Delhi High Court

Subhash Chandra vs State on 7 March, 2013

Author: Indermeet Kaur

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Judgment reserved on :07.02.2013
                                 Judgment delivered on: 07.03.2013
+      Crl. A. 327/2000

       SUBHASH CHANDRA                 ...Appellant
               Through: Mr. Dinesh C. Mathur, Sr. Adv. with
                        Mr.Badar Mahmood, Mr.Pankaj Verma,
                        Mr.Devinder Dedha and Mr.Anish
                        Dabbas, Advs.

                                 Versus
       STATE                                          ...Respondent
                       Through: Ms. Fizani Hussain, APP along
                                with Inspector Ajay Tomar, AHS,
                                Crime.
                                Mr. Sanjay Ghose, Mohd. Farrukh,
                                Ms.Gayatri Sharma, Adv. for R-1.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1. The appellant Subhash Chandra had been convicted on

10.05.2000 for the offence under Section 306 of the Indian Penal Code

(hereinafter referred to as the IPC) and had been sentenced to undergo

RI for seven years and to pay a fine of Rs.1 lac; in default of payment of

fine SI for six months; half of the fine so deposited was to be paid to the

parents of the victim.

2. This is an unfortunate incident where the life of a newly married

lady-Shashi Bala @ Kanchan was lost. The victim was married to the

appellant on 04.05.1978 as per Hindu rites in Delhi. Within less than

one year of her marriage i.e. on 17.03.1979 she was found dead; she

had received 100% burns in her matrimonial home and on being taken to

the All India Institute of Medical Sciences (AIIMS), she was reported

dead; she was pregnant by 24-26 weeks.

3. The FIR No.443/1979 was registered on 17.3.1979 for the offence

under Sections 302/34 of the IPC on the complaint of her mother Smt.

Satya Rani Chadda (PW1). Since there was delay in the progress of the

investigation a private complaint (Ex.PW1/D) was lodged before the

learned ACMM alleging that a few days before the marriage, the

accused persons i.e. the appellant and his parents had made a demand

for a scooter, refrigerator and television but since the complainant could

not afford to fulfill their demands, her daughter was continuously

taunted by her in-laws and husband on this count. Even after she became

pregnant, the appellant continued to raise his demand for a scooter and

threatened them that in case the said demand is not fulfilled Kanchan

would face dire consequences. This demand was last repeated on

15.03.1979 i.e. 2 days before the fateful incident.

4. Chargesheet was initially filed under Section 302 of the IPC; the

appellant and his mother were however summoned under Sections

306/34 of the IPC.

5. Relevant would it be to state that this offence is of the year 1979

when at that time the provisions of Sections 498A, 304B of the IPC and

the presumptions contained in Section 113A and 113B of the Indian

Evidence Act were not available. These amendments had come into the

IPC and the Indian Evidence Act post this incident, vide Amendment

Act 46 of 1983.

6. Prosecution had examined eleven witnesses at the pre-summoning

stage on the complaint case. PW1 was the complainant herself, her

husband i.e. the father of the victim, Suraj Prakash, was examined as

PW7. PW9-S.S. Kohli was the brother of the victim. PW11-Piara Lal

was a neighbour. All of them were corroborative on their version that

the appellant and his mother had harassed victim; her death was the

result of their acts. Thereafter in the course of the trial five witnesses

were examined of whom the complainant i.e. the mother of the victim

being the primary witness was examined as PW1. She had reiterated her

averments made in her complaint (Ex.PW1/D) and her testimony is

largely to the effect that cruelty was inflicted upon her daughter by the

appellant and his mother; the appellant living in Mathura was not

willing to take his wife with him to Mathura; he would only come on

stray weekends to Delhi and even then there was no privacy available

for the newly married couple at their Gandhi Nagar residence; this was

in spite of the fact that Kanchan was ready to live even in the one room

accommodation in Mathura and always expressed her desire to do so;

the appellant continued to deprive his newly wedded wife of his

company and contact which willful conduct on his part amounted to a

"cruelty". The doctor who had conducted the post-mortem of the victim

was examined as PW2; he had noted 100% burns on the victim; she was

also pregnant and carrying a foetus of 6-1/2 months. Death had occurred

at 9.00 PM. The Investigating Officer was examined as PW5-SI Bachan

Singh. PW3-Ramesh Lal and PW4-Jiwan Kumar were residents of

the same area being neighbours; the learned Single Judge had however

not relied upon their testimony.

