Madhya Pradesh High Court
Girjashankar And Ors. vs State Of Madhya Pradesh on 19 April, 1988
Equivalent citations: 1989CRILJ242
JUDGMENT V.D. Gyani, J.
1. This appeal is directed against the judgment dated 6-8-1984, passed by the Xth Addl. Sessions Judge, Indore, in Sessions Trial No. 52 of 1984, thereby convicting the appellants of an offence punishable under Section 306, I.P.C. and sentencing them to undergo rigorous imprisonment for seven years. The appellants were charged with having committed the murder of Urmila on 16-8-1983 and in the alternative they were also charged with having abetted commission of suicide by Urmila - an offence punishable under Section 306, I.P.C.
2. Short facts of the case, as noted by the trial Court, are that appellant Dinesh was married to the deceased Urmila on 26-4-1982. Their conjugal life for initial few months was peaceful, but it was not to last long, as soon trouble started and the appellants, it is alleged, started ill-treating and goading Urmila Appellant Dinesh, who was unemployed wanted a certificate of having passed the VIIIth standard so as to enable him to procure a job and asked his father-in-law, Kundanlal (P.W. 1), a teacher, for issuing such a certificate, which he (Kundanlal) did not and expressed his inability therefor, which annoyed Dinesh, who made it clear to Kundanlal, who visited his daughter on the eve of DEEPAVALI in the year 1982 that he would not keep Urmila with him as he (Kundanlal) did not issue a certificate as desired by Dinesh, who could not procure a job for want of such a certificate. An Inland letter (Ex. P/1) of the said demand, though denied by Dinesh in his statement recorded under Section 313, Cr. P.C. is on record This letter has been proved by Kundanlal (P.W. 1), who was conversant with the writing of Dinesh and no cross-examination is addressed on this point. It is also mentioned in the first-information report, Ex. P/3, lodged just two days after the incident. Urmila was subjected to cruel treatment, as her father could not oblige Dinesh by issuing a certificate of having passed the VIIIth standard. There are allegations that not only Urmila was not treated as a wife by her husband Dinesh, but his parents (the appellants Girjashankar and Savitribai) had in fact started searching for another bride for him.
3. Urmila had also narrated these searching efforts made by her in-laws when she had come to her parents on the eve of Holi in 1983. Although, Hoslaprasad(P.W. 5) had turned hostile, yet he "admitted having written the letter, Ex. P/2, on record, which points to the efforts of appellants Girjashankar and Savitribai for a second marriage of their son, Dinesh. Urmila's father Kundanlal (P.W. 1) and Hoslaprasad (P.W. 5), who was an intermidiary between the two families, on coming to know of the efforts for a second marriage of Dinesh, contacted the appellants and tried to convince them as also Ghanshyam (P.W, 7) and his brother that they must realise that Dinesh, who was already married, should not be allured into a second marriage so as to ruin the life of Urmila. Hoslaprasad (P.W, 5) is a common relation of both, the appellants as well as Kundanlal (P.W. 1). Ghanshyam (P.W. 7) has admitted having visited Girjashankar in connection with the settlement of his sister's marriage, although according to him the negotiations were for Shyamu, the elder brother of Dinesh. Shyamu, who was in fact unmarried, was misrepresented by the accused-appellants as a married one, while the appellant Dinesh, who was already married, was misrepresented as unmarried. The witness Ghanshyam (P.W. 7) also turned hostile, but the letter, Ex. P/2, admittedly written by Hoslaprasad (PW. 5), is On record and it points to the misrepresentation and efforts put in by the parents of Dinesh for his second marriage. It was at the instance and intervention of Hoslaprasad (P.W. 5), that negotiations for a second marriage of Dinesh were dropped. When Urmila had come to her parental home on the eve of HOLI in the year 1983, she was in tattered clothes, as her new Saris and her other wearing apparels were taken away from her trunk. She was made to starve and work, like a bonded labour, right from daybreak till late in the night and subjected to mental and physical torture.
