Sheela Devi & Ors. vs State
2012 Latest Caselaw 1720 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of Decision :March 14, 2012

+                         CRL.A.200/1999

      SHEELA DEVI & ORS.                ........Appellants
          Represented by : Mr.Anupam Sharma, Advocate.


                     versus

      STATE                          ...........Respondent
          Represented by: Mr.Pawan Sharma, Standing
                         Counsel (Crl.) with Mr.Harsh
                         Prabhakar, Advocate.

      CORAM:
      HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
      HON'BLE MS. JUSTICE PRATIBHA RANI

PRATIBHA RANI, J. (Oral)

1. "Frailty thy name is women" said Hamlet, being angry that his mother, Gertrude, had married his uncle Claudius within a month of his father's death. The speech generalizes the attribution of weakness from one particular woman to womankind.

2. Sneh, the deceased, reminds us of the weakness of a woman who, in the prime of her youth, set herself ablaze on not being able to bear harassment at the hands of her husband and her mother-in-law. The decision to end life was not taken in anger or haste. Love for her child, a daughter, made her think time and again to reconsider the decision to put an end to her misery by taking the extreme step. A diary written by her in her own hand has enabled us to understand her state of mind and the mental stress she withstood. She took almost 2½ months (date of incident

11.07.1996) to give a cool thought before handing over her body to fire and leave her infant daughter at the mercy of her tormentors, but mercifully the young infant girl has found safety in the house of her maternal uncle and as she stands before us in Court today, we find a young girl in her mid teens, full of vigour and zest in life. Having spoken to the young girl named Himanshi, we are proud of her courage and wish her all the best.

3. To be fair to Himanshi's grand father, on the last date of hearing, he had volunteered to give ` 4 lacs to her and today, as recorded in the separate order, the grand father has given a bankers cheque drawn in the name of Himanshi in sum of ` 4 lacs and in respect of which we have passed directions that the money would be invested in a fixed deposit till Himanshi attains the age of 21 years.

4. The appellants; Sheela Devi (mother-in-law), Sunil Kumar (husband) and Sanjiv Kumar (brother-in-law i.e. Devar) of the deceased Sneh, are impugning the judgment dated 15.03.1999 and order on sentence dated 17.03.1999 convicting them for having committed offenses punishable under Sections 498-A/302/34 IPC. They have been sentenced to undergo imprisonment for life and pay fine in sum of `1000/- each for the offence punishable under Sec.302/34 IPC and to undergo imprisonment for two years and to pay fine in sum of `1000/- each for the offence punishable under Sec.498-A/34 IPC.

4. Sneh (deceased) was admitted at Safdarjung Hospital by her husband Sunil on 11.07.1996 at about 8.00 AM, with 75% burns. The duty Constable at Safdarjung Hospital informed the concerned Police Station Malviya Nagar vide

DD No.8-A which was assigned to ASI Shalu Singh.

5. ASI Shalu Singh along with staff reached the hospital and obtained certification from the doctor regarding fitness of Sneh to make statement. On not being able to contact any SDM, he ostensibly recorded the statement Ex.PW13/2 of Sneh and got the FIR registered for offences punishable under Sec.498-A/307/34 IPC. Statement of Sneh was recorded by the SDM on 13.07.1996 and in the wee hours on 14.07.1996 at 3.15 AM, she was declared dead and thereafter the additional offence pertaining to Section 302 IPC was added in the FIR.

6. Relying on the testimonies of PW-3 Sh.Charan Singh, PW-5 Sh.Navin, PW-6 Sh.Jai Narain, PW-8 Sh.Anil and PW-11 Sh.Naresh Kumar - acquaintance and close family members of the deceased before whom oral dying declarations were statedly made by the deceased and the two dying declarations Ex.PW13/2 and Ex.PW14/1, the learned Additional Sessions judge has convicted the appellants for committing offence punishable under Section 498-A/302/34 IPC. The co-accused Santosh Kumar (father-in-law) and Sunita (sister-in-law i.e. Nanad) were acquitted because no incriminating evidence surfaced against them.

7. Noting that two neighbours, Shri Dharambir PW-1 and Smt.Pushpa PW-2 did not support the case of the prosecution with respect to the stated dying declaration made by the deceased to them, we proceed to note the testimony of such witnesses who have been believed by the learned Trial Judge to sustain the conviction of the appellants.

