Smt. Maya Devi & Another vs State Of U.P.
2016 Latest Caselaw 2418 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Reserved
 

 
Court No. - 25
 

 
Case :- CRIMINAL APPEAL No. - 270 of 1995
 

 
Appellant :- Smt. Maya Devi & Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Subodh Kr. Shukla,Bhola Singh Patel,D.K. Singh Somvanshi, Praveen Kumar Verma
 
Counsel for Respondent :- Govt. Advocate
 

 
AND
 

 
Case :- CRIMINAL APPEAL No. - 320 of 1995
 

 
Appellant :- Rakesh
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Subodh K. Shukla, D.K. Singh Somvanshi, Parveen Kumar Verma, V. Mohan
 
Counsel for Respondent :- Govt Advocate
 

 
Hon'ble Aditya Nath Mittal,J.

1. Both these appeals arise out from the same judgement and order dated 19.05.1995 and they are being taken up together.

2. Both these appeals have been filed challenging the judgement and order dated 19.05.1995 passed by the 5th Additional Sessions Judge, Sitapur in Sessions Trial No.145 of 1992 whereby the appellants have been convicted for the offence punishable under section 498-A IPC and 304-B IPC.

3. The brief facts of the case are that the marriage of complainant's daughter namely Smt. Jai Shree was solemnized with the appellant Rakesh on 12.05.1986 in which Rs.9000/- along with articles was given to the appellants but the families were not satisfied by that amount and they used to torture the deceased and also caused 'maar-peet' with her and compelled to bring more money and for happiness of her daughter, the complainant continued to give money. On 15.04.1990, the appellants compelled the deceased to bring Rs.1000/- more but the complainant could manage Rs.800/-. On 28.04.1990 at about 4.00 pm Dinesh, who was resident of her village informed him that her daughter has committed suicide upon which she along with her husband and daughter Rekha went to the house of the appellants and when the door was opened, she saw that her daughter was hanging and she was having a paper (suicide note) in which it was written that now she cannot bear for any more. That paper was taken into possession by the investigating officer and the dead body was sent for post-mortem examination. Since the complainant was sad, therefore, she could not lodge the first information report in time. She believes that she has been killed for dowry. The application was given on 08.05.1990 to the Superintendent of Police and by his order dated 12.06.1990, the first information report was lodged at Case Crime No.136 of 1990 under sections 498-A, 304-B IPC.

4. After investigation, the charge-sheet was filed for the offences punishable under section 498-A and 304-B IPC. The accused persons were charged for the said offences. They denied the charges and claimed trial.

5. During the trial, Smt. Shiv Pyari (PW-1) has supported the version of the first information report and stated that her daughter was married with Rakesh in which there was no mention of dowry. After the marriage, her daughter continued to go and come but she made complaint that she was beaten by the accused persons. About 12 days ago from the incident, her daughter came to her house and asked for Rs.1000/- upon which she gave Rs.800/- to her. After 12 days, Dinesh told him that her daughter has committed suicide upon which she went to the home of her daughter and saw that the appellant was present there along with other villagers and found that her daughter was hanging from a iron gurder. She was having one letter in his hand, in which it was written that she is committing suicide. The first information report has been proved as Ext. Ka.1.

6. Km. Rekha as been examined as PW-2, who is the sister of the deceased has also supported the statement of the complainant and has stated that her sister used to tell that appellant Rakesh (husband), Ganga Ram (father in law) and Maya Devi (mother in law) used to beat her and ask for more money. Her father had given Rs.1000/- and just twelve days before, further gave Rs.800/- to her. Upon the information of death, she also went to the spot where appellant and villagers were present. The letter, which was recovered from the spot has been proved as Ext. Ka 2, stating that it is written by deceased.

7. Dinesh Kumar Jaiswal has been examined as PW-3, who has stated that he is doing the business of ice and when he went to Akbarpur for purchase of ice, then he came to know that one girl has committed suicide. Upon enquiry, it was revealed that Jai Shree has committed suicide, regarding which he had given the information to the complainant.

8. Dr. V.K. Verma has been examined as PW-4, who has proved the post-mortem report of the deceased and has stated that there was a ligature mark all around the neck. The post-mortem report has been proved as Ext. Ka-3.