4. As the sort of treatment narrated above was going on unabated, on 16-8-1983, Urmila was no longer Urmila and her dead body was found in a well, situated at a distance of about a furlong from the house of the appellants. It was taken out with the help of some of the villagers. The Village Chowkidar informed the police, vide report, Ex. P/1, and Head-constable Thakur prasad (PW. 22) of police station Betma, came to the spot. He issued summons Ex. P/13 for inquest and an inquest-report, Ex. P/14 was prepared. As per this report, no external marks of injuries were found on the dead body of Urmila. It was sent for post-mortem examination, which was performed by Dr. Agarwal (PW. 18), who vide his report, Ex. P/18, opined that she died due to asphyxia and also reported that no marks of injuries were found on the dead body.
5. The trial court has taken note of the partisan and presumptive investigation conducted by the Headconstable Thakurprasad (PW. 22), who took up for granted that Urmila had committed suicide.
6. Urmila's father Kundanlal (PW. 1) and her mother were informed by Vishnudas (PW. 14) that Urmila had suddenly taken ill and was taken to the M.Y. Hospital at Indore. Naturally her parents immediately started for village Harnasa, the same evening. They reached the village around 2.00 A.M. and what is surprising to be noted is that when Urmila's parents reached the village, there was no male member of the family to be found in the house and despite questioning the appellant Savitribai and her another daughter-in-law Suman, they could not give any satisfactory information about Urmila. It is said that it was that time Kalabai, the mother of Urmila, had noticed blood-marks on the blouse worn by Sumanbai and when asked about it Sumanbai immediately got up without giving any reply and re-appeared after changing her blouse. It was here that Vishnudas (PW. 14), informed Kundanlal of the true state of affairs - that Urmila had in fact died. The parents returned to Indore the same day early-morning and straightway went to the hospital, where they found that by that time autospy had already been performed and dead body of Urmila was being brought out from the mortuary by appellant Girjashankar and his son Dinesh. Urmila's parents claimed that they had seen marks of injury just below the nasal bone and some blood clots on the upper lip, so also a few nail-marks on her neck. The dead body was taken to the village Harnasa in a tempo, where last rites were performed
7. On these facts the police filed a charge-sheet against the accused, who were tried for an offence punishable under Section 302, I.P.C. alternatively under Section 306, I.P.C. and convicted and sentenced them as stated above.
8. It was only on a number of petitions made by Urmila's father Kundanlal and addressed to higher Police Officials that an inquiry was ordered to be conducted by a District Superintendent of Police, who submitted his report, Ex.P/19, and thereafter ultimately an offence was registered against the appellants after much eddoes and on completion of investigation a regular charge-sheet was filed against them for an offence punishable under Section 302, I.P.C.
9. The accused-appellants pleaded not guilty to the charge. On trial, the trial Court, however, found them guilty of an offence punishable under Section 306, I.P.C. and sentenced them to undergo rigorous imprisonment for seven years.
10. Shri Panjwani, learned Counsel appearing for the appellants has made three submissions : (i) primarily offence under Section 306, IPC is not made out; (ii) if, at all any offence is made out, it is under Section 498A, IPC, but not against all the accused They can only be held to be guilty of their individual acts and not for their joint or vicarious liability; (iii) evidence adduced by the prosecution is wholly unreliable and unworthy of sustaining the conviction under Section 306, IPC. In order to support his argument, following decisions were relied upon : Balbir Singh v. State of Punjab 1987(I) Crimes 76, Chanchal Kumari v. Union Territory, Chandigarh and Ghudanlal v. State of M.P. 1988 M.P. Weekly Notes Note No. 8).
11. Before proceeding to deal with the submissions made by the learned Counsel for the appellants, it would be better to consider the authorities relied upon by him and the principles, if any, laid down therein. So far as the case of Balbir Singh (supra) is concerned, omissions in the first information report have been held to be sufficient to condemn the testimony of the person lodging the report and it further holds that a reprimand to wife by the husband for her conduct does not amount to cruelty. Suffice it to say that so far as omissions in the first-information-report are concerned, the law is well settled on this point. The maker of the first-information-report can always be confronted with the omissions obtaining in the first-information-report, but what is the net effect of such contradictions or omissions in the first-information-report is a matter of appreciation, which would differ from case to case. A reprimand by the husband to his wife for the alleged misconduct would not amount to cruelty, as has been held in Balbir Singh's case (supra), is again a matter which hinges on the facts of that particular case. So far as the other case of Chanchal Kumari (supra) is concerned, it has been noted by the Supreme Court that no dependable evidence as regards actual abetment was found in that particular case and in such circumstances the Supreme Court held that the accused were entitled to acquittal. What, has been held is true to that particular case. If no dependable or reliable evidence is available, no conviction for any offence can be recorded by any Court. It is a cardinal rule of criminal jurisprudence that in order to sustain a charge for any offence, be that under Section 306 or Section 302 or even Section 323, IPC., there has to be dependable reliable evidence before a conviction can be recorded. It remains to be seen whether in this particular case such dependable reliable evidence is available to sustain the conviction, as has been recorded by the trial Court. Decision in Ghudanlal's case (supra) is helpful only for the proposition that in a case where a charge has not been framed under Section 306 or Section 498A, IPC, the accused, who had been charged with offence under Section 307, IPC cannot be convicted on the aforesaid charges, but in the instant case a specific charge "under Section 306, IPC has been framed by the trial Court.
12. Shri Khan, learned Government Advocate appearing for the respondent State has in fact not disputed the propositions of law, as laid down in the abovementioned cases. What he contends is that there is overwhelming evidence on record to sustain the appellants' conviction.
13. Coming to the evidence, which has been criticised as unreliable, Shri Panjwani attacked the report, Ex.P/3, as ante-timed. Learned Counsel submitted that Ex.P/3, which bears the date 18-8-1983 and Ex.P/3A, bearing similar date and recorded by H.C. Thakur prasad, as per the endorsement-A to A on Ex.P/3A, were ante-timed. This criticism would possibly have carried some force, had there been even a remote suggestion to Kundanlal(PW. 1), the person who made the report or the H.C. Thakurprasad, the person, who received it. Going through the evidence of these two witnesses, it is clear that no such suggestion had even been thrown to these witnesses in their cross-examination. There is absolutely no foundation for the criticism levelled against the report, Ex.P/3 and Ex.P/3A. It was also urged by the learned Counsel for the appellants that it was for the prosecution to have established as to when Ex. P/3 or Ex.P/3A was received at the police station. No doubt the burden lies on the prosecution, but it stands amply discharged when Kundanlal (PW. 1) made a categorical statement before the Court that he reached the police station Betma on 18th and submitted the written-report, Ex.P/3. It is not that the statement must always be made by a member of the police force. A report made to the police can be proved by the witness, who made it and it is the maker of the report, who has proved this fact that the report was lodged on 18th and H. C. Thakurprasad (PW. 22), has not been asked a single question about it.
14. It was next urged that the Inland-letter, Ex. P/1, which contains the demand by Dinesh for a certificate of having passed the VIIIth standard, is not duly proved. Learned Counsel for the appellants contended that the same has not been proved to have been written by the appellant, Dinesh. According to him, an handwriting-expert should have been examined . by the prosecution to prove the authorship of this letter.
Kundanlal (PW. 1) in his evidence has stated about the letter, Ex.P/1, which was received by him on 20th of July, 1982. He has deposed to the effect that he was conversant with the writing of the accused-appellant Dinesh - one of the recognised modes of proof. So far as the question of obtaining opinion of an handwriting expert is concerned, it should be remembered that it is not a case of forgery so as to make it incumbent on the prosecution to have got the document examined by an expert. It may also be noted that Kundanlal (PW. 1) has not been asked a single question in his cross-examination as regards his being conversant with the writings of accused Dinesh. Thus, the question whether the letter, Ex.P/1, is duly proved, as has been raised by the learned Counsel, does not arise in face of evidence of Kundanlal (PW. 1). Although, the accused, while being examined under Section 313, Cr. P.C., denied having written any such letter or that it bore his signature. He has also denied that he ever asked his father-in-law to give him a certificate of having passed the VIIIth standard examination. Notwithstanding such denial on his part, the authorship of the letter is proved. The fact that not a single question has been put to witness Kundanlal (PW. 1) in his cross-examination, about its veracity, cannot be doubted simply because its author shop has been denied by the accused.