7. In his statement under Section 313 of the Cr.P.C., the appellant

has set up the plea of alibi; to support his submission, he has produced

four witnesses in defence; his submission being that he was a resident

of Mathura and it was only on weekends that he used to come to Delhi;

on the fateful day, he was in Mathura; he had been telephonically

informed by his younger brother-Naresh about the incident; he was not

present at the matrimonial home at the time of the incident. He had also

relied upon the letters purported to have been written by Kanchan (X1 to

X9) which were put to PW1 in her cross-examination. Defence sought

to be set up by the accused was that his wife was happy in the

matrimonial home and she had no grievance either against the appellant

or his parents.

8. On behalf of the appellant, vehement arguments have been

addressed by the learned counsel for the appellant. Submission being

that this was a case where there is admittedly no suicide note; there is no

document to show that there were any earlier complaints made by the

parents of the victim or the victim herself; it is also not a case where it

has been brought on record that the couple used to have frequent

quarrels with one and another. The plea of dowry demand has been set

at rest by the fact that the case filed by the parents of the victim under

the Dowry Prohibition Act, 1961 had collapsed and the so called

demand of a scooter alleged to have been made by the appellant before

marriage and repeated two days before the date of the incident did not

amount to a consideration of marriage which order of the learned MM

has been upheld upto the Apex Court. Submission of the learned counsel

for the appellant being that the so called "cruelty" in no manner be

related to a dowry demand. Attention has been drawn to the definition

of "cruelty" as contained in Section 498A of the IPC and the explanation

appended thereto. Submission being that at best Clause „a‟ of the

explanation can be attracted and not clause „b‟ in view of the fact the

case under the Dowry Prohibition Act has failed. Even under Clause „a‟

there is no evidence to show that there was any "willful conduct" on the

part of the appellant to have driven his wife to commit suicide; the so

called cruelty as detailed in the version of PW1 does not fit within the

said parameters; there was no "abetment" on the part of the appellant.

Further submission being that on the same set of facts and evidence

when his mother stands acquitted, the appellant cannot be convicted.

9. To substantiate his argument, learned counsel for the appellant

has placed reliance upon Gangula Mohan Reddy vs. State of Andhra

Pradesh reported as 2010(1) UJ SC 0142. Submission being that the

allegation of "abetment" involves a mental process of instigating a

person or intentionally aiding a person in doing of a thing; without a

positive act on the part of the accused to instigate or aid in committing

suicide the conviction cannot be sustained. Submission being that

where there is no intention to establish that the husband either aided or

instigated the deceased to commit suicide, the conviction of the husband

under Section 306 of the IPC was improper. Reliance has also been

placed upon Hansraj vs. State of Haryan (2004) 12 SCC 257 to support

the argument that the 11 witnesses who had been examined at the pre-

summoning stage and their testimony has to be essentially read.

Attention has been drawn to the statement of Kunan Devi (PW6- at the

pre-summoning stage). She was the maternal grandmother of the victim.

Submission being that PW6 had categorically stated that the appellant

was not present at the scene of occurrence and for which purpose,

attention has also been drawn to the cross-examination of the PW5 (SI

Bachan Singh) where also in a part of his cross-examination, he has

admitted that the appellant-Subhash Chandra had come to the spot after

10.30 PM and had informed him that he has come from Mathura after he

had been intimated by his brother Naresh about the incident.

Submission of the learned counsel for the appellant being vehement on

this count that the appellant was not even in Delhi on the date of the

incident and as such the question of his abetting the suicide of the

deceased did not arise.

10. Reliance has also been placed upon Sharad Kumar Aggarwal vs.

State 2012 (3) JCC 2196 to substantiate his argument that the counsel

for the complainant has no locus standi to be granted a hearing. In the

case of Sharad Kumar Aggarwal (supra) it was a third party intervention

at the stage of an application for anticipatory bail where the question of

a hearing to be granted to such a third party arose. Present case is a

complaint case on which complaint the accused had been summoned.

Para 13 of the judgment the court has in fact noted that with the passing

of time the concept of locus has been relaxed in cognizable offences

and in given cases the counsel for the complainant may be granted

permission to assist the State counsel. Permission is accordingly

accorded to the counsel for the complainant to assist the Public

Prosecutor. It is also admitted by the parties that the evidence both oral

and documentary recorded at the pre-summoning stage be read as

evidence to decide the fate of the case.