9. Sub-Inspector Rajveer Singh has been examined as PW-5, who has stated on 28.04.1990, he was posted as Chowki Incharge and for enquiry he had gone to the house of Ganga Prasad. The door was closed. It was broken and he found that the dead body of Jai Shree was hanging by the roof and near the dead body, one letter was recovered, which was identified by her sister. That letter was taken into custody. Inquest report has been proved as Ext. Ka-4. Photo dead body; Challan; Report R.I; Report C.M.O.; and sample of seal have been proved as Ext. Ka-5 to Ka.-9 and then the deady body was sent for post-mortem.

10. Head Constable Ram Shyam Mishra has been examined as PW-6, who has stated that he was posted as Head Moharrir on 28.04.1990 and at G.D. No.26, Ganga Prasad Jaiswal has given a written information that on 26.04.1990, he had gone to a marriage party and his son Rakesh Kumar and his wife were alone in the house. On the night of 27/28.04.1990 his daughter in law did not open the door. Therefore, the matter was reported to the police. This report has been proved as Ext. Ka.11.

11. Station House Officer Mohd. Akhtar has been examined as PW-7 who has stated that he has handed over the investigation of the case and prior to it, it was investigated by the C.O. S. K. Chatarjee. On 15.03.1991, he had recorded the statements of the witnesses and verified the side plan prepared by previous I.O., which has been proved as Ext. Ka.12. This witness has further stated the dates on which, he has taken the statements of other witnesses. The charge-sheet has been proved as Ext. Ka-13 and Ka-14.

12. Sri Prakash Chandra Pathak, Handwriting and Finger Print Expert has been examined as PW-8, who has stated that on 12.07.1990, the disputed documents Q-1 and Q-2 were sent for examination. Admitted handwriting of the deceased was marked as A-1 to A-21 and after scientific examination, he came to the conclusion that the person who has written the admitted specimen A-1 to A-21 has also written the disputed documents Q-1 and Q-2. The report has been proved as Ext. Ka-15 and Ka-16. Photographs have been proved as material Ext. 2 to 14. The reasons for the report has been proved as Ext. Ka-16.

13. Sub-Inspector Rajveer Singh has been recalled and re-examined and he has proved the search memo as Ext. Ka-19.

14. Atul Shukla has been examined as CW-1 who has stated that on 28.04.1990, Ganga Prasad got scribed the report, which was read over to Ganga Prasad who has signed it and it has been marked as Ext. Ka-20.

15. Atique Ahmad has been examined as CW-2, who has stated that he knows the accused persons who are his neighbours. The wife of Rakesh was very modern and fancier of things and her parental home was at a distance of three kilometres where she used to visit alone. She first wanted to commit suicide at her parental home but her mother said that whatever you want to do, you do at your matrimonial home. The deceased told this thing to him.

16. Shri Raees Ahmad has been examined as CW-3, who has stated that the marriage of Rakesh was solemnized six - seven years ago and the wife of Rakesh was very adamant. She used to visit her parental home all alone. The door was broken in his presence and he saw that her dead body was lying on the cot.

17. After prosecution evidence, the statements of accused persons were recorded under section 313 Cr.P.C. in which they had denied the evidence.

18. In defence, Om Prakash Singh has been examined as DW-1, who has stated that his marriage was to be solemnized on 26.04.1990 in which Ganga Prasad and Maya Devi who are his 'Bua' and 'Foofa' came on 25.04.1990 and stayed up to 28.04.1990. On 28.04.1990. They received the information that their daughter in law had committed suicide upon which they returned to their home.

19. After appreciating the evidence on record, learned court below came to the conclusion that the appellants are guilty for the offence punishable under section 498-A, and 304-B IPC and accordingly convicted them. Out of the aforesaid appellant, the appellant no.1 of Appeal no. 270 of 1995, namely-Smt. Maya Devi had died during the pendency of this appeal. Hence her appeal stands abated.

20. Learned counsel for the appellant has submitted that the incident took place on 28.04.1990 while the first information report was lodged on 12.06.1990. Therefore, there is delay in lodging the first information report by one month and twelve days. It has also been submitted that the appellant Ganga Prasad had himself informed the appellant on 28.04.1990 about the incident and at the time of inquest, the father of the deceased was also present but no such suspicion as to dowry death was raised. In the suicide note, there is no mention of any torture or cruelty but it is regarding Rs.800/-. It has also been submitted that the demand of Rs.1000/- was not with regard to dowry because the complainant has admitted that the said amount of Rs.800/- was given for business purposes. It has also been submitted that the deceased could not gave birth to any child, therefore, she was sad and committed suicide. It has also been submitted that the door was closed from inside and there was no injury found on the body of the deceased except the ligature mark. Even the ornaments which she used to wear were found on the body of the deceased and they were not taken away by the accused persons. It has also been submitted that the prosecution has failed to prove the demand of dowry as well as causing cruelty or torture to the deceased soon before her death. It has also been submitted that in the first information report itself, no such allegation of dowry has been made.

21. Learned AGA has defended the impugned judgement and has submitted that the demand of dowry has been established and the suicide note itself shown the abetment to commit suicide.

22. It is not disputed that the deceased has died within seven years of marriage under unnatural circumstances. In the case of Satvir Singh and others Vs. State of Punjab and another reported in (2001) 8 SCC 633 the Hon'ble Apex Court has held as under:-

"The essential components of Section 304-B are: (i) Death of a woman occurring otherwise than under normal circumstance, within 7 years of marriage, (ii) Soon before her death she should have been subjected to cruetly and harassment in connection with any demand for dowry. When the above ingredients are fulfilled, the husband or his relative, who subjected her to such cruelty or harassment, can be presumed to be guilty of offence Under Section 304-B. To be within the province of the first ingredient the provision stipulates that "where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstance". It may appear that the former limb which is described by the words "death caused by burns or bodily injury" is a redundancy because such death would also fall within the wider province of "death caused otherwise than under normal circumstances". The former limb was inserted for highlighting that by no means death caused by burns or bodily injury should be treated as falling outside the ambit of the offence".

The Hon'ble Apex Court in the case of Hira Lal and others vs. State (Govt.NCT) Delhi reported in (2003) 8 SCC 80 has held as under:-

"A conjoint reading of Section 113-B of the Evidence Act and Section 304-B Indian Penal Code shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of "death occurring otherwise than in normal circumstances". The expression "soon before" is very relevant where Section 113-B of the Evidence Act and Section 304-B Indian Penal Code are pressed into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by the prosecution".

The learned Judge, while proceeding further and interpreting the expression "soon before", opined thus:-

"The determination of the period which can come within the term "soon before" is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression "soon before" would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence".

It is relevant to refer here the provision of Section 113-A and 113-B of the Evidence Act, which read as under:-

"113-A. Presumption as to abetment of suicide by a married woman,- When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.

Section 113-B, which provides for presumption as to dowry death, was inserted with a view to fight against the plague of dowry death. The said provision is as follows:-

113-B Presumption as to dowry death.

When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.

Explanation - For the purpose of this section, "dowry death" shall have the same meaning as in Section 304-B of the Indian Penal Code".

23. In the case of Mustafa Shahadal Shaikh vs. State of Maharashtra reported at (2013) 1 SCC (Cri) 664, it has been held as under:

In order to convict an accused for offence punishable under Section 304B of IPC, the following essentials must be satisfied:

(i) the death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances;

(ii) such death must have occurred within seven years of her marriage;

(iii) soon before her death, the woman must have been subjected to cruelty or harassment by her husband or any relatives of her husband;

(iv) such cruelty or harassment must be for, or in connection with, demand for dowry.

When the above ingredients are established by reliable and acceptable evidence, such death shall be called dowry death and such husband or his relatives shall be deemed to have caused her death. If the above-mentioned ingredients attract in view of the special provision, the court shall presume and it shall record such fact as proved unless and until it is disproved by the accused. However, it is open to the accused to adduce such evidence for disproving such compulsory presumption as the burden is unmistakably on him to do so and he can discharge such burden by getting an answer through cross-examination of prosecution witnesses or by adducing evidence on the defence side.

24. It has also also been held by Hon'ble the Apex Court in Mustafa Shahadal Shaikh' case (supra) that :

to attract the provisions of Section 304B, one of the main ingredients of the offence which is required to be established is that "soon before her death" she was subjected to cruelty or harassment "for, or in connection with the demand for dowry". The expression "soon before her death" used in Section 304B IPC and Section 113B of the Evidence Act is present with the idea of proximity test. In fact, learned counsel appearing for the appellant submitted that there is no proximity for the alleged demand of dowry and harassment. With regard to the said claim, we shall advert to the same while considering the evidence led in by the prosecution. Though the language used "soon before her death", no definite period has been enacted and the expression "soon before her death" has not been defined in both the enactments. Accordingly, the determination of the period which can come within the term "soon before her death" is to be determined by the courts, depending upon the facts and circumstances of each case. However, the said expression would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. In other words, there must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the concerned death. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence. These principles have been reiterated in Kaliyaperumal vs. State of Tamil Nadu, AIR 2003 SC 3828 and Yashoda vs. State of Madhya Pradesh, (2004) 3 SCC 98.