8. PW-5 Sh.Navin Kumar deposed that when he

accompanied by Anil PW-8 (brother of the deceased) to the hospital, on seeing them the deceased said that had her father and Anil given `50,000/- to her she would not have been burnt by her in-laws.

9. PW-14 Sh.Kuldeep Pakad deposed that he was the SDM who had recorded the statement Ex.PW-14/1 of the deceased on 13.07.1996, after Dr.Vishal Sehgal declared the deceased fit for recording statement on the application Ex.PW-13/5 and that the statement was in his hand upon which thumb impression of the deceased was at points 'A' and 'B'.

10. ASI Shalu Singh PW-13 deposed that on 11.07.1996 on receipt of DD No.8-A, he along with Ct. Narender Kumar (PW-10) reached Safdarjung Hospital where Sneh (deceased) was found admitted. Her brother and father were also present there. After getting her declared 'fit for statement' on Ex.PW-13/1, he recorded her statement Ex.PW-13/2, made endorsement Ex.PW-13/3 thereon and sent Ct.Narender Kumar for getting the FIR registered. He also deposed that the deceased could not sign on Ex.PW- 13/2 because she was perplexed. He tried to contact the SDM, South District who was on leave. Then he contacted SDM, New Delhi, the link SDM and he was also not available. The doctor on duty declared Sneh 'unfit for statement' at 1.30 pm on his application Ex.PW-13/1. Thereafter he visited the place of occurrence, got the crime scene photographed through PW-12 HC Hari Shankar and took into possession one petticoat, maxi, towel vide seizure memo Ex.PW-6/1, one kerosene lamp and one stove vide memo Ex.PW-6/2, half filled bottled of kerosene oil vide

memo Ex.PW-6/3, broken piece of bangles vide memo Ex.PW-6/4, match box vide memo Ex.PW-6/5, pieces of burnt skin vide memo Ex.PW-6/6 and one burnt piece of saree and bra vide memo Ex.PW-6/7. He prepared the site plan Ex.PW-13/4.

11. He further deposed that on 12.07.1996 he again tried to contact SDM South District near her office but she was not available. On 13.07.1996 he contacted Sh.Kuldeep Pakad, SDM, Kingsway Camp and brought him to Safdarjung Hospital where SI Vikram Singh was also present who moved an application Ex.PW-13/5 seeking permission to record the statement of Sneh by SDM the doctor on duty declared her 'fit for statement' on the application. Thereafter the SDM recorded her statement and Sneh died in the morning of 14.07.1996.

12. It may be noted that the latter part of the deposition of ASI Shalu Singh is contradicted from DD No.35-B proved by HC Beg Raj DW-4 as per which ASI Shalu Singh had returned to the police station on 13.07.1996 at 7.30 PM and there was no departure entry of ASI Shalu Singh going back to the hospital.

13. During their examination under Sec.313 Cr.PC, the plea of the appellants is that of total denial. While appellants Sunil and Sanjiv claimed themselves to be not even present at home at that time, appellant Sheela Devi claimed that she helped her husband in dousing the flames and put blanket on the deceased. She also accompanied the deceased to the hospital. All the three appellants have denied any dowry demand being made by them at any point of time or cruelty being meted out to the deceased.

14. The defence witnesses i.e. DW-1 Smt.Meera and DW-2 Sh.Prem Santoshi have been examined to prove that the appellants Sunil and Sanjiv were not at home and appellant Sheela Devi helped her husband in dousing the flames and in the process, Santosh Kumar (father-in-law already acquitted) also suffered burn injuries. DW-3 Sh.Sewa Ram, Record Clerk, Safdarjung Hospital has proved the OPD record in respect of admission of Smt.Sneh in the hospital as Ex.DW-3/1 to DW-3/3. DW-4 HC Begraj from PS Malviya Nagar has been examined to prove the relevant DD entries regarding information given by Duty Constable at Safdarjung Hospital and also the arrival and departure entries of the officials in connection with investigation of this case, which are Ex.DW-4/1 to DW-4/9. DW-5 Sh.Manoj Jain has been examined to prove that the concerned SDM or the link SDM were not on leave on the relevant dates i.e. 11.07.1996, 12.07.1996 and 13.07.1996 and that Sh.Kuldeep Pakad was SDM, Kingsway Camp and no written order or direction was given to him to work as link to SDM, South District or to go and record the statement of Sneh in Safdarjung Hospital. DW-7 Shri Bhagwan from Santom Hospital has been examined to prove on record that earlier also she attempted to commit suicide and admitted in Santom Hospital on 29.07.1995.

15. The appellants have been convicted for having committed offence punishable under Sec.302/34 IPC on the basis of two dying declarations Ex.PW13/2 and Ex.PW14/1 as well the testimony of relations i.e. PW-3, 5, 6, 8 and 11. This is a case where there are multiple dying declarations. In (1992) 2 SCC 474 Paniben (Smt.) v. State of Gujarat, the

Supreme Court while relying on a dozen earlier decisions analyzed and summed up the law on the subject under :- "(i) There is neither a rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.

(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration.

(iii) The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration.

(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence.

(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected.

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction.

(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected.

(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth.

(ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail.

(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon."

16. In 1976 (2) SCC 788 Jayaraj vs. State of Tamil Nadu, the nature of declaration which a person could make while in severe body pain was considered in following words :- "When the deponent was in severe bodily paid, and words were scarce, his natural impulse could be to tell the Magistrate, without wasting his breath on details, as to who had stabbed him. The very brevity of the dying declaration, in the circumstances of the case, far from being a suspicious circumstance, was an index of its being proved and free from the taint of tutoring. The substratum of the dying declaration

was fully consistent with the ocular account given by the eye witness."

17. Highlighting that in the MLC Ex.PW-7/1 and as per the testimony of Dr.H.K.Sharma PW-7 it is recorded that Sunil, husband of the patient had brought her to the hospital at 8.00 A.M. As per MLC :-

"Informant - Patient herself

Alleged History of sustained burn injury while she was cooking food on a k.oil stove. She lit herself on fire".

18. The second dying declaration has been recorded by ASI Shalu Singh to whom DD No.8-A was assigned. He recorded the statement of Sneh Ex.PW13/2 after getting the patient declared 'fit for statement' from the doctor at 10.30 AM. Before going into the contents of the dying declaration and ascertaining its truthfulness and voluntary nature, we would like to pen down certain facts emerging on record which make even the time of recording of dying declaration improbable.

(1) Information by the Duty Constable received at 10.15 AM at PS Malviya Nagar about admission of Sneh at Safdarjung Hospital by her husband with 75% burns.

(2) This telephonic information reduced into writing vide DD No.8-A Ex.PW13/DY and sending the same to ASI Shalu Singh through Ct. Jai Prakash for further necessary action.

(3) As per PW-13 ASI Shalu Singh, the time taken to cover the distance from PS Malviya Nagar to Safdarjung Hospital, as per PW-13 ASI Shalu Singh is

20-25 minutes after receiving the DD at 10.25 AM and their arrival at the hospital was just before 11.00 AM. (4) ASI Shalu Singh must have taken some time to reach the Burn Ward No.22, obtain the MLC, write the application, look for the doctor and request him to examine the patient to opine whether patient was fit for statement or not. In no circumstance, the doctor could declare the patient 'fit for statement' at 10.30 AM on Ex.PW13/1.

(5) The endorsement on the rukka by ASI Shalu Singh make it apparent that after getting her declared 'fit for statement', he continued making efforts to contact SDM, Sought District who was reported to be on leave and then SDM, New Delhi, who could not be contacted and then he recorded the statement of deceased and sent the rukka at 12.20 PM on the basis of which FIR was recorded vide DD No.12- A at 12.45 PM which gives us the approximate travelling time from Hospital to PS Malviya Nagar to be 25 minutes. If it is so, on the application Ex.PW13/1, the patient could not have been declared 'fit for statement' at 10.30 AM. This improbability remains unexplained by prosecution.

19. The details of the patient being get declared fit to make statement are given hereunder just to show that ASI Shalu Singh was getting the patient declared 'fit for statement' as if temperature of the patient was being noted. After seeking the opinion regarding fitness allegedly at 10.30 AM and recording the statement, on the same application again opinion has been sought at 1.30 PM at

points-B when the patient was declared 'unfit for statement'.

 "Exhibit             Date                   Time         Condition
 Ex.PW13/1            11.07.1996             10.30 AM     Fit (overwriting)
 Ex.PW13/1            11.07.1996             1.30 PM      Unfit
 Ex.PW13/DX           11.07.1996             7.45 PM      Fit
 Ex.PW13/DZ1          12.07.1996             8.00 PM      Fit
 Ex.PW13/DZ3          13.07.1996             12.50 AM     Unfit
 Ex.PW13/5            13.07.1996             7.05 PM      Fit
 Ex.PW13/5            13.07.1996             No time      Fit
 Ex.PW13/DZ2          13.07.1996             9.40 PM      Fit"

20. Even if the factum of time of recording dying declaration Ex.PW13/2 is ignored, the manner in which the dying declaration has been recorded, is sufficient to arrive at the conclusion that neither the language used therein could be that of the deceased nor she could have narrated the incident in the manner it has been recorded by the Investigation Officer. The investigating officer has claimed that he recorded the dying declaration as per the dictation given by the victim. The relevant portion wherein she has narrated the incident as to how she suffered burn injuries, is reproduced as under :-

"Subah kareeb 5 baje meri Saas va mera Devar va Pati ne uppar ki makaan ki manjil se teeno bulakar niche laye va meri Saas ne niche aakar apne dono beto se kaha ki is Randi ko aaj mitti ka tel dalkar aag laga do. Dono ladko ne mere uppar mitti ka tel dala aur meri Saas ne mere dono haath pakre va mere Pati ne machis jalakar mere kapron me aag laga di jo meri chati va mere dono paer aur meri saari jal gayi. In teeno ke khilaf uchit kanooni karyawahi ki jaye. Bayan sun liya thik hai."

21. In order to note down the inconsistencies between the two dying declarations, one recorded by the IO i.e. Ex.PW13/2 and the other recorded by SDM i.e. Ex.PW14/1, it is relevant to reproduce the relevant extract of the dying

declaration Ex.PW14/1 as to how she suffered injuries. This statement is also claimed to have been recorded by the SDM as per dictation of the victim.

'Dinank 11.07.96 samay subah kareeb 6.30 baje makaan ke upar se meri saas ne mujhe bulaya and main neeche aa gayi. Meri saas ne mere upar mitti ka tel dala. Uska maine virodh kiya. Itne mein mere devar ne machis se mujhpar aag laga di. Us samay maine saree pahan rakhi thi. Mera pati Sunil Kumar bhi wahin khada tha tatha yeh sab uske ishare se ho raha tha. Mere sasur ne meri aag bujhane ki koshish ki. Tatha intne me shor sharaba sunkar padosi bhi aa gaye. Aag bujhane ke baad mujhe padosiyon ne aspataal mein bharti karaya. Meri nanad Sunita ka bhi isme pura haatha hai. Weh jab bhi humare ghar aati, tab sasural walon ko uksati rehti thi. Mujhe jalane mein mere pati Sunil, devar sanjiv @ Chotu, saas Sheela, sasur Santosh Kumar aur nanad Sunita ka pratyaksh haath hai. Inke virudh kadi se kadi kanooni karyawahi ki jave tatha mujh nirdosh par hui atyachar ki virudh nyay dilaya jave. Bayaan sun liya, theek hai‟

22. A bare reading of the above two dying declarations is sufficient to notice the inconsistencies not only in the manner in which she was set on fire but also the role attributed to the three appellants. The trend that all the in- laws have to be implicated, not sparing even the married sisters-in-law, Sunita was named to be having direct hand in the incident though she was neither present at home at the time of occurrence nor in the first statement, any allegation of cruelty, harassment, demand was even made. Above all, while in dying declaration Ex.PW13/2 the role attributed to Sheela is that after using abusive language noted above, and instigating her two sons to pour kerosene and set her on fire, she caught her both hands, her husband and devar poured kerosene on her and husband lit the matchstick and

set her on fire. If husband was the person who lit the matchstick, in the second dying declaration he could not have been referred as merely standing nearby and she being set on fire on his direction.

23. After noticing the above inconsistencies which go to the root of the case, the manner in which the second dying declaration has been recorded by the SDM, gives the impression that a blank paper, having the thumb impression of Sneh was handed over to him, on which he started writing the statement with proper spacing. But when the statement was partly recorded, the matter to be recorded being more than the space left on the page, an effort was made to somehow reduce the spacing and font and somehow adjust the matter upto the place thumb impression was put. This is clearly visible to the naked eye and is not a mere inference. To our mind, this in itself is sufficient to discard the second dying declaration irrespective of the fact that it has been recorded by the SDM and he testified before the Court that he recorded the same as per the dictation of the victim.

24. Again the language used in Ex.PW14/1 is somewhat identical to the language used by the police officer. The admission record of Safdarjung Hospital is sufficient to prove that Sneh was brought to the hospital by her husband. Smt. Sheela, mother-in-law was also present in the hospital duly referred by name in the column 'name of relation/friend' on the MLC. The father-in-law Santosh Kumar who suffered burn injuries on both hands while trying to douse the flames of the victim was also in the same hospital undergoing treatment vide OPD card

No.2834, as proved by DW-3 Sh.Sewa Ram from Safdarjung Hospital for the injury suffered at the same time.

25. The treatment record of the deceased reveals that at the time of her admission at 8.00 AM she was critical. At 1.30 pm, she was declared 'unfit for statement'. Further treatment record shows that she remained critical till her death. Presence of father and brother of the deceased at the time of recording her dying declaration Ex.PW13/2 by ASI Shalu Singh stands admitted by the IO. The father of the deceased has admitted his presence even at the time of recording dying declaration Ex.PW14/1 by the SDM on 13.07.1996 at about 7.10 PM. The manner in which the two dying declarations are recorded are sufficient to arrive at the conclusion that deceased being in critical condition in acute pain after suffering 75% deep burns, could not have made such a lengthy statement.

26. The language used in the two dying declarations is not in consonance with the language of the deceased which we find in the Diary Mark-D1. So the two dying declarations Ex.PW13/2 and Ex.PW14/1 cannot be at the dictation of the deceased nor her medical condition was such that she could make such long statements.

27. In our opinion the truth has emerged from the diary marked D-1, which has been written by the deceased and it brings out the truth. Certain pages of the diary are missing and break the link, but the substantial part of the diary contains a long narration written by the deceased on 25.04.1996 i.e. after more than a year of the marriage and shows the trauma she faced commencing from the first night she spent in the house of her in-laws.

28. The tormented mind commences its autobiography by recording that in the confused state of mind, the deceased could not think of appropriate words to commence writing her autobiography. Then she writes that on 23.11.1994, Sunil was approved by her father as a life partner, but she came to know that he (Sunil) was forced to give his consent. On page 3 of the diary (page numbers seem to have been given by the appellant and not by the deceased), she writes that her father spent beyond his financial capacity on her marriage that took place on 3rd March and on 4th March also her mother-in-law got lot of money spent. On 5th March when she returned along with her husband after visiting her parents' house, she was left by her sister-in-law in the matrimonial room decorated with flowers. When her husband came, she was horrified when she was advised by him to serve his parents inasmuch as she could expect no love from him because he had loved another girl who had got married but to whom he had given a Mangalsurtra. The emotions brought out by the deceased can be gathered from an extract of the diary. She writes:-

„uske baad wo baat aayi jisko kabhi nahi bhool sakti, unhone apni kahani batayi, ab likhti hoon tab bhi kaleja jal jata hai. Pata nahi kaise sehen kar rahi hoon. Haan to unhone bataya ki who kisi ladki se pyar hai lekin use shadi nahi kar sake kyonki inki mummy ko wo pasand nahi aayi thi. Haan aisa nahi tha kyonki mummy aur inki khoob pateti hai phie inhone bataya ki uski shadi ho chuki hai. Main uski shadi mein nahi gaya tha parantu main eek Mangalsutra usko bhej diya tha jis par S S yani Sunil- Seema likha tha. Ek ladki ke dil par kya biti yeh main hi janti hoon. Phir inhone bataya ki inki ek rishte mein „Bhabhi‟ lagti hai, dil mein phans chubh gayi.‟

29. The suspicious nature of appellant Sunil was another cause for concern as he could not tolerate his younger brother (appellant Sanjiv @ Chotu) talking too much to her,

of which she has written in the diary. She has written about certain bitter exchange of words over the telephone between her father and her mother-in-law as also between her father and her father-in-law. She has written that but for her daughter for whom she would like to live, there was no meaning in life for her. On the birth of her daughter, at page 24 of the diary she writes: ‟10 December ko „Neenu‟ operation se paida huyi. Nursing home mein ye jate the lekin mujhse baat nahi karte the. Sirf bahar jakar apni mummy se baatein karte the. Main roti rehti thi. Doctor poochti rehti thi lekin main kuch jawab nahi deti thi‟.

30. She sums up her feelings for her husband by writing:- „Sunil tumne kabhi mujhe nahi samjha kabhi pyar nahi ki main tumhare pyar ko tarasti rahi lekin tumne mujhe kabhi pyar nahi kiya, karte bhi kaise mera pyar to tum kisi aur ko de chuke the. Main to duniya se ja rahi hoon. Bhagwan se humesha tumhare liye hi zindagi mangi hai. Lekin tum samajh nahi sakte. Chalo main to bekar thi, ab koi achhi se dulhan lana jise tum pyar karo, tumhara aur tumhari mummy ka khyaal rakkhe.‟

31. Highlighting that the appellants, to prove that the deceased had suicidal tendencies, had summoned the record from Santom Hospital as per which a few months prior the deceased had consumed phenyl, we would simply record that the diary in question clearly brings out that Sneh was so tormented by the attitude of her husband and her mother-in-law, though too a lesser extent, that life became inverted for her. Death became the escape route to happiness and living became a pain.

32. It is clearly a case of suicide by a young girl who was driven to commit suicide on account of the attitude of her husband and her mother-in-law.

33. On the issue of money demands, it is not in dispute, because this is the case of the appellants themselves that

Sunil had indeed asked for `50,000/- to be given to him by his father-in-law but by way of a loan because Sunil had wanted to set up a tent house business and we find a reference in the testimony of PW-5 Navin Kumar, PW-6 Jai Narayan and PW-8 Anil that had her father and Anil given ` 50,000/- to her, she would not have been burnt by her in- laws.

34. Charan Singh PW-3, the paternal uncle of the deceased has deposed that whenever he met the deceased she would complain of harassment by her in-laws and that a day prior to her death she had said that her in-laws were wanting `50,000/- for starting some business. Jai Naraian PW-6, the father of the deceased deposed that his daughter was harassed by her in-laws on account of dowry and there was a demand of `50,000/- by the in-laws. In cross- examination he admitted that neither accused ever demanded dowry from him, but clarified that his daughter used to convey said fact to him. Anil PW-8, the brother of the deceased has also deposed in sync with the deposition of his father.

35. We therefore have before us testimony of the relatives as per whom the deceased used to complain of harassment by her in-laws, but which member of the family of the in- laws harassed the deceased in what specific manner has not been stated by the witnesses. The cloud is cleared by the diary of the deceased which clearly brings out that it was her husband and her mother-in-law with whom she was having a problem. As regards her husband, the diary brings out that he never accepted the marriage. She has written in the diary that when she suffered from jaundice, her

husband did not care for her. She has written of an incident in her house when in front of her father, her husband gave her a beating. She has written as to how on the day when she consumed phenyl her husband traumatized her. She has written about the trauma she faced at the hands of her husband when a daughter was born to her. The appellants through the testimony of Sri Bhagawan DW-7 have proved medical papers Ex.DW-7/1 pertaining to the deceased being admitted at Santom Hospital on August 29, 1995 and discharged on August 31, 1995 and being given stomach wash and antidotes for having consumed a poisonous substance. It is thus clear that there is sufficient evidence that the deceased was treated with cruelty largely by her husband and to some extent by her mother-in-law. The cruelty is of a kind that it drove the deceased to commit suicide. She attempted a suicide on August 29, 1995, but failed. She succeeded when on the second time she set herself on fire on July 11, 1996. The diary she wrote on April 25, 1996 tells it all.

36. Appellant Sheela Devi and appellant Sunil have thus been correctly convicted for the offence punishable under Section 498-A/34 IPC. Appellant Sanjiv would be entitled to a benefit of doubt and is accordingly acquitted from the said charge.

37. Having concluded that it is a case of suicide and not homicide, the question arises whether in the context of the presumption to be drawn under Section 113-A of the Indian Evidence Act, appellant Sheela Devi and Sunil are liable to be convicted for the offence punishable under Section 306 IPC i.e. abet the commission of suicide by the deceased.

38. The diary written 2½ months prior to the incident shows a live wire connection with the cruelty with which the deceased was treated and the act of suicide.

39. The debate whether the offence punishable under Section 306 IPC would be a minor offence pertaining to a charge of murder resulted in two conflicting decisions being pronounced by the Supreme Court reported as 1994 Supp (1) SCC 173 Lakhjit Singh v. State of Punjab and (1997) 5 SCC 348 Sangarabonia Sreenu v. State of A.P. The matter was thereupon referred to a larger Bench and we have the decision reported as AIR 2004 SC 1990 Dalbir SIngh v. State of U.P., in paras 14 and 17 whereof the Supreme Court observed as under:-

"14. Here the Court proceeded to examine the question that if the accused has been charged under Section 302 IPC and the said charge is not established by evidence, would it be possible to convict him under Section 306 IPC having regard to Section 222 Cr.P.C. Sub-section(1) of Section 222 lays down that when a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it. Sub- section(2) of the same Section lays down that when a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it. Section 222 Cr.P.C. is in the nature of a general provision which empowers the Court to convict for a minor offence even though charge has been framed for a major offence. Illustrations (a) and (b) to the said Section also make the position clear. However, there is a separate chapter in the Code of Criminal Procedure, namely Chapter XXXV which deal with Irregular Proceedings and their effect. This chapter enumerates various kinds of irregularities which have the effect of either vitiating or not vitiating the proceedings. Section 464 of the Code deals with the effect of omission to frame, or absence of, or error in, charge. Sub- section(1) of this Section provides that no finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the

Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. This clearly shows that any error, omission or irregularity in the charge including any misjoinder of charges shall not result in invalidating the conviction or order of a competent Court unless the appellate or revisional Court comes to the conclusion that a failure of justice has in fact been occasioned thereby. In Lakhjit Singh vs. State of Punjab 1994 Supp (1) SCC 173 though Section 464 Cr.P.C. has not been specifically referred to but the Court alleged the conviction from 302 to 306 IPC having regard to the principles underlying in the said Section. In Sangaraboina Sreenu vs. State of A.P. (1997) 5 SCC 348the Court completely ignored to consider the provisions of Section 464 Cr.P.C. and keeping in view Section 222 CrPC alone, the conviction of the appellant therein under Section 306 IPC was set aside."

17. There are a catena of decisions of this Court on the same lines and it is not necessary to burden this judgment by making reference to each one of them. Therefore, in view of Section 464 Cr.P.C., it is possible for the appellate or revisional Court to convict an accused for an offence for which no charge was framed unless the Court is of the opinion that a failure of justice would in fact occasion. In order to judge whether a failure of justice has been occasioned, it will be relevant to examine whether the accused was aware of the basic ingredients of the offence for which he is being convicted and whether the main facts sought to be established against him were explained to him clearly and whether he got a fair chance to defend himself. We are, therefore, of the opinion that Sangarabonia Sreenu (supra) was not correctly decided as it purports to lay down as a principle of law that where the accused is charged under Section 302 IPC, he cannot be convicted for the offence under Section 306 IPC."

40. Dalbir Singh‟s case (supra) was followed in the decision reported as (2007) 9 SCC 211 Virender Kumar vs. State of U.P. wherein in the absence of specific charge under Section 306 IPC, conviction under Section 306 IPC was made though the appellant was charged under Section 302 IPC.

41. We accordingly terminate our opinion by disposing of Crl.Appeal No.200/1999 by acquitting appellant Sanjiv of the offences he was charged of and set aside the impugned judgment qua him in its entirety. Qua appellants Sheela

Devi and Sunil acquitting them of the charge of having murdered Sneh, we convict them for having abetted the suicide of Sneh and maintain their conviction for offence punishable under Section 498-A/34 IPC.

42. On the point of sentence, we note that whereas Sunil remained in custody for 6 years and 1 month when he was admitted to bail and his mother Sheela Devi remained in custody for about 5 years. We are of the opinion that ends of justice would be met if they are punished to undergo imprisonment for the period already undergone. While inflicting said sentence we have taken into account the gesture of paying `4 lakhs for the welfare of Kumari Himanshi, who is also a victim of what happened.

(PRATIBHA RANI) JUDGE

(PRADEEP NANDRAJOG) JUDGE

MARCH 14, 2012 st/dk