15. It was argued by Shri Panjwani, learned Counsel for the appellants that the prosecution has not examined any independent reliable witnesses nor has it proved any specific acts of cruelty. It was further contended that the acts of cruelty, as have been found to be proved by the trial Court, do not constitute cruelty, as they are all of an insignificant nature. The alleged mal-treatment or orduous work, according to the learned Counsel is a part of rural life in any village.
16. So far as the question o f independent reliable witnesses is concerned, learned Counsel is not right in his submission. There are independent witnesses examined by the prosecution. Bhuribai (PW. 3), Madansingh (PW. 5) and Sanjabai (PW. 16) have been referred to and relied upon by the trial Court. Learned Counsel was at pains to point out front their evidence any such thing, which would adversely affect their reliability. It is also incorrect to say that specific acts of cruelty have not been proved by the prosecution. Cruelty does not necessarily mean physical chastisement. Section 498A, IPC and Section 143 of the Evidence Act are of wide amplitude. Explanation appended to Section 498A, IPC explains as to what cruelty means. It should not be narrowly construed so as to suggest or embrace acts of physical torture alone, as suggested by the learned Counsel for the appellants and it should also be borne in mind in his context that such acts of cruelty are invariably committed within the four walls of a house and naturally, eyewitnesses to such incidents are not easily available.
17. Trial Court, taking note of various instances of maltreatment, harassment, mental and physical torture meted out to Urmila, has come to the conclusion that there was a strong motive for the appellants to do away with Urmila. The efforts the appellants were putting in f or a second marriage, as discussed above, have been rightly held to have been proved The above-named witnesses have deposed to the maltreatment and starvation to which Urmila was subjected to. It has also been noted by the trial Court that there was no suggestion thrown to these witnesses that they were either inimical or hostile for some reason or other. Accused-appellants in their statements, recorded under Section 313, Cr. P.C., have also not stated a word suggesting that the abovenamed witnesses were inimically disposed towards them. In such circumstances the submission made by Shri Panjwani, learned Counsel for the appellants, that no independent reliable witnesses have been examined by the prosecution to prove cruelty is wholly baseless and as such it cannot be accepted.
18. Sanjabai (PW. 16) is an old woman passed 60. It was she, who had visited Urmila about a month before her death as Urmila was having stomachache and she was found weeping. Sanjabai had massaged her stomach. On being asked about the cause of pain, Urmila told her that she was made to starve by her mother-in-law, Savitribai (appellant No. 2) and the witness had, therefore, reprimanded Girjashankar for this behaviour and adviced him to provide Urmila proper food.
19. Learned Counsel for the appellants submitted that the statement of this witness does not help the prosecution. Here the learned Counsel is not right. It is not uncommon amongst villagers to call an elderly lady for ailments of a minor nature. What emerges from her evidence is the fact that Urmila was subjected to starvation. There" is evidence of Bhuribai (PW. 3), yet another lady of 55 years of age, who had found Urmila weeping at the well, just 2 days before the incident and she was also told by Urmila on being asked that she was weeping because of starvation. Evidence of these witnesses point to the continuous course of conduct indulged in by the appellants in starving Urmila for about a month prior to her death. Madanlal (PW. 10) is the witness, who had seen Urmila being beaten by the appellants Savitribai and Dinesh.
20. Shri Panjwani, learned Counsel pointing to the omissions obtaining in the evidence of Sanjabai (PW. 16) referred to Ex.D/13. Shri Khan, learned Govt. Advocate submitted that this omission is hardly of any significance. The witness in her cross-examination stated that she had never met Urmila at the well and she was confronted with her case-diary statement, Ex. D/3 that Urmila had met her about 2 or 3 months prior to the incident at the well. Firstly, there is no material contradiction and secondly, her evidence is on the point that she had visited Urmila about a month prior to her death when she had stomach pain. On this material point there is absolutely no contradiction. The evidence of Madanlal (PW. i5) was criticised on the basis that he disclosed for the first time before the Court that he had seen Urmila being beaten by the appellants Savitribai and Dinesh just 4 or 6 days prior to her death. This witness had deposed that about 4 or 6 days prior to her death, while she was going to his well, he had seen Urmila being beaten by the appellants Savitribai and Dinesh. In his cross-examination he admitted that this fact he was disclosing for the first time before the Court. It was not disclosed to the police, as not asked. Going through the cross-examination, the question, which appears to have been asked to this witness was not with regard to the actual beating, but the time of beating, whether it was 4 or 6 days prior to Urmila's death. It was this very fact, which according to the witness, he was deposing for the first time in the Court. There is hardly any significant omission so as to discredit the testimony of this witness and it also needs to be noted that his previous statement has not been exhibited.
21. Learned Counsel for the appellants was highly critical about the evidence of Kundanlal (PW. 1), who according to him had all along been improving upon his earlier versions in the petitions that he made to the higher police officials. Certain omissions in his petitions made from time to time were projected. No doubt, there are omissions, but these omissions relate to the specific acts, which while petitioning, a man like Kundanlal (PW. 1), a Primary-School teacher, should have included in his petitions, is a matter, which should be viewed keeping in mind Kundanlal himself, one who was bereaved of his daughter and had been petitioning against the callousness of police for not taking any action against the culprits. He should have included all these acts and omissions before him while petitioning is rather too much to expect of a bereaved father. Going through the petitions, right from the one lodged at the police station Betma, Ex.P/3, Ex. P/-4 and Ex.P/5, the central theme of all these petitions is the grievance, which he had against the police inaction and it was in that context that he had narrated as to how his daughter was ill-treated by her in-laws. The uppermost thought in such circumstances would be to impress upon the authorities to direct concerned police officials to take immediate action against the guilty and not for enumerating each and every woe of his daughter.
22. Shri Panjwani, learned Counsel also referred to Ex.P/19, and pointed out that the D.S.P., who had conducted an inquiry had examined sixteen, witnesses, but their statements had not been produced by the prosecution. As has been noted above, it is a sad commentary on the conduct of the police that instead of straightway registering an offence and proceeding against the guilty ones, the complainant was required to make repeated petitions to higher authorities, including the Inspector General of Police and it was then and then alone that an inquiry was held. The question is, whether such an inquiry in the ordinary course of law was at all necessary. The fact that such an inquiry was required to be held is itself goes to show how slow the police was in the discharge of its duty. Had there been fair investigation, right from the beginning, which ought to have been, there would have been no need for such an inquiry. If the accused in fact desired any such statements to be produced at the trial, the same could have been done by making an application to the trial Court, but the record shows that no such application was made by the accused. No grievance, therefore, can now be made at this stage of appeal. Statements of these witnesses were certainly not recorded under Section 161, Cr. P.C. and the prosecution did not rely on them. The report, Ex.P/19, submitted by the D.S.P. was very much with the accused. If they had really so desired, they could have applied for production of such statements. There is no justification in making a grievance at this stage, which is made for the sake of making only.
23. It was also submitted by the learned Counsel that the statements of witnesses were recorded at a very late stage. Shri Khan, learned Govt. Advocate pointed out and rightly so that the first-information-report in this case was lodged and registered at police station, Betma on 13-12-1983, vide Ex.P/20, and Crime No. 227 of 1983, under Section 306/34, I.P.C. was registered at the police station Betma. It was only after this registration of crime that the statements of witnesses under Section 161, Cr. P.C. have been recorded. In this view of the matter, it cannot be said that statements were recorded at a late stage. The initial delay, which has been caused, is solely due to the callousness and collusion on the part of the police.
24. It has not been disputed before me that Urmila, as per the post-mortem examination-report, Ex.P/18A, proved by Dr. Agrawal (PW. 18), died of asphyxia. The trial Court has noted that the H. C. Thakurprasad (PW. 22), who went to the village Harnasa on a report, Ex.P/21, made by the village Chowkidar, has not discharged his duties faithfully and honestly. He took it for granted that Urmila committed suicide. Initial investigation, as conducted by this witness, H. C. Thakurprasad (PW. 22), is wholly partisan. He has admitted that he did not examine the neighbours. Thus, the investigation suffered at its initial stage, but that is not to suggest that the prosecution is absolved of the burden of proof, which it is supposed to discharge.
25. Shri Khan, learned Govt. Advocate, referring to the assumed silence of the accused-appellants about the death of Urmila, who died just within 15 months and 20 days of her marriage, Shri Khan urged that presumption under Section 113A of the Evidence Act, should be invoked against them. According to the appellants, Urmila left for answering nature's call around 4.00 a.m. and by 6.00 in the morning it was aired that her dead body was in Baliram's well, which (is) just at a distance of about one furlong from the appellants' house. In between there are two other wells. Village people had gathered at the well, where appellants Girjashankar, Dinesh and his Bhabhi was also present. Although according to the appellants, Urmila had left home around 4.00 am." and had not returned for a pretty long time for about two hours, yet none of the appellants moved out of their house in search of Urmila. It is also significant to note that how the fact came to light that Urmila's dead body was lying in Baliram's well when it was not floating. There is evidence of Vasudeo(PW. 11), to the effect that 3 days after Urmila's dead body was brought out of the well Bhuwansingh(PW. 20) had stated in the presence of other villagers that he had seen around 4.00 a.m. 2 or 3 persons coming from the well towards the village with a cot Kundanla (PW. 1) has also deposed about this fact stated by Bhuwansingh (PW. 20) and their omission in Vasudeo's case-diary statement, Vishnudas (PW. 14), who was declared hostile and Bhuwansingh (PW. 20) denied having made any such statement. Bhuwansingh could not be declared hostile as his statement was not recorded during the course of investigation. It has come in the evidence of Kalabai (PW. 13), mother of Urmila, that when she came to the village on receiving the information, she found blood-stains on Sumanbai's blouse. When she asked her about it, Sumanbai did not reply and silently went inside and changed her blouse and returned after changing her blouse. This fact finds mention in Ex. P/14 a petition made by Kundanlal(PW. 1). Hoslaprasad (PW. 5) has stated that when he was in village Depalpur, one Bajesingh from village Harnasa had told him that the wife of Dinesh was thrown into a well. When he came to village Harnasa, he inquired of Savitribai as to what the villagers were talking about, but Savitribai did not utter a word In the next breath the witness said that Savitribai stated, she did not know about it. People might talk anything. They were sleeping. Pausing for some time the witness Hoslaprasad further deposed that Savitribai told him that Urmila had gone out around 4.00 a.m. and thereafter her dead body was found in the well Referring to this statement Shri Khan, learned Govt. Advocate submitted that the accused, who were also charged with the murder of Urmila under Section 302, I.P.C. deserve to be convicted thereunder.
26. Trial Court having considered the evidence has rightly come to the conclusion that the charge under Section 302, I.P.C. is not made out. Suspicions, however strong, cannot take the place of proof.
27. While Shri Khan, learned Govt. Advocate craved for appellants conviction for murder, Shri Panjwani, for the appellants, contended that the case of abetment of suicide itself is not made out. According to him, the acts of cruelty found proved by the trial Court, do not constitute abetment.
From the evidence discussed above, the following circumstances emerge:
(1) There was a strong motive for the appellants to do away with Urmila, so as to pave the way for second marriage of Dinesh;
(2) Purposeful premeditated acts of maltreatment, harassment and torture, both physical as well as mental, against Urmila;
(3) Evincing of depraved indifference to human life by the appellants and their recklessly engaging in conduct, loss of food and rest, leading to starvation of Urmila, making her work from day break to late hours in night;
(4) Urmila's dead body being found in a well on 16-8-83, within 15 months and 20 days of her marriage;
(5) Injuries as seen by some of the witnesses, and lastly, (6) The assumed silence of the accused in the matter.
28. It may be noted here itself that as the charge under Section 302, I.P.C. has not been held to have been proved against the injuries as such by Urmila's mother, Kalabai, and other witnesses - these injuries are not taken into account, while considering the question of abetment.
29. According to Shri Panjwani, Section 306, I.P.C. was intended to meet cases arising out of 'Sati'- and it has no application to the present case. There is no warrant for such a narrow interpretation of Section 306, I.P.C., as suggested by the appellants' counsel. Shri Khan, on the other hand submitted that the calculated acts committed by the appellants fully attract Section 306, I.P.C. to the present case.
30. Section 107, I.P.C. defines abetment as comprising:
(a) instigation to commit the offence;
(b) engaging in conspiracy to commit the offence, and
(c) aiding the commission of an offence.
Abetment, thus necessarily means some active suggestion or support to the commission of the offence. The word 'instigate' literally means to goad, 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, or language, direct or indirect, whether it takes the form of express solicitation or of hints, insinuation or encouragement. It is also not necessary that the instigation should be only in words and may not be by conduct. Direct evidence of any instigation or aid is not necessary. It is a matter, which can be deduced from the circumstances.
31. It is obvious that where there is confederacy in committing criminal acts, such conspiratorial acts are not committed within the glare of publicity, so as to expose the criminals to the view of others. As of necessity, the proof of such crimes is to be found in circumstantial evidence, and these circumstances apart from the actual acts of physical torture, have been noted and discussed above. The appellants were determined for a second marriage of Dinesh, in the hope of getting a charming girl as bride for him and still more alluring was the dowry she would have brought. For a girl like Urmila, bread and brought up in traditional rural setting, the search for a new bride for her husband was tantamount to death. She suffered in silence loss of food and rest, physical torture, harassment and humiliation, but the search for a new bride for her husband was a severe blow to her very existence. It has come in evidence and held to have been proved by the trial Court that the appellant Dinesh had stopped treating her as his wife a few months prior to the incident. Apart from the evidence of Kundanlal and Kalabai, there is direct evidence of Madansingh (PW. 15), who had seen her being beaten and the evidence of Bhuribai (PW. 3) and Sanjabai (PW. 16), which points to the cruel conduct designedly indulged in by the appellants. Taking a total view of evidence and applying the test of abetment, the finding of guilt recorded against the appellants by the trial Court cannot be said to be improper.
32. It needs to be noted that it is not necessary in law for the prosecution to prove that the actual operative cause in the mind of the person abetted was the instigation and nothing else. When purposely or knowingly a partisan result is caused, and the actual result is within the purpose or contemplation of the abettor, (and there is overwhelming evidence in this case to hold that such result, as was actually caused, was within the purpose and contemplation of the appellants), they can be held liable for abetting suicide.
33. Explanation 2 to Section 107, I.P.C. covers abetment by aid. Its essential ingredients are:
(a) the act or omission, which constitutes the aid must have been done intentionally,
(b) the aid must be by positive act or illegal omission.
Counsel for the appellants argued that it was only Urmila's husband, who was legally responsible to maintain his wife and her father-in-law and mother-in-law were not bound to maintain her. If there was any omission, it was on the part of Dinesh only and not other-appellants. The submission is ill-founded. Subjecting to starvation cannot be equated with maintenance. Depraved indifference to the very human existence of Urmila, as evinced by the designedly conduct indulged in by the appellants, intending Urmila to put an end to her life, is aptly borne out from the evidence on record. The relationship between appellants conduct and result (Urmila's death) is fully established by the prosecution. In this connection it may be noted that 'conduct' does not merely mean an act or omission, but it also means the accompanying state of mind or where relevant, as in the instant case, a series of acts or omissions.
34. Learned Counsel for the appellants submitted that the acts proved against the appellants would bring offence within the purview of Section 498A, I.P.C. and not under Section 306, I.P.C. Learned Counsel referred to the explanation to Section 498A, I.P.C. and submitted that the accused could not have been legally convicted under Section 306, I.P.C. Shri Khan, on the other hand, supported the conviction under Section 306, I.P.C. as according to him, the evidence on record fully justifies it.