25. In this case, the suicide note has been recovered from the spot at the time of recovery of the dead body. That suicide note reads as under:

"vk[kjh gekjs ekW cki dk I;kj lc yksx gekjs ekW cki lcj fnYkkuk jksus er nsuk esjk lkjk lkeku js[kk dks ns fn;k tk; vEek vius 800 :i;s lcj djuk eS tk jgh gwW rqe yksx lcj djuk A viuk lkeku ys ysuk A eS ftruk igus gWw lc js[kk dks fnyk nsuk A

vEek cIik rqe jksuk ugh"

26. The aforesaid letter has been scientifically examined by the handwriting and finger print expert, who has given his opinion that this letter has been written by the same person who has written the contents at A-1 to A-21.

27. Hon'ble the Apex Court in the case of Netai Dutta Vs. State of W.B. Reported at (2005) 2 SCC 659, has held as under :

"4. One Pranab Kumar Nag was an employee of M/s M.L.Dalmiya & Co. Ltd. During the course of his employment, he had been posted at various work sites of the company and on 11.9.1999 he was transferred to the work site of the company's stores located at 160, B.L. Saha Road, Kolkata. It seems that pursuant to the transfer order, Pranab Kumar Nag did not join duty and after a period of about two years he sent in a letter of resignation written in his own hand wherein he expressed his grievance of stagnancy of salary and also alleged that he was a victim of unfortunate circumstances. The company accepted his resignation with immediate effect. On 16.2.2001, a dead body was found at the railway tracks near Ballygunge railway station and it was revealed that it was the body of Pranab Kumar Nag. His brother went to the office where Pranab Kumar Nag had worked and made enquiries. The dead body of Pranab Kumar Nag was released to his brother after the post-mortem examination on 19.2.2001. After a period of two months, a complaint was lodged before the police post on the basis of a suicide note allegedly recovered from the dead body of Pranab Kumar Nag. Based on the complaint, a case was registered against the appellant and some others. A translated copy of the suicide note is produced before us by the appellant. We have carefully read the alleged suicide note.The substance of this suicide note is that deceased Pranab Kumar Nag alleged that appellant Netai Dutta and one Paramesh Chatterjee engaged him in several wrong-doings (he has shown as a type of torture) and at the end of the letter, a reference is also made to Paramesh Chatterjee and Netai Dutta alleging that he reported certain incidents to them. A reading of the letter would show that deceased Pranab Kumar Nag was not very much satisfied with the working conditions in the office. In the letter he has stated that he had to be at the work place sometimes throughout the day and night and he had to remain in the company of some drivers who had been sometimes in drunken condition at about one o' clock or two o' clock in the night. It is also alleged that the drivers who had been present at the work place had been having non-vegetarian food. He also complained that he had to work even on Sundays. He further stated that one day he could leave the work place at 8 o' clock in the evening and all the restaurants were closed and that he reported the matter to the present appellant.

5. There is absolutely no averment in the alleged suicide note that the present appellant had caused any harm to him or was in any way responsible for delay in paying salary to deceased Pranab Kumar Nag. It seems that the deceased was very much dissatisfied with the working conditions at the work place. But it may also be noticed that the deceased after his transfer in 1999 had never joined the office at 160, B.L. Saha Road, Kolkata and had absented himself for a period of two years and that the suicide took place on 16.2.2001. It cannot be said that the present appellant had in any way instigated the deceased to commit suicide or he was responsible for the suicide of Pranab Kumar Nag. An offence under Section 306 IPC would stand only if there is an abetment for the commission of the crime. The parameters of the "abetment" have been stated in Section 107 of the Indian Penal Code. Section 107 says that a person abets the doing of a thing, who instigates any person to do that thing; or engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, or the person should have intentionally aided any act or illegal omission. The explanation to Section 107 says that any willful misrepresentation or wilful concealment of a material fact which he is bound to disclose, may also come within the contours of "abetment".

6. In the suicide note, except referring to the name of the appellant at two places, there is no reference of any act or incidence whereby the appellant herein is alleged to have committed any willful act or omission or intentionally aided or instigated the deceased Pranab Kumar Nag in committing the act of suicide. There is no case that the appellant has played any part or any role in any conspiracy, which ultimately instigated or resulted in the commission of suicide by deceased Pranab Kumar Nag.

7. Apart from the suicide note, there is no allegation made by the complainant that the appellant herein in any way was harassing his brother, Pranab Kumar Nag. The case registered against the

appellant is without any factual foundation. The contents of the alleged suicide note do not in any way make out the offence against the appellant. The prosecution initiated against the appellant would only result in sheer harassment to the appellant without any fruitful result. In our opinion, the learned Single Judge seriously erred in holding that the First Information Report against the appellant disclosed the elements of a cognizable offence. There was absolutely no ground to proceed against the appellant herein. We find that this is a fit case where the extraordinary power under Section 482 of the Code of Criminal Procedure is to be invoked. We quash the criminal proceedings initiated against the appellant and accordingly allow the appeal.

28. In Madan Mohan Singh Vs. State of Gujarat and another; (2010) 8 SCC 628, Hon'ble the Apex Court has held as under:

6. The further complaint in that so-called suicide note appears to be that the driver was not given a fixed vehicle though all the drivers were given fixed vehicles to drive. There is also a complaint against one Raghunathan suggesting that he misled the DGM and had given him a very bad vehicle to drive. By way of example, it was pointed out that the keys of the vehicle were taken in the absence of Incharge, M.K. Sovangya without giving any reasons verbally. Then he was not given any charge of the vehicle and running log book. Thirdly, he was sent the transfer order by post. The attendance of the office staff was not maintained and he was transferred and the vehicle was given to a regular labour. There is also a complaint about the salary of 15 days which was deducted by Madan Mohan Singh. A fair inquiry was sought for by the said driver. It was suggested that his retirement date was 25.12.2012 and salary should be recovered from Madan Mohan Singh as he had harassed him without giving any concrete reason.

10. We are convinced that there is absolutely nothing in this suicide note or the FIR which would even distantly be viewed as an offence much less under Section 306, IPC. We could not find anything in the FIR or in the so-called suicide note which could be suggested as abetment to commit suicide. In such matters there must be an allegation that the accused had instigated the deceased to commit suicide or secondly, had engaged with some other person in a conspiracy and lastly, that the accused had in any way aided any act or illegal omission to bring about the suicide.

11. In spite of our best efforts and microscopic examination of the suicide note and the FIR, all that we find is that the suicide note is a rhetoric document in the nature of a departmental complaint. It also suggests some mental imbalance on the part of the deceased which he himself describes as depression. In the so-called suicide note, it cannot be said that the accused ever intended that the driver under him should commit suicide or should end his life and did anything in that behalf. Even if it is accepted that the accused changed the duty of the driver or that the accused asked him not to take the keys of the car and to keep the keys of the car in the office itself, it does not mean that the accused intended or knew that the driver should commit suicide because of this.

12. In order to bring out an offence under Section 306, IPC specific abetment as contemplated by Section 107, IPC on the part of the accused with an intention to bring out the suicide of the concerned person as a result of that abetment is required. The intention of the accused to aid or to instigate or to abet the deceased to commit suicide is a must for this particular offence under Section 306, IPC. We are of the clear opinion that there is no question of there being any material for offence under Section 306, IPC either in the FIR or in the so-called suicide note.

13. It is absurd to even think that a superior officer like the appellant would intend to bring about suicide of his driver and, therefore, abet the offence. In fact, there is no nexus between the so called suicide (if at all it is one for which also there is no material on record) and any of the alleged acts on the part of the appellant. There is no proximity either. In the prosecution under Section 306, IPC, much more material is required. The Courts have to be extremely careful as the main person is not available for cross-examination by the appellant-accused. Unless, therefore, there is specific allegation and material of definite nature (not imaginary or inferential one), it would be hazardous to ask the appellant-accused to face the trial. A criminal trial is not exactly a pleasant experience. The person like the appellant in the present case who is serving in a responsible post would certainly suffer great prejudice, were he to face prosecution on absurd allegations of irrelevant nature. In the similar circumstances, as reported in Netai Dutta Vs. State of W.B.[2005 (2) SCC 659], this Court had quashed the proceedings initiated against the accused.

