Chattisgarh High Court
Deepak vs The State Of C.G on 28 April, 2016
Author: P. Sam Koshy
Bench: Chief Justice, P. Sam Koshy
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRIMINAL APPEAL NO. 46 OF 2001
Deepak, aged 31 years S/o Shri Shobhraj Kotwani R/o Main Road, Torwa,
Police Station, Torwa, District Bilaspur (CG).
... Appellant
Versus
State of Chhattisgarh, through Police Station, Torwa, District Bilaspur.
... Respondent
For Appellant : Mr. Surendra Singh, Senior Advocate along
With Mrs. Meena Shashtri, Advocate.
For Respondent-State : Mr. U.K.S. Chandel, Panel Lawyer.
Hon'ble The Chief Justice
Hon'ble Shri Justice P. Sam Koshy
C A V JUDGMENT
Delivered on : 28/04/2016
Per P. Sam Koshy, J.
1. Challenge in the present appeal is to the judgment of conviction and sentence dated 9.1.2001 passed by the First Additional Sessions Judge, Bilaspur, in Sessions Trial No. 80 of 1996 convicting the Appellant for the offence under Sections 498-A and 304-B of IPC. He has been sentenced to undergo rigorous imprisonment for one year with fine of Rs.1000/- with default stipulation under Section 498-A of IPC. Similarly, for the offence under Section 304-B of IPC he was sentenced to life imprisonment with fine of Rs. 5000/- with default stipulation.
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2. Case of the prosecution is that on 5.3.1995 the Appellant had taken the dead body of the deceased, Varsha @ Sadhna to the clinic of Dr. Ramjanm Prasad Verma (PW-2), who, on examination, declared the deceased to be brought dead. The doctor, in turn, gave intimation of death to Police Station, City Kotwali, Bilaspur. Based upon the said intimation, P.S. Baran (PW-5) recorded FIR and in the course took the statement of the brother of the deceased, Tolaram (PW-9) on 5.3.1995. Based upon which, an FIR was lodged for offence under Section 304-B IPC, Exhibit P-
10.
3. The deceased was married to the Appellant on 5.2.1993. In the intervening night of 4th & 5th March, 1995, the deceased is said to have been found hanging from the ceiling fan in her room. The Appellant is stated to have brought her down and took her to the clinic of Dr. Ramjanm Prasad Verma (PW-2) who declared her brought dead. Subsequently, the said witness (PW-2) himself had conducted the post-mortem, Exhibit P-4, on 6.3.1995 at 9:00 am and found the following injuries on the body of the deceased :-
1. Contusion size 1½" x1", just above occipital protuberant.
2. Contusion size 2.5cm x 0.3cm over right side of face horizontally placed to the angle of mouth.
3. Abrasion size 1/2cm x 1/2cm over left side upper part inner surface of labia majora.
4. Blood clot over left pinna, due to abrasion of ear holes of ear tops. Size is very small and tops are inside blood clot present over ear tops of left side, simple within 6 hours before death, seems to be produced by struggle or quarrel by ear tops.
5. Ligature mark - substance used for hanging not produced nor found with body.-3-
6. Position of mark - above thyroid, between the larynx and body of mandible in center, size 1 cm in breadth. Direction
- obliquely upwards, along the mandible.
7. Extension - on right side up to posterolate part of base of skull size 2cm breadth, on left side up to the angle of mandible breadth 1cm, total length of ligature mark is 27cm.
8. Character of mark - chocolate brown coloured skin. No abrasion, on internal examination base is glistening, margins are congested. Neck is stretched and elongated, head tilted to right side.
9. Epiglottis congested. Trachea normal & healthy. Both lungs were congested. All chambers of heart were empty of both sides. Base of tongue is in contact with roof of oral cavity.
10. Internal examination of uterus - normal uterus containing full fetus well developed, still birth male child, invertex presentation, placenta normal. Weight of baby 3kg 300 gr.
Length of baby 48cm, circumference of head 33cm.
The Doctor gave an opinion that the cause of death was due to asphyxia resulting from ante-mortem hanging and time elapsed since death was approximately 33 to 48 hours.