35. Section 498A, I.P.C. was introduced in the Indian Penal Code by Criminal Law (Second Amendment) Act of 1983, which came into force with effect from 25th of December, 1983. This Section reflects the anxiety to extend protection of the weaker spouse. Traditionally in any society, a woman is subjected to the whims and caprices of man, especially when it relates to the relationship of husband and wife. Life for a woman in the family of the husband is sometimes so intolerable and so miserable that it drags the woman towards suicide and it is in such cases that Section 498A, I.P.C. comes into play. The basic difference that lies between the two Sections is that of 'intention'. Under Section 498A, I.P.C. cruelty committed by the husband or his relations drag the woman to commit suicide, while under Section 306, I.P.C., suicide is abetted and intended Trial Court has noted and rightly so, that there was strong motive for the appellants to do away with Urmila, and it was the strong motive, which impelled, them to perpetrate those acts of cruelty they committed. In the circumstances, their conviction under Section 306, I.P.C. is proper and does not call for any interference.
36. In view of the foregoing discussion, this appeal is dismissed. The conviction, as recorded against the appellants by the trial Court is confirmed So far as the question of sentence is concerned considering the nature of crime committed and the subsequent indulgence shown by the appellants, in shielding it by colluding with the investigating agency, to serve their own ends, the sentence as awarded does not call for any interference. It is also, therefore, maintained. Appellants should surrender to their bail bonds.
37. Before parting with this appeal, a parting reflection about the investigation has become necessary:
No police officer can do justice to himself or to other unless he is true to his duties. Great demands are put on the policeman, who first arrives at the scene of a major crime. It is also impossible to visualise or comprehend the manifold duties devolving upon such police officers, but what is certain and required of a police officer is the devotion of duty and the first condition of any investigation is fairness of approach and keen desire to find out the truth and the true criminals. In the instant case, Thakurprasad, Head-constable from police station Betma (PW. 22) was the first policeman to arrive at the scene. The way he has conducted the initial investigation, as has been rightly noted by the trial Court, is highly objectionable. He took up for granted that Urmila committed suicide. He did not record the statements of neighbours nor did he proceed with the investigation in a fair manner. The story does not end here, for almost 4 1/2 months, Kundanlal (PW. 1), the bereaved father of Urmila, was made to run from pillor to post to see that the culprits are brought to book, but to no avail. He was required to make petitions to the higher police officials and it was only then that an inquiry was ordered to be held and a D. S. F. was deputed to hold such an inquiry. In case of dowry deaths, it hardly commends any investigating or law enforcement agency to create such a situation by thwarting investigation defeating the very intent of law by callous indulgence and neglect of duty, necessitating an inquiry, being held before registering a crime and proceeding with the investigation in the ordinary course of law.
38. On the one hand, the Parliament in order to afford protection to the weaker spouse enacted Section 498A, I.P.C and introduced Section 113 in the Evidence Act, but the police agency entrusted with the task of its enforcement and implementation of this law has not merely failed in its duty, but what is more deprecable is the fact that the investigating agency was keenly interested in screening the culprits. It was the appellants counsel Shri Panjwani, who during the course of his arguments stated that the appellant Girjashankar is a retired police Head constable and that possibly explains the callousness evinced by the local police in not merely deferring the investigation, but also defeating its purpose till at last it was ordered by the higher police officials after about 4 1/2 months of the incident/Such a duty and conduct on the part of investigating agency would deserve to be condemned in no uncertain terms.
39. On the one hand there is no dirth of reported case-law, where the conduct of Investigating Officers has come to a sharp criticism by Courts for bolstering up cases and on the other hand this case provides a glaring example of all out attempts to screen the criminals simply because he happened to be a retired police Headconstable. It is only to be hoped that such callousness and disregard to duty must be avoided in future if the investigating agency of police is to command its confidence to the people that it deserves.