14. As regards the suicide note, which is a document of about 15 pages, all that we can say is that it is an anguish expressed by the driver who felt that his boss (the accused) had wronged him. The suicide note and the FIR do not impress us at all. They cannot be depicted as expressing anything intentional on the part of the accused that the deceased might commit suicide. If the prosecutions are allowed to continue on such basis, it will be difficult for every superior officer even to work.

15. It was tried to be contended by the learned counsel appearing on behalf of the complainant that at this stage, we should not go into the merits of the FIR or the said suicide note. It is trite law now that where there is some material alleged in the FIR, then such FIR and the ensuing proceedings should not be quashed under Section 482 Cr.P.C. It is for this reason that we very closely examined the FIR to see whether it amounts to a proper complaint for the offence under Sections 306 and 294(b) IPC.

16. Insofar as Section 294(b) IPC is concerned, we could not find a single word in the FIR or even in the so-called suicide note. Insofar as Section 306 IPC is concerned, even at the cost of repetition, we may say that merely because a person had a grudge against his superior officer and committed suicide on account of that grudge, even honestly feeling that he was wronged, it would still not be a proper allegation for basing the charge under Section 306 IPC. It will still fall short of a proper allegation. It would have to be objectively seen whether the allegations made could reasonably be viewed as proper allegations against the appellant-accused to the effect that he had intended or engineered the suicide of the concerned person by his acts, words etc. When we put the present FIR on this test, it falls short.

18. For all these reasons, we are of the clear opinion that the High Court erred in not quashing the proceedings. Allowing this appeal,we set aside the order of the High Court and allowing the petition under Section 482 Cr.P.C. filed by the appellant-accused, the questioned proceedings are quashed."

29. The main question for consideration is whether there was any demand of dowry from the deceased or from her parents and she was subjected to cruelty and torture or not in connection with demand of dowry.

30. It has also to be considered that whether a sum of Rs.800/- was given as dowry or whether it was given as a loan for business. It is not disputed that the dead body of the deceased was found hanging in the room which was bolted from the inside and it was opened upon the information of Ganga Prasad, the appellant. In this connection, it has to be seen whether there was any abetment to commit suicide or not?

31. From the perusal of the suicide note, it appears that a sum of Rs.800/- was the main cause for committing suicide. The victim also intended that her all ornaments etc. should be given to her younger sister Rekha. It is not disputed that when the dead body was recovered after breaking the door of the room, the said jewellery was intact. The complainant Smt. Shiv Pyari has admitted in her statement that a sum of Rs.800/- has been returned to her along with interest and the total amount which she had taken back is Rs.1000/-. She has further stated in her cross-examination that she do not remember that Ganga Ram had taken the sum of Rs.800/- as an amount for business of food grains but she has specifically denied that the said amount of Rs.800/- was taken as dowry. It appears that there was some dispute regarding the return of said amount of Rs.800/- and that is the reason that the deceased in her suicide note has stated for her parents to have patience for it. Smt. Shiv Pyari is the best witness regarding payment of alleged Rs.800/- but she has denied in her statement that it was a dowry, then certainly it appears that the said amount of Rs.800/- was given as a loan for the business of food grains. Had it not been so, there is no occasion to refund the said amount of Rs.800/- along with interest of Rs.200/- and the receipt of Rs.1000/- along with interest has been admitted by Shiv Pyari (PW-1).

32. Another factor, which may be considered is, if any more amount was given as a dowry, then certainly the complainant could have demanded the refund of that amount also. In the first information report as well as in the examination in chief, Shiv Pyari (PW-1) has not stated that any household item or any other item was also given as dowry. Therefore, the conclusion is that the said amount of Rs.800/- was as a business loan, which has been refunded by the appellant Ganga Ram along with interest.

33. In the evidence, it has also come that the appellant Ganga Ram was not present in the house at the time of incident. Shiv Pyari (PW-1) has stated in his statement that when upon receiving the information of the death of her daughter, she went to the house of Ganga Ram then Ganga Ram met her outside the house.

34. Dinesh Kumar Jaiswal (PW-3) who is the prosecution witness has also admitted in his statement that he is "Khasam Khas" (very close) to the complainant and he has himself informed the complainant about the death of victim. He has admitted in his statement that Ganga Ram had came back from somewhere. Upon interrogation, they told that they were away since two days regarding the marriage. He has further admitted that the appellant Rakesh was also not present at the time of incident and he had also gone outside one day before the incident.

35. Atul Shukla (CW-1) has also admitted in his statement that at the time of incident, none of these appellants were present in the house.

36. Om Prakash (DW-1) has also stated in his statement that Ganga Ram is his 'Foofa' and his marriage was solemnized on 26.04.1990 and for attending his marriage, his 'Foofa' had came his house on 25.04.1990. He has further stated that since his father had expired, therefore, the responsibility of his marriage was upon Ganga Ram. He has further stated that they remained there up to 28.04.1990 and on 28.04.1990, Babu Ram Tamoli came with the information that the deceased had committed suicide, upon which his 'Foofa' returned to his home. He has also proved the invitation card of his marriage.

This witness has been cross examined at length but nothing adverse has come in his statement so as to disbelieve that the appellant Ganga Ram had not gone to his home on 25.04.1990 in connection with his marriage. In these circumstances, the statement of Om Prakash (DW-1) further finds support from the statement of Atul Shukla (CW-1); Dinesh Kumar Jaiswal (PW-3); as well as Shiv Pyari (PW-1).

37. For convicting any person for the offence punishable under section 304-B IPC, apart from other things, it is necessary to prove that 'soon before her death' the woman was subjected to cruelty or harassment by her husband or any relative or her husband. It is further required to be proved that such cruelty or harassment must be for or in connection with demand of dowry.

38. It is settled position of law that words 'soon before her death' have no definite period but there must be existence of proximate and live link between the effect of cruelty based on dowry demand and the death concerned.

39. From the perusal of the statement of the complainant Shiv Pyari (PW-1), it appears that simple allegations of brawl have been levelled against the appellants but it has not been specifically stated that such brawl was in connection with the demand of dowry. As has been established earlier, it is clear that the payment of Rs.800/- was with regard to the business transactions and it was not in connection with dowry.

40. One more important factor in this matter is that when Ganga Ram received information of death of his daughter-in-law, he himself has informed the police authorities about the incident and that information has been proved as Ext. Ka-20. In that information also, the appellant Ganga Ram has mentioned that he had gone on 26.04.1990 regarding one marriage party and his son Rakesh Kumar and his wife were all alone in the home. It was also mentioned that in the night of 27/28, the daughter-in-law has not opened the door of the room. This immediate information to the police established the bonafide of the appellant Ganga Ram. There is no specific evidence that Ganga Ram ever demanded or was paid any dowry and they caused cruelty to the deceased for or in connection with the dowry. Therefore, in absence of any specific allegation and the evidence of fact that Ganga Ram was not present on the spot at the time of committing suicide, the conviction of Ganga Ram cannot be sustained.

41. In the statement of Dinesh Kumar (PW-3) it has come that the appellant Rakesh was also not present on the spot but in view of the information given by appellant Ganga Ram Ext. Ka-20, it is clear that when he had gone on 26.04.1990 for attending the marriage, Rakesh and his wife remained in the house. Rakesh in his statement under section 313 Cr.P.C. has stated that his parents had gone to Nanihal with regard to the marriage and he had gone to Kanpur after loading the goods. The appellant Rakesh is the driver. The appellants have examined Om Prakash (DW-1), who has proved the presence of Ganga Ram at his home but this witness is absolutely silent about Rakesh. Had Rakesh gone to Kanpur after loading the goods, he must have adduced some evidence9 of leaving the home prior to incident but any evidence in this regard has not been adduced by the appellant Rakesh.

42. In normal circumstance, any person will not commit suicide unless there exists some circumstances to create mental tension for him or with regard to abetment. As far as demand of dowry and torture for not fulfilling the demand of dowry is concerned, there is no reliable evidence against the appellant Rakesh also. There is no allegation against the appellant Rakesh that he had also demanded dowry or that he had caused cruelty or torture to the deceased for non-fulfilment of demand of dowry. In this case, the appellants were also charged for the offence punishable under section 306 IPC as well as section 3/4 Dowry Prohibition Act.

43. As discussed above, the main ingredients of the offence punishable under section 498-A and 304-B IPC as well as Section 3/4 Dowry Prohibition Act are not proved beyond reasonable doubt because it has not been proved that 'soon before her death' the deceased was subjected to cruelty in connection with demand of dowry. It is not disputed that the death of the deceased has taken place within seven years of her marriage and the death is otherwise than under normal circumstances.

44. As far as appellant Ganga Ram is concerned, there appears to be no abetment on their part but by the information furnished by Ganga Ram-appellant as Ext. Ka-20, his son Rakesh and daughter-in-law were all alone in the home. There appears to be no reason to believe the information as Ext. Ka-20 and in view of this information, the statement of appellant Rakesh under section 313 Cr.P.C. do not inspire confidence that he was also not present on the date of incident as he has stated in his statement under section 131 Cr.P.C that he had gone to Kanpur but any evidence in this regard has not been adduced by Rakesh - appellant. It is established that the deceased died due to hanging, although there was no other injury of her body. It is also established that her all ornaments were found intact on her body. It is also established that the deceased has shown her willingness to deliver all the goods and ornaments to her younger sister Rekha and which has also been delivered to her. Therefore, from any corner of evidence, offence punishable under section 498-A IPC, 304-B IPC and section 3/4 Dowry Prohibition Act are not proved against any of the appellant but the offence punishable under section 306 IPC is proved against the appellant Rakesh because at the time of incident, he and his deceased wife were all alone in the house. If his wife had bolted the room from inside, there must be some hot talks or circumstance due to which she had bolted the door of the room. In these circumstances, it was the duty of the appellant Rakesh either to have broken the door or to have call the neighbours or to have call the police.

45. Explanation-1 of Section 107 IPC provides that a person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.

In view of the above Explanation-1, the main ingredients of abetment to commit suicide, as provided under section 107 IPC are proved against the appellant Rakesh. It was the appellant Rakesh who might have instigated the deceased to take such a step and it was the duty of Rakesh to have explained the circumstances under which the deceased had committed suicide. In this case, the presumption under section 113-A of the Indian Evidence Act is also attracted because there is evidence on record that the victim was beaten and had subjected to cruelty, which is established from the evidence on record as well as from the circumstances of the case.

46. In the present case, the charge for the offence punishable under section 306 IPC has also been framed against the appellant but the learned Trial Court has not discussed this aspect for the simple reason that trial court was of the view that the offence punishable under section 498-A and 304-B IPC were made out. The appellant Rakesh who was all alone along with his wife on the date of incident had omitted and has not made any attempt to save his wife.

47. For the reasons aforesaid, the appeal of appellant Ganga Ram deserves to be allowed and his conviction deserves to be set aside. The appeal of Rakesh is partly allowed to the extent that conviction for the offence punishable under section 498-A and 304-B IPC is set aside but he is found guilty for the offence punishable under section 306 IPC and liable to be punished accordingly.

48. During the course of arguments, learned counsel for the appellant has submitted that the appellant Rakesh has remained in jail for about 24 months. From the perusal of the lower court record, it appears that the appellant Rakesh was arrested on 19.12.1991 and his application for bail was rejected on 20.12.1991. Ultimately, by order dated 06.06.1992, he was granted bail on his third application for bail and he had filed his sureties on 23.06.1992. The judgement of conviction was passed by the trial court on 19.05.1995 and at that time, he was taken into custody. In this appeal, he was granted bail by order dated 19.06.1995. It also appears that the appellant was again arrested on 22.03.2014 during the pendency of the appeal and he was granted bail on 19.05.2015.

Accordingly, as per the record, the appellant has remained in jail for about twenty one months. The occurrence took place in the year 1990 for which about 26 years have already passed. Thus, in my opinion, the ends of justice shall meet if the appellant is sentenced to period already undergone along with fine of Rs.25000/- (Twenty Five Thousand), out of which Rs.20,000/- (Twenty Thousand) shall be paid to the complainant, if she is alive otherwise the same shall be paid to her legal heirs. In default of payment of fine, the appellant Rakesh shall further undergo an imprisonment of one year.

The appellant Rakesh is directed to deposit the amount of fine within one month from today failing which the court below shall be at its liberty to take coercive steps for serving out the sentence in default of payment of fine.

49. In view of the above, the appeal of appellant Ganga Ram is allowed while the appeal of Rakesh is partly allowed.

Office is directed to send a certified copy of this judgement along-with the lower court record to the court concerned at an early date for its compliance and necessary action.

Let a copy of this judgement be kept on record of Criminal Appeal No.320 of 1995.

Order Date :-10.05.2016

VNP/-