4. The post-mortem report also discloses that the deceased was in an advanced stage of pregnancy. A fully developed still born male child weighting 3kg & 300gram, length of the baby was 48cm and the circumference of the head was around 33cm, was present inside the foetus.
5. During the course of investigation, the police authorities found that the deceased, who was married to the Appellant in February, 1993, was shortly after the marriage, i.e., about a period of less than a month's time, subjected to cruelty and harassment on the issue of insufficient dowry and expectations of the family members in the house of the Appellant. Right from the initial days itself she was not happy with the attitude of the -4- Appellant as well as the other family members in her matrimonial home who had constantly treated the deceased in an inhumane manner at times, not being provided food and water and forced her to do the entire household chores without receiving any sort of love and affection from the family members in the matrimonial home and at the same time she was being subjected to ill-treatment, cruelty and harassment.
6. In between, when she was undergoing this trauma of inhumane attitude and behaviour on the part of the family members in her matrimonial home she conceived. The family members in the matrimonial home did not want the deceased to undergo the process of delivery of the child at the matrimonial home. Rather, they wanted the deceased to go her parental home for delivery to save the expenses which otherwise would have to be incurred in the course of delivery.
7. The deceased was in the habit of writing letters at regular intervals to the members at her parental home. In the course of investigation, the family members of the deceased made a categorical statement against the members of the matrimonial home of the deceased informing that she was being tortured and subjected to ill-treatment, cruelty and harassment right from the initial days of her marriage till the date of her death. On basis of the statement made by the family members of the deceased, a case was registered against the Appellant and his family members totaling eight in number and they were put to trial for the offence under Sections 302/34, 304-B, 306 and 498-A of IPC.
8. During the course of preparation of inquest, a diary was also recovered wherein it has been reflected that she was being subjected to ill- treatment, torture, harassment and cruelty since 1992. During trial, it was -5- found that the deceased had died within seven years of marriage and death was unnatural and there were signs of ill-treatment, cruelty and harassment on the part of the accused persons.
9. The Trial Court after recording the evidence and on appreciation of entire records came to the conclusion that the prosecution has not been able to establish the offence charged against the other members of the family except the Appellant. Accordingly, the Trial Court vide impugned judgment acquitted the other accused persons from the charges that were levelled against them and convicted the Appellant for the offences punishable under Sections 498-A and 304-B of IPC.
10. Learned Senior Counsel for the Appellant submitted that the entire conviction of the Appellant was based on the evidence of the near relatives and interested witnesses produced by the prosecution, i.e., Father, two Brothers, one Sister and cousin of the deceased. It was also contended that the Court below has also relied upon the letters written by the deceased to her parents and other family members, more particularly the three letters (Exhibits P-18, P-22 and P-30). Further substantiating his submissions, learned Senior Counsel would submit that there is absolutely no proof of demand of dowry being made by the Appellant, nor is there any proof of deceased being subjected to cruelty or harassment by the Appellant or any relative of the husband soon before her death so as to attract the provisions of Section 304-B of IPC. Referring to various witnesses examined by the prosecution, learned Senior Counsel submitted that from the evidence which have come on record it is evidently clear that the proximity of time from the demand of dowry till the date of death of the deceased was too far to be brought within the terms soon before her death -6- and the benefit of which ought to have been given to the Appellant. Further, referring to evidence which have come on record, it was submitted that there is no iota of evidence through any of the prosecution witness whereby it can be said that the Appellant and the other family members had been specifically subjecting the deceased to assault, ill-treatment or cruelty. All the allegations levelled by the complainant are general in nature and omnibus and does not make out any of the ingredients as required under Section 304-B of IPC.
11. Referring to a decision of the Supreme Court reported in AIR 2001 (SC) 3837 (Kumar v. State of Chhattisgarh), learned Senior Counsel submitted that the importance which the Court below has given to Exhibits P-18, P-22 and P-30 is totally uncalled for, for the reason that the Supreme Court in the said judgment has categorically enunciated the principles on how letters seized from the place of incident have to be read and interpreted. Learned Senior Counsel submitted that the contents of the letter have to be given the plain and literal meaning and it cannot be read in a manner to give a different interpretation which is not mentioned or reflected in the wordings of the letter. Referring to the said exhibits he submitted that the simple language used in the said three letters do not attribute any demand for dowry or a specific instance of ill-treatment, cruelty or torture of the deceased at the hands of the Appellant or for that matter any other family members.
12. Learned Senior Counsel referring to the prosecution witnesses submitted that the statements which have been taken into consideration by the Court below for bringing the case against the Appellant for the offence under Section 304-B of IPC, none of the episodes or incidents relate to -7- soon before the time of the death of the deceased. The incidents which have been narrated or for that matter which have been reflected from the exhibits referred to were of the year 1993, that is a period of almost two years back from the date of death of the deceased. He further submitted that even otherwise the demands which have been reflected in the statements of the prosecution witnesses cannot be brought within the ambit of demand of dowry but were mere customary gifts and presents which are accepted and given and at times demanded, the same cannot be said to be demand of dowry. It was further contended by the learned Senior Counsel that in fact the real cause for the deceased to commit suicide is the fact that there is evidence on record which shows that the Appellant had asked the father of the deceased for taking the deceased to her parental home for the delivery of the child. This demand of the Appellant was turned down by the father of the deceased stating it to be against the family custom, tradition and honour and that she should undergo delivery at her matrimonial home. On this issue, there appears to have been some quarrel or fight between the Appellant and the deceased leading to frustration and anxiety by the deceased.
13. Learned Senior Counsel also submitted that there was another reason for discord between the husband and wife. The deceased was a post-graduate having done her Master's degree in Art, whereas the Appellant was only 10th Class pass and this academic mismatch can also be one of the reasons which might have aggravated and led the deceased to end her life.
14. Learned Senior Counsel for the Appellant took the Court through the provisions of Section 304-B of IPC and suggested that for attracting the -8- liability under Section 304-B the factors which have to be proved beyond all reasonable doubts by the prosecution are; firstly, that the death of the deceased occurred under unnatural circumstances; secondly, the death occurring within seven years of her marriage; thirdly, that the deceased being subjected to cruelty and harassment at the hands of the husband and in-laws soon before her death and, lastly that the cruelty and harassment must be in connection with demand of dowry.
15. Lastly, learned Senior Counsel for the Appellant has made two alternative submissions that even if the prosecution case is accepted as it is in toto, the only offence which at best could be saddled against the Appellant is one under Section 498-A of IPC. Further, if for any reason, this court comes to the conclusion that offence under Section 498-A of IPC or for that matter 304-B of IPC is not made out, but the offence which is established against the Appellant is to be one under Section 306 of IPC then taking into consideration the incident to be of the year 1995, i.e., more than 21 years ago, the sentence part may be suitably reduced. The Trial Court, according to the Appellant, has impliedly acquitted the Appellant and other accused persons from the said charges as the Appellant was convicted under Section 304-B and 498-A of IPC though he was initially charged with under Section 306 of IPC also.
16. On the other hand, learned Counsel for the State opposing the appeal vehemently argued that it is a well reasoned judgment which does not warrant any interference. If the entire evidence which have come on record more particularly the correspondences which the deceased had made to her family members and the diary which was seized at the time of the inquest though it has not been exhibited but the contents of those -9- clearly reflect the extreme cruelty which was being imposed on the deceased right from the initial days of her marriage and the letters speak volumes of the mental agony and torture which the deceased was facing at her matrimonial home.
17. So far as the argument of the Appellant that there was no evidence of any ill-treatment or cruelty soon before death is concerned, the State Counsel referred to the date of marriage which was in the month February, 1993 and took the Court through the prosecution evidence as also the letters which the deceased had been writing to her family members at her parental home which would indicate that it was not a case where the deceased was subjected to ill-treatment or torture on one or two instances in the year 1993 but the correspondences reflect that the cruelty and ill- treatment in fact started just after about twenty-twenty five days after her marriage and continuously existed forcing the deceased to a stage where the level of frustration led her to conclude that there was no other escape from the cruelty and ill-treatment which was being meted by the Appellant and his family members to the deceased except by ending her life early by committing suicide.
18. Learned State Counsel further submitted that there cannot be a straightjacket formula to assess the period soon before the date of death. According to him, the period had to be looked into cumulatively, the entire evidence which has come on record and in the instant case it would clearly reflect that right from the time immediately after about twenty-twenty five days from her marriage she had been narrating of ill-treatment, cruelty and the harassment at the hands of the Appellant and his family members. The attitude of the Appellant and the family members in the matrimonial home -10- towards the deceased on some pretext or the other, be it her looks, be it her complexion, be it the gifts which were given at the time of marriage, be it the non-acceding to the demand of money made by the Appellant, if cumulatively taken into consideration it would clearly establish that there was no wide gap between the alleged ill-treatment, cruelty and the death of the deceased. It is a case where the contents of the letters written by the deceased to her family members at her parental home would suggest that right from her initial days of marriage her life had been made a hell by the Appellant and his family members and she had reported the fact that in spite of all adversities at her matrimonial home she was undergoing the ordeal of agony, trauma, anxiety by facing them all smilingly for her parents honour.
19. It was further submitted by learned State Counsel that on the issue of demand of dowry there can be different ways for demanding dowry and at times it can be direct or indirect. In the instant case, the attitude of the Appellant and his family members suggests to safely infer that they were regularly demanding something or the other from the family of the deceased. Referring to the prosecution evidence, he further stated that the last demand which was being made by the Appellant and his family members was to take the deceased to her parental home for her delivery so that the Appellant and his family members would not have to bear the expenses which they would otherwise have to bear if the deceased would have to deliver a child at her matrimonial home. When this was communicated to the father of the deceased he taking into consideration the custom and the family culture refused to accede. At this juncture, Counsel for the State referred to Exhibit P-22 which is a letter written by -11- the deceased to her family members wherein she states that it is money which the Appellant and his family members give more importance to rather than love, care and affection or other feelings, and he suggested that the fact that the Appellant and his family members wanted the deceased to have the delivery at her matrimonial home was an indication of it in spite of it being against the family tradition and customs.
20. The State Counsel further referred to the post-mortem report which also suggest of certain injuries on the body of the deceased and which again is an incriminating factor for which an adverse inference has to be drawn also taking into consideration the fact that the deceased was at an advanced stage of pregnancy. According to the Counsel for the State there is always a legal presumption which has to be drawn and in the instant case there is more than one reason and evidence which has come on record which should be taken note of for drawing a legal presumption against the Appellant. Thus, in the facts and circumstances of the case, the State Counsel submitted that there is no scope of interference in the judgment under challenge and that the appeal preferred by the Appellant being devoid of substance the same should be rejected.
21. We have heard learned Counsel for the parties, perused the evidence on record as also the impugned judgment.
22. Solemnization of marriage is an important social function amongst the followers of all religions and classes. In our Indian society apart from its natural significance it has still more social significance, as it creates a bond not only between the two individuals but between the two families. Institution of marriage is considered to be a universal truth, relevant today also. It is a noble contract, the tie of society and the basis of civilization. -12-
23. Of late, the evil of dowry crept into the institution of marriage and for insufficiency of dowry all sorts of indignities from humiliations to mal- treatments, taunts, teasing, burning of life and forcing the girl to commit suicide are some of the evil phenomenon prevailing in the society with an increasing tendency even in this space age. At times, the pride of the young brides in our society, who start their matrimonial life with sweet dreams of having their own houses with small kids and loving and caring husband and leave their own paternal house with feeling that they were the treasures of the matrimonial family becomes highly pitiable, tragic and pathetic. It is high time that the evil of dowry and a stigma on the present generation attached to the sacred institution of marriage requires a new line of thought and absence of any awaken unconsciousness would lead us far behind the social evil taking away precious lives of brides rarely noticed deserves much preventive and strengthened legislations as well as actions.
24. Earlier times physical cruelty and mental cruelty though made the life of the housewives miserable but a successful suicide as a result of harassment was beyond the laws, there was no adequate provision. It was then that the law makers in India thought it fit of amending Indian Penal Code and incorporating the provisions Section 304-B and Section 498-A so as to extend the protection to the weaker spouses. The intention and object of the Parliament while bringing such amendments to the Indian Penal Code was that of ensuring strict action against the persons, who would humiliate, ill-treat, tease and taunt their daughter-in-laws or sister-in- laws making their life at the matrimonial home miserable. -13-
Cruelty need not always be physical. At times cruelty can be shown by mental harassment as well as by psychological factors. A sentimental person if is continuously abused verbally and by acts of intentional isolation, deliberate confinement, verbal assault, humiliation, intimidation or any other treatment which may diminish the sense of identification, dignity and self-worth would also fall within the ambit of cruelty. At times such form of cruelty or emotional abuse has far more devastating consequence than the physical form of cruelty.
25. The Supreme Court in recent times has come down heavily in matters of crimes against women. In 2010 (13) SCC 689 (Satya Narayan Tiwari & Anr. v. State of Uttar Pradesh), the Supreme Court in paragraph 9 has held that:
"9. Crimes against women are not ordinary crimes committed in a fit of anger or for property. They are social crimes. They disrupt the entire social fabric. Hence, they call for harsh punishment..."
Reiterating the said view another judgment in the same line was passed by the Supreme Court in the case of Sukhdev Singh & Anr. v. State of Punjab [2010 (13) SCC 656].
26. Later on, in the case of Rajbir & Anr. v. State of Haryana [2010 (15) SCC 116], the Supreme Court further directed all the Trial Courts in India to ordinarily add Section 302 of IPC to the charge under Section 304- B of IPC also so that in a given case taking into consideration the heinous and barbaric crimes against women severe punishment can be imposed.
27. A perusal of the statement of Tolaram (PW-9), brother of the deceased, reveals the fact that just after about twenty-twenty five days from the marriage the Appellant had started complaining about poor quality -14- of gifts given to him at the time of marriage and also had complained about not providing the Scooter and other household articles which the witness after a couple of weeks made it available to the Appellant and when he (PW-9) took the scooter to the house of the Appellant, he (the Appellant) had refused to accept the same and in lieu of the Scooter demanded cash money to the value of the Scooter and for which Tolaram (PW-9) somehow arranged for an amount of Rs.25,000/- and gave it to the Appellant. Even after about a month's time, Tolaram (PW-9) again visited his sister (the deceased) and that time also he had taken certain articles which were also refused to be accepted holding it to be of inferior quality. Tolaram (PW-9) had also suggested of the deceased informing them on phone about the ill- treatment which was being meted out to her in the matrimonial home on account of her dark complexion and for her looks and also complaining for insufficient money and gifts given at the time of marriage. The said witness (PW-9) further narrated the humiliation which the deceased had undergone to the extent of not being provided sufficient food and the ill-treatment and torture at the hands of her in-laws. He has further proved that the deceased used to frequently write letters and in her letters she would narrate the trauma which she was undergoing at her matrimonial home.
28. Kundas Das (PW-4), father of the deceased, also in his evidence has deposed that right from the time immediately after a couple of weeks from the marriage the deceased was being subjected to ill-treatment, torture and cruelty and at times even she was assaulted. He had also deposed regarding the complaint being made by the Appellant for insufficient dowry and gifts provided at the time of marriage and would frequently raise demands for providing one or the other things. He further -15- deposed that on 4.3.1995, i.e, the previous day to the date on which the deceased died, the Appellant had phoned him and asked to take his daughter (the deceased) to Nagpur for delivery as there was only ten to fifteen days were left and to which he (PW-4) had spoken to the mother of the Appellant informing that it is the custom and tradition that the delivery has to take place in the matrimonial home and that on the same night he received the information about the death of the deceased.
29. From the evidence of Shrichand (PW-6), another brother of the deceased, also would reveal that the deceased was being subjected to ill- treatment all along from the time of her marriage both on account of insufficient money and gifts being provided at the time of marriage as also for her dark complexion and looks.
30. Coming to the letters which have been written by the deceased to her family members at paternal home, there is no dispute or doubt created by the Appellant so far as the letters not being that of the deceased, nor does the Appellant dispute the handwriting of the deceased. As such, so far as these letters having been sent by the deceased to her family members at the paternal home stands proved and established. Now, if we read the contents of the letters written by the deceased frequently from the time of marriage onwards, it would reveal and disclose the attitude of the Appellant and the family members towards the deceased and would also depict a clear indication of the amount of ill-treatment, humiliation, taunts and various sorts of indignities which the deceased was undergoing at her matrimonial home :
"Exhibit P-18
---ckck vki esjh fpark fcYdqy ugha dhft,xkA -16-
---ckck vkids nkekn rks fcYdqy ugha cnysa gSa os oSls ds oSlsA ns[ksa vc muesa dc ifjorZu vkrk gSA Exhibit P-20
---eSa ;gka cgqr vdsyh iM+ tkrh gwaA vkSj fdlh ls ckr djus ds fy, rjl tkrh gwaA Exhibit P-21
---ckck eq>s rks ;gha jguk gSA nq[kh gksdj ;k lq[kh gksdjA
---D;ksafd vc esjk jksuk de gks x;k gSA eS vHkh T;knk ugha jksrh gwaA Exhibit P-22
---ckck vkids nkekn dk LoHkko vHkh Hkh oSlk gSA mudk LoHkko ugha cnyk gSA vkids nkekn irk ugha fdl feV~Vh ds cus gSa tks fd u rks I;kj ls le> ikrs gSa vkSj ugh yM+kbZ lsA mUgsa rks ,d gh Hkwr lokj gS fd fdlh u fdlh rjg oks eq>s ruko esa j[ksaA rkfd eSa Vsa'ku esa gh jgwaA
---vkids nkekn rks djksM+ksa esa ,d gSa ftudks viuh choh dk FkksM+k lk Hkh nnZ ugha gksrk fd bls D;k gqvk gSA ysfdu vki lc bu ckrksa dh fpark er djk djksA eSa gwa u vkidh csVh lc laHkky ywaxhA mudh <sj lkjh uQjr vkSj mudk FkksM+k lk I;kjA
---gka ,d ckr gS ;s ?kj cgqr tYn gh rckg gksusa okyk gS D;ksafd ?kj esa cgqavksa dks ,d e'khUk dh rjg le>kk tkrk gSA tc pkgk e'khu ls dke ys fy;kA vkSj tc e'khu ls dksbZ dke ugha rks mls iwNk rd ugha tkrk gSA blfy, bl ?kj esa tks Hkh yM+dh vk,xh viusa lkFk cnulhch Hkh ys vk,xhA
---ckck eSa vc cgqr gh de jksrh gwaA vkSj tc jksuk vkrk gS rks Nqi dj jksrh gwaA ---- ysfdu bl ?kj esa ckck dksbZ jks, pkgs ejs fdlh dks dqN Hkh QdZ ugha iM+rk gSA Hkys gh dksbZ jks&jks dj ej tk, ysfdu dksbZ Hkh ikuh dk fxykl ykdj mls ugha fiykrk gSA vkSj u gh gennhZ trkrk gSA
---dsoy bl ?kj esa iSls dk gh I;kj fd;k tkrk gSA ftlusa T;knk iSlk yk;k mldh T;knk rkjhQ gksrh gSA
---viuh rks fdLer gh [kjkc gSA tks bruk ejus ij Hkh fdlh dks ilan ugha gwaA"
31. Further, from the post-mortem report there is also evidence of injuries on the body of the deceased which were ante-mortem and that no plausible, reasonable or acceptable explanation has been given by the Appellant in respect of these injuries though they were of simple nature. Thus, it can be safely inferred that the deceased was also subjected to violence prior to her death.
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32. The cumulative reading of the letters of the deceased and the statements of the prosecution witnesses clearly depicts that there was clear harassment and torture of the deceased for more than one count, like for her dark complexion and her looks as well as non-granting of sufficient money and gifts. In due course of time, such demands became a condition, for smooth continuation of marriage and a failure to meet such demands by the parents of the deceased created disturbances in the life of the deceased. Cruelty need not be always physical; even mental torture or abnormal behaviour may amount to cruelty and harassment.
33. The Legislature by the introduction of Section 113-B of the Evidence Act has tried to strengthen the prosecution hand by permitting a presumption to be raised if certain foundational facts are established of the unfortunate event taken place within seven years of marriage. Coming to the case in hand, it is established that the death of the deceased took place within seven years of her marriage. It is also established that the death was caused otherwise than under natural circumstances and there are sufficient proof of the deceased being subjected to cruelty and harassment.
34. Coming to the provisions of Section 304-B of IPC what is relevant is that there should be perceptible nexus between the death of the deceased and dowry related harassment or cruelty inflicted on her and the cruelty and harassment should also be soon before the death of the deceased. Taking into consideration the deposition of the prosecution witnesses and the letters of the deceased what is culled out is that the demand of money and other articles by the Appellant from the house of the deceased were of the year 1993-94 and the date of incident in the present case is of March, -18- 1995. Therefore, proximity of time from the date of demand of dowry and the date of death is quite wide and that there is no sufficient evidence adduced by the prosecution to show any such cruelty or harassment being inflicted upon the deceased on account of demand of dowry immediately before the death and therefore the Appellant would get a benefit of doubt so far as offence under Section 304-B is concerned.
35. But, the nature of harassment which was inflicted upon the deceased and which started immediately i.e., just after a couple of weeks from her marriage and continued all along and all the letters which have been sent by the deceased to her family members at her paternal home depict a tremendous amount of stress, anxiety, trauma and indignities which she was being subjected. Ultimately when she lost all of her patience and the strength to sustain any further indignities she was left with no other option but to end her life by committing suicide. That it was the Appellant who had created the atmosphere in the life of the deceased right from the time of her marriage, which can safely be said to be an act which has been done with a clear intention of creating a situation in the life of the deceased. He himself and by engagement of other family members in the process made the life of the deceased at her matrimonial home a place like hell and which in the initial couple of years she tried to bravely face but the continuous harassment, ill-treatment, torture, taunts and other indignities being made upon the deceased on daily basis forced her to take a step of ending her life and such act can be safely attributable to the Appellant. It was for these reasons that the prosecution at the time of filing of charge-sheet had framed the charges under Section 302/34 of IPC alternatively 304-B of IPC and also alternatively 306 of IPC along with -19- offence under Section 498-A of IPC. The conduct of the Appellant clearly indicates that it was the conduct which drove the deceased to take such an extreme unfortunate step.
36. Even if the Appellant gets an advantage of the doubt for the offence under Section 304-B of IPC on account of failure on the part of the prosecution to establish the proximity of time between the demand of dowry and the date of death, but from the sufficient proof and which has also been established by the prosecution during the course of the evidence by which it could clearly held that it was the conduct of the Appellant right from the initial days of her marriage, i.e., after about twenty-twenty five days from the date of marriage till the date of death of the deceased, she was undergoing sever trauma, ill-treatment, harassment and indignities and which crossed a stage when she could not sustain the same anymore and drove her to take the decision to terminate her life and the unfortunate event took place on 5.3.1995.
37. The fact which is also to be borne in mind is the fact of the deceased was in an advanced stage of pregnancy. She was about to deliver the child in about two weeks' time as is clear from the evidence of Kundas Das (PW-4) and Dr. Ramjanm Prasad Verma (PW-2). No pregnant girl with a fully developed healthy child in her womb would even think of ending her life and that of the child after carrying it for nine months. This itself is sufficient to infer that her life at her matrimonial home was a hell and when things went all out of her control she was forced to end her life. It was the Appellant who created such an atmosphere and thereby intentionally abetted the deceased to take the extreme step. One must not forget that the Appellant in the process of subjecting the deceased to harassment -20- forcing her to end her life has not only got his wife killed but at the same time has also got killed a fully developed baby in the womb of the mother about to be delivered just in a couple of weeks time. As a result, literally two lives have been lost because of the conduct, act and attitude of the Appellant.
38. The cumulative reading of the entire evidence on record would clearly lead us to conclude that the Appellant is not guilty for the offence under Section 304-B of IPC but is certainly guilty of the offence of abetment of suicide and cruelty invoking the provisions of Section 113-A of the Evidence Act which strengthens the prosecution case on presumption and as such the Appellant is liable to be convicted for the offence under Section 498-A of IPC and also under Section 306 of IPC.
39. As regards the contention of learned Senior Counsel for the Appellant that the Appellant cannot be convicted for the offence under Section 306 of IPC as there is an implied acquittal given by the Court and also that Section 306 of IPC cannot be construed as a lower offence as compared to Section 304-B IPC, the same is not be acceptable for the reason that the Supreme Court as early as in the year 2003 in the case of K. Prema S. Rao and Anr. Vs. Yadla Srinivasa Rao and Ors., reported in 2003 (1) SCC 217, had considering the total facts and circumstances therein held that the prosecution having failed to establish that soon before the death the deceased was subjected to cruelty and harassment found that the charge under Section 304-B of IPC was not established and acquitted the accused therein but found that there was sufficient material brought by the prosecution in the course of evidence by which it is established that the offence under Section 306 of IPC has been made and -21- in spite of the fact that the charge under Section 306 of IPC was not framed against the accused therein yet the accused therein was convicted for the same. A similar view has been taken by the Supreme Court in the case of Rajeev Kumar Vs. State of Haryana, reported in 2013 (16) SCC 640, wherein also the charge under Section 306 of IPC was not framed against the accused yet the accused was convicted for the said offence after acquitting the accused for the offence under Section 304-B of IPC.
40. The above referred two judgments also stand fortified from the decision of the Supreme Court in the case of Narwinder Singh v. State of Punjab [2011 (2) SCC 47], whereby the Supreme Court turning down the argument of the Appellant that the Appellant could not have been convicted under Section 306 of IPC in absence of a charge being framed in the aforesaid Section, held that even if the charge has not been framed it was observed that since there was sufficient material to indicate that the deceased committed suicide due to the harassment meted out to her by the Appellant attracts offence of abetment of suicide as it was his conduct which drove the wife to commit suicide. In the process it found the Appellant guilty for the offence under Section 306 of IPC and had also converted the conviction under Section 304-B of IPC to one under Section 306 of IPC.
41. Applying the same analogy in the instant case also, the Appellant would be entitled for the benefit of doubt so far as the offence under Section 304-B of IPC is concerned. But, there is sufficient material to reach to the conclusion that the Appellant is guilty of having committed the offence under Section 306 of IPC. For the foregoing reasons, in absence of sufficient material for constituting an offence under Section 304-B of IPC -22- and the benefit of doubt going in favour of the Appellant, the conviction of the Appellant for the said offence is set aside and he is acquitted from the said charge but stands convicted for the offence under Section 306 of IPC.
42. Taking into consideration the total facts and circumstances of the case more particularly the manner in which the Appellant subjected the deceased to humiliations, taunts and other indignities coupled with the fact that she was also pregnant nine months and carrying a fully developed baby in her womb yet she felt that there was no other way left for her except for committing suicide, the Appellant is sentenced to undergo rigorous imprisonment for seven years.
43. The conviction of the Appellant under Section 498-A of IPC stands affirmed. The conviction of the Appellant under Section 304-B of IPC is converted to one under Section 306 of IPC and he is sentenced to undergo rigorous imprisonment for seven years.
44. With the aforesaid modification of the conviction and sentence, the appeal is dismissed.
Sd/- Sd/-
(Navin Sinha) (P. Sam Koshy)
CHIEF JUSTICE JUDGE
sharad*