11. On behalf of the prosecution (with the assistance of the learned

counsel for the complainant), it has been argued that in all such like

cases there cannot be any direct evidence, it can only be a case of

circumstantial evidence. It has been emphasized that admittedly the

victim had died within less than one year of her marriage i.e. when she

was almost 6-1/2 months pregnant and carrying another life; that by

itself reflects upon the fact that unless there was a strong instigation or a

provocation to commit the act, the victim would not have resorted to this

extreme step of taking her own life. Submission being that each case has

to be decided in the light of its own facts. In the instant case, the

matrimonial home at Gandhi Nagar had only two rooms in which four

adults were living i.e. the mother-in-law, brother-in-law, sister-in-law

and the victim herself; apart from the appellant whenever he chose to

join the family from Mathura. This accommodation was not sufficient

for the newly married couple to enjoy any privacy. Submission being

that between 07.02.1979 to 02.3.1979 there appears to be a sudden spurt

of letters purported to have been written by the appellant to her mother-

in-law wherein the appellant has appeared to explain her happy marital

status which letters/handwriting had been denied by the mother of the

victim; these letters are fabricated as there was no occasion on the part

of the appellant to have preserved these letters which are of the year

1979 and to have produced them in the cross-examination of PW1

which was recorded almost two decades later i.e. in the year 1995.

Submission being that PW1 has been categorical in her statement that on

15.09.1979 the victim and the appellant had visited the house of PW1

where the demand of a scooter had again been repeated. PW1 was

unable to fulfill this demand; submission being that this demand was a

continuation of the earlier demand which had been raised prior to the

marriage and even presuming that the case under the said Act had failed;

the fresh demand which was made on 15.03.1979 would still constitute a

cruelty within the meaning of Clause „b‟ of the Explanation appended to

Section 498A. Submission being that it was not this stray incident

alone but the continuous course of conduct adopted by the appellant in

the marital span of ten months that had weighed heavily upon the mind

of the victim which had unfortunately led to the suicide. To support this

submission reliance has been placed upon Gurbachan Singh vs. Satpal

Singh AIR 1990 SC 209, Thanu Ram vs. State of M.P. (2010) 10 SCC

353, Ranbir Singh vs. State of Punjab (2004) 13 SCC 129, Hira Lal vs.

State AIR 2003 SC 2865 and Alister Anthony Pareira vs. State of

Maharashtra (2012) 2 SCC 648. Submission being that in Thanu Ram

(supra), the Apex Court had noted that ordinarily, a woman in an

advanced stage of pregnancy would not commit suicide even when

treated with cruelty; it is only in extreme circumstances that a woman

may decide to take her life and that of her unborn child and that is

when she reaches a point of no return which itself would prove the

allegation of instigation.

12. In rejoinder, it has been submitted that once it is proved that the

appellant was not in Delhi on the date of the incident, it would be

impossible for the prosecution to connect the accused with the act of

abetment on the part for the victim to have ended her life.

13. Record shows that the parties had been married on 04.05.1978.

Admittedly, they belong to the middle economic strata of the society.

Their matrimonial home was at House No.719/36/A1, Guru Nanak Gali,

Dharampura, Gandhi Nagar. It was a two room house. Apart from the

married couple, the sister, brother and the mother of the appellant also

resided in that house. The appellant at that time was working as a

Manager at the Bata Shoe Store in Mathura.

14. This case was set into motion by the complaint of PW1. FIR

No.443/1979 was lodged on 17.3.1979 under Sections 302/34 of the IPC

against the appellant and his mother. There was no progress in the

investigation; in fact at one stage a cancellation report was filed by the

police. However, since the mother of the victim had already in the

meanwhile filed a private complaint (September 1980) cognizance was

taken on this complaint. The relevant extract of the complaint filed by

PW-1 dated September, 1980 reads herein as under:

―IN THE COURT OF SHRI G.D. DHANUKA, ADDL.CHIEF JUDICIAL MAGISTRATE, SHAHDRARA, DELHI Complaint Case No. of 1980

In Re:-

Satya Rani Chadha W/o Shri Suraj Parkash Chaddha,

r/o 142/Old Gupta Colony, Delhi ............Complainant Versus

1.Subhash Chand

2.Naresh - Son of Shri Kasturi Lal

3.Krishna Wanti, w/o Kasturi Lal

4.Chanchal

5.Aruna-D/o Kasturi Lal All resident of 719/36-A/I Gugu Nanak Gali, Dharampura, Gandhi Nagar, Delhi .............Accused Persons

P.S.:-Gandhi Nagar, Offence U/S : 302/34 IPC F.I.R. No.443/1979 Dt. 17.3.1979

Complaint u/s 200 Cr.P.C. For registration and trial of the case, for offences U/S 302 Read with Sec. 34 IPC.

Sir, The complainant humbly begs to submit as under:-

1. That the complainant is the mother of Smt.Kanchan Rani alias Shashi Bala, who gave her daughter in marriage to the accused No.1, a few days before the marriage the accused persons made a demand of a Fridge, a Scooter and a television set as dowry, but the complainant could only afford to give a Fridge and Rs.500/- for the Television. The Accused No.1 and the other family members being accused No.2 to 5 resorted to harassing tormenting and taunting the daughter of the complainant.

2. The accused No.1 after the pregnancy of the daughter of the complainant insisted that the demand of the Scooter which had not been met and which had been put forward at the time marriage be fulfilled. He threatened the complainant with dire consequences of the same was not met. That the accused No.1 made the demand again on the 15th March 1979, when he visited the complainant along with the complainant's daughter.

3. That the complainant received information on or about 9.30 p.m. on 17.3.1979 that her daughter had been burnt by the accused persons

who had entered into a conspiracy with the common intention to kill the complainant's daughter. As a result of the burns the daughter of the complainant succumbed to the injuries.

4. The complainant soon thereafter lodged a report with the Gandhi Nagar Police Station about the alleged murder. The accused persons were arrested and were released on bail subsequently.

5. That the complainant has approached the police authorities several times to enquire why no case has been filed till today. The police authorities have put her off on one pretext or the other.

6. The complainant submits that two witnesses Jiwan Lal of Rani Bagh and Ramesh Lal of Gandhinagar have deposed that they had seen the accused No.1 and the other accused at the scene of offence when the Offence is alleged to have been committed. That if these witnesses are to be believed then the alibi of accused No.1 that he was not present at the time when the offence is alleged to have been committed is false.‖

―4/10/80 Present: Complainant with Miss Rani Jethmalani, Advocate.

Complaint filed today be regd.

Ld. P.O. of this court has been proceeded earned leave.

Put up on 3.1.1981 for evidence of the complainant.

MM 4/10/80‖

15. A perusal of this complaint shows that although FIR No.

443/1979 under Sections 302/34 of the IPC had been registered at

Gandhi Nagar on 17.03.1979 yet the complainant was not satisfied with

the progress being made therein and she was constrained to file the said

complaint. Accused persons were however summoned not for the

offence under Section 302 of the IPC but for the offence under Section

306 of the IPC. This was vide a detailed order dated 10.01.1985 which

order not being the subject matter of challenge by either party has since

attained a finality.

16. The allegations on the FIR and the complaint are categorical and

corroborative of one another. PW1 has stated that even two days prior

to the incident i.e. on 15.03.1979 the appellant had made a demand for a

scooter which had been made on an earlier occasion as well. He had

made this demand when he visited PW1 along with the deceased. This

was in spite of the fact that his wife was pregnant. On 17.03.1979,

PW-1 had been informed that her daughter had died by burn injuries.

Further grievance being that on the date of the incident, the appellant

was in Delhi and the plea of alibi sought to be set up by the appellant

that he was not in Delhi is a lie.

17. On this complaint statement of 11 persons were recorded. PW6

was the grandmother of the victim. Her statement has been relied upon

by the learned counsel for the appellant to substantiate his submission

that she has made a clear statement that when she reached the spot the

husband of the victim was not present there.

18. This court will first answer the contrary stands taken by the

respective parties as to whether on the date of the incident i.e. on

17.03.1979, the appellant was present in Delhi or not.

19. Apart from the statement of PW6 [Kunan Devi as noted (supra)],

PW5-SI Bachan Singh (part investigating officer) in his cross-

examination has admitted that the appellant-Subhash Chandra reached

the spot late at night i.e. after 10.30 PM and informed him that he had

received information about the death of his wife and he is coming from

Mathura. This is also the version of the appellant in his statement under

Section 313 of the Cr.P.C. To substantiate his plea of alibi, DW2-Partap

Singh who was also a part investigating officer has deposed in favour of

the appellant on this point. He has on oath stated that during the course

of the investigation, he had found that Naresh, brother of the appellant

had telephoned Subhash at Mathura from the telephone of Keemti Lal

about the death of his wife-Shashi and after leaving the keys of the shop

with Mr. Sharma, