had tried to pacify accused Jagdish and Rukmani Devi, but they did not accede to their request. In cross-examination, he stated that he cannot give details of the year when deceased Sukhna complained about harassment at the hands of the accused.
5. PW-3 Ram Lal is another brother of the deceased Sukhna. He has stated that his father had told him that his sister had complained about harassment caused to her by accused persons though he did not elaborate the reasons for harassment. He further stated that his father took it casually normal wear and tear of the life in the matrimonial home. He was cross-examined by the learned APP, but he denied having told the police that the accused persons used to tell her sister that her father should arrange for a separate house. He also denied the suggestion that the Crl.A.278/1999 Page 3 of 21 accused persons used to harass his sister for that reason. He, however, admitted that once, he and his father had gone to the house of the accused persons to ask them not to mal-treat and harass his sister, but they continued to harass her.
6. In their statement under Section 313 Cr.P.C., both the appellants denied the allegations of harassing the deceased and demanding money.
7. The appellants produced the sister of the deceased Kamla as DW-1. Kamla also happens to be the sister-in-law of appellant Jagdish and daughter-in-law appellant Rukmani Devi. Kamla has stated that deceased Sukhna died by pouring kerosene oil on herself. Accused Jagdish telephoned at the residence of her parents about the incident and they then took Sukhna to hospital. She further stated that in hospital, Sukhna could not speak due to extensive burns. She has also stated that she has no uncle and Sukhna had never told her about harassment by the accused persons.
8. It is an admitted case that the marriage of deceased Sukhna took place more than 7 years before her death. The FIR itself shows that she was married about 10-12 Crl.A.278/1999 Page 4 of 21 years before her death. DW-1 Kamla, sister of the deceased, was examined in Court on 18 th March, 1999. At that time, she stated that she and Sukhna both were married on the same day about 21 years ago. As deceased Sukhna died on 10 th July, 1991, the marriage, as per the statement of Kamla, took place about 13 years before her death. Since the deceased did not die within 7 years of her marriage, the statutory presumption under Section 113-A of Evidence Act is not available to the prosecution and consequently, even if the prosecution is able to prove that the deceased had been subjected to cruelty, it cannot be presumed that the suicide had been abetted by the appellants.
9. In order to succeed in charge under Section 306 of IPC, the prosecution was required to prove not only that deceased Sukhna committed suicide, but also that the appellants directly or indirectly abetted the commission of suicide by her. In order to amount to abetment, there must be mens rea. Without knowledge or intention, there can be no abetment and the mere fact that the deceased wife was treated by the appellants with cruelty by itself may not be sufficient to prove abatment of suicide unless the acts or Crl.A.278/1999 Page 5 of 21 conduct of the accused singly or cumulatively were of such formidable and compelling nature as may lead to commission of suicide.
10. Abetment necessarily means some active suggestion or support to the commission of the offence. The word „instigate‟ found in section 107 of IPC means to urge forward, provoke, incite, or encourage to do an act and a person is said to instigate another when he actively suggests or stimulates him to the act by any means indirect or indirect whether it takes the form of express solicitation or hints instigation be or encouragement. It is not necessary that the instigation by word, it may also be by conduct. Direct evidence of instigation is not necessary and in a given case, it can also be a deduced from the circumstances. The basic difference between Section 498- A of IPC and Section 306 thereof is that in Section 498-A, cruelty committed by the husband or his relative drags the woman to commit suicide while under Section 306 the suicide is abetted or intended.
11. In order to succeed in charge under Section 498-A of IPC, the prosecution is required to prove that the accused subjected the deceased to cruelty, which has been defined Crl.A.278/1999 Page 6 of 21 to mean willful conduct which is of such a nature that it is likely to drive the woman to commit suicide or cause grievous injury or danger to her life or health or 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. The expression „cruelty‟ takes within its sweep both mental as well as physical agony and torture.
12. The concept of cruelty varies from place to place and individuals to individuals and also according to social and economic status of the person involved. Cruelty postulates such a treatment as would cause a reasonable apprehension in the mind of the wife that her living with the husband will be harmful and injurious to her life. Therefore, to decide the question of cruelty, the relevant factors are the matrimonial relationship between the husband and the wife, their cultural and temperamental status in life, state of their health and their interaction in daily life which dominates the aspect of cruelty. The word „harassment‟ has not been defined in Section 498-A IPC, but dictionary meaning of the word „harassment‟ is to Crl.A.278/1999 Page 7 of 21 subject to someone to continuous vexatious attack, questions, demands or other unpleasantness.
13. As per the dying declaration of the deceased Sukhna Devi, made verbally to PW-9 Dr. Ajay Jain and recorded in her MLC the deceased informed him that her husband used to ask for the house which her uncle had given to her. There is no evidence that any house to deceased Sukhna was given by her uncle. In fact, there is no evidence that the deceased owned any house at all. PW-3 Ram Lal and PW-7 Mohan Lal who are the brothers of the deceased did not say a word to the effect that their uncle had given any house to the deceased or that the deceased owned any house. DW-1, who is the sister of the deceased, has specifically stated that she had no uncle. If the deceased did not have any uncle, there could be no question of any house being given to her by an uncle. Therefore, this part of the dying declaration appears to be incorrect and, cannot be relied upon for the conviction of the appellants.
14. The only statement of the deceased which can be considered against the appellants is to the effect that she was tortured by them and she used to be beaten by her husband. The statement does not give any particulars of Crl.A.278/1999 Page 8 of 21 the alleged torture by the appellant Rukmini Devi though as far as the appellant Jagdish is concerned, it says that he used to beat the deceased. Thus, the allegation against the appellant Rukmini Devi are absolutely vague and of a general nature, without any specific instance and without even indicating in what manner the deceased was tortured by her mother-in-law and when was she tortured by her. Neither PW-3 Ram Lal nor PW-7 Mohan Lal has told the court as to in what manner deceased Sukhna Devi used to be harassed by the appellants. As far as PW 3 Ram Lal is concerned, his testimony is absolutely hearsay since according to him Sukhna Devi had made complaint of harassment to his father and not to him. According to PW-7 Mohan Lal, the appellants demanded money for a plot of land. This is absolutely contradictory to the statement alleged to have been made by the deceased to PW-9 Dr. Ajay Jain, who according to the prosecution was told that the appellant Jagdish Prasad used to ask for the house which her uncle had given to her. Demanding money for purchasing a plot of land is altogether different from asking for a house stated to have been gifted by the uncle of the deceased to her. In view of absolute contradictory Crl.A.278/1999 Page 9 of 21 statements, one in the dying declaration of the deceased on the one hand and the other in the deposition of PW-7 Mohan Lal, as regards the reason for the alleged harassment of the deceased, it will not be safe to accept the deposition of PW- 7 Mohan Lal to the effect that the appellant used to demand money for a plot of land even. Even otherwise this is difficult to accept that money for purchasing a plot was demanded after 10-12 years of marriage. This is more so when PW-7 does not say when the money was demanded and how much money was demanded from the deceased. There is no evidence that the father of the deceased was rich enough to pay money for purchase of a plot. Ordinarily, one would not make such a demand to a person whom he knows is not in a position to meet it. This becomes more important in the light of the deposition of the PW-3 Ram Lal to the effect that the complaint made by the deceased Sukhna Devi was taken by his father rather casually as normal wear and tear of matrimonial life. In fact, PW-3 Ram Lal has contradicted his own brother PW-7 Mohan Lal by specifically denying the suggestion of the learned Public Prosecutor that he had told the police that the accused persons used to ask his father to arrange for a Crl.A.278/1999 Page 10 of 21 separate house and used to harass his sister for that reason. Had there been any demand of money from the appellants for purchase of a plot of land, that would definitely have been in the knowledge of PW-3 Ram Lal, who is none other than the real brother of the deceased. I, therefore, held that the prosecution has failed to prove that the appellants used to demand money from the deceased or from her father for purchase of plot of land. Thus, as far as the appellant Rukmini Devi is concerned, there is no credible evidence which would prove any cruelty or harassment of the deceased by her.
15. In Kans Raj vs. State of Punjab and others AIR 2000 SC 2324 the Hon‟ble Supreme Court , inter alia, observed as under:-
"In cases where such accusations are made, the overt acts attributed to persons other than husband are required to be proved beyond reasonable doubt. By mere conjectures and implications such relations cannot be held guilty for the offence relating to dowry deaths. A tendency has, however, developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the Crl.A.278/1999 Page 11 of 21 deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case."
Therefore, neither charge under section 306 IPC nor charge under section 498-A IPC stand established against her.
16. The only credible evidence which has come against the appellant Jagdish Prasad husband of the deceased is that dying declaration of the deceased made to PW-9 Dr. Ajay Jain to the effect that he used to torture her and used to beat her. The allegation of torture made in the dying declaration coupled with the allegation that Jagdish Prasad used to beat her shows that the appellant Jagdish Prasad used to torture the deceased by beating her, though there is no credible evidence on record to prove the reason for the appellant Jagdish Prasad beating the deceased. However, the dying declaration made by the deceased, as far as the appellant Jagdish Prasad is concerned, cannot be discarded merely because the reason or motive for the appellant Jagdish Prasad to give beating to his wife could not be established by the prosecution. If the statement of PW-7 Mohan Lal is read in the light of the dying declaration made by the deceased what stands proved is that the appellant Crl.A.278/1999 Page 12 of 21 Jagdish Prasad used to subject the deceased Sukhna Devi to physical cruelty by beating her.
17. Though a dying declaration need not necessarily be corroborated by other evidence as held by the Hon‟ble Supreme Court in Khushal Rao vs. State of Bombay (AIR 1958 SC 22) and there is no absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated and also it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence, it has to be adjudged in the light of the surrounding circumstances and with reference to the principles governing the weighing of evidence. In order to pass the test of reliability the dying declaration has to be subjected to a very close scrutiny keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. However, it is also not necessary that dying declaration should be recorded by a Magistrate alone. In Abdul Mazid vs. State of Gujarat AIR 1976 SC 1782 the Hon‟ble Supreme Court observed that where doctor felt that there was no time to call the police or a Magistrate he is not only Crl.A.278/1999 Page 13 of 21 justified but duty bound to record the dying declaration of the deceased and that he being a disinterested witness the court should not refuse to act on the dying declaration recorded by the doctor. In Suresh vs. State of M.P. AIR 1987 SC 860 it was held that dying declaration recorded by the doctor could be relied upon where the doctor had certified that the deceased was in her senses. In the present case, according to PW-9 Dr. Ajay Jain that though the deceased had hundred per cent burns on her body she was conscious and oriented. PW-9 being an independent person had no reason to record a false statement. His deposition to the effect that the deceased was conscious and oriented by itself is a certificate that she was fit to make a statement at the time when she met the witness in the hospital.
18. The dying declaration need not be discarded as a whole if the court finds that factual veracity of one part of it was doubtful. That part of the dying declaration can always be accepted and acted upon by the court, which appears to be correct and truthful from the facts and circumstances of the case.
Crl.A.278/1999 Page 14 of 21
19. The learned counsel for the appellants has referred to Jai Karan vs. State of (NCT Delhi) 1999 (2) JCC (SC)528 . In that case the dying declaration was recorded by a doctor who was not on duty in the burn ward where the deceased was brought. There was no certificate that the deceased was in a fit state of mind to make the declaration and rather there was evidence that she was unconscious and was not in a fit state of mind. It was also noticed that there was an endorsement by a doctor on the MLC that the injured was not in a fit condition for making statement was not examined by the prosecution. In these circumstances, the Hon‟ble Court did not find it safe to rely upon the dying declaration. This judgment does not apply to the facts of the present case as Dr. Ajay Jain has found that the deceased was conscious and oriented and there is no evidence to the contrary.
20. The learned counsel has next relied upon Surinder Kuamr vs. State 1991 JCC 495 where there were two dying declarations one recorded by the Magistrate in hospital which was recorded in English though the statement was made in Hindi and there was no certificate from any doctor that the deceased was in a fit condition to record her Crl.A.278/1999 Page 15 of 21 statement whereas the second dying declaration was made to a Su-Inspector which was also not certified by the doctor and which bore thumb impression of the deceased instead of her signature though she had studied up to 10 th class. It was in these circumstances, that neither of the dying declarations was believed by a learned single Judge of this Court. The learned counsel has also referred to Ashok Batra & others vs. The State 2002 (3) JCC 1667 where even the parents and brothers of the deceased did not confirm that there was any demand of dowry or any mental or physical violence on the deceased. The letters written by the deceased alleging violence were not supported by her relatives and parents. In these circumstances the appellants were acquitted by a learned single Judge of this Court. The learned counsel has next referred to Bishwanath Jha & Anr. Vs. State of Bihar 2002 (1) JCC 81 where it was held that hearsay evidence was not admissible. This judgment does not help the appellants, as the statement made by the deceased in her dying declaration recorded by PW-9 Dr. Ajay Jain as well as complaint made by her to her father in the presence of PW-7 if believed can be acted upon to the extent they appear to be reliable and convincing. The Crl.A.278/1999 Page 16 of 21 learned counsel has referred to Netai Dutta vs. State of West Bengal 2005 (1) JCC 522 wherein the suicide note left by the deceased there was no averment that the appellant had caused any harm to the deceased or was in any way responsible for his suicide. This was not a case of a death of a woman on account of matrimonial violence and, therefore, has no applicability to the facts of the present case. The learned counsel has also referred to Roop Kishore Madan vs. State 2001 (1)JCC (Delhi) 75 where the suicide note left by the deceased did not even remotely suggest that the petitioner incited the deceased to commit suicide. For this reason the criminal proceedings initiated against the petitioner were quashed by this Court. This judgment also has no applicability to the facts of the present case. The learned counsel has lastly referred to Laxmi & Anr. Vs. State 2000 (2) JCC (Delhi) 297 which again was not a case of matrimonial violence and does not apply to the facts of the present case.
21. The next question which comes up for consideration is as to whether charge under section 306 IPC and/or 498-A of IPC stand established against the appellant Jagdish Prasad. As noted earlier there is no evidence to show when the Crl.A.278/1999 Page 17 of 21 deceased was last beaten by the appellant Jagdish Prasad. There is no evidence that she was beaten by her husband soon before her death. It is also not known how frequently beatings used to be given to the deceased and what was the nature of the violence committed by the appellant Jagdish Prasad with her. The presumption of Section 113-A of the Evidence Act as noticed earlier is not available in this case.
22. In Shyam Lal vs. State of Haryana 1997 CRL. L. J. 1927, there was persisting dispute between the two sides regarding the dowry paid or to be paid and on account of failure to meet the demand for dowry. The deceased was taken by her parents to her house about one and a half years before her death. A patch up was thereafter made, and the deceased went back to her matrimonial home, about 10-15 days before the date she committed suicide. Noticing that there was no evidence to show that she was either treated with cruelty or harassed with demand for dowry during the period between her taking back to home and her tragic end, the Hon‟ble Supreme Court held that the appellant could not be convicted for the offence under section 304 -B IPC though the offence under section 498-A Crl.A.278/1999 Page 18 of 21 was made out from the testimony of PW-3, Bhagwan Dass father of the deceased.
23. In Mahender Singh vs. State of M.P. 1995 Supp. (3) SCC 731 the Hon‟ble Supreme Court held that in cases of alleged abetment of suicide, there must be proof of direct or indirect acts of incitements to the commission of suicide and the mere fact that the husband treated the deceased wife with cruelty is not enough.
24. In Sushil Kumar Sharma vs. UOI JT 2005 (6) SC 266, the Hon‟ble Supreme Court explained the distinction of cruelty as provided under section 306 and 498-A IPC observing that under section 498-A cruelty committed by the husband or his relative drives women to suicide while under section 306 IPC suicide is abated and intended.
25. In Amalendu Pal @ Jhantu vs. State of West Bengal Crl. Appeal No.2091 of 2009 decided on 11.11.2009, the Hon‟ble Supreme Court, inter alia, observed as under:-
"15. Thus, this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 IPC, the Court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an Crl.A.278/1999 Page 19 of 21 end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without their being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable.
16. In order to bring a case within the purview of Section 306 of IPC there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC."
26. The Hon‟ble Supreme Court also noted that charges under Section 306 and 498-A of IPC are independent of each other and acquittal of one does not lead to acquittal on the other though in order to justify conviction under the later provision there must be available on record some material and cogent evidence.
27. It cannot be said on the basis of the evidence to the effect that the appellant Jagdish Prasad used to give beatings to the deceased Sukhna Devi, that he intended that she should die or that he instigated her to commit suicide. Crl.A.278/1999 Page 20 of 21 However, the beatings given to her by the appellant Jagdish Prasad amount to cruelty within the meaning of section 498- A of IPC.
28. For the reasons stated in the precedent paragraphs the appellant Rukmini Devi is acquitted of the charges under section 306 and 498-A IPC. The appellant Jagdish Prasad is acquitted of the charge under section 306 IPC but his conviction under section 498-A is maintained. The sentence awarded to the appellant Jagdish Prasad under section 498- A being moderate, does not call for any interference. The appeal stands disposed of accordingly.
(V.K.JAIN) JUDGE DECEMBER 2, 2009 bg/RS Crl.A.278/1999 Page 21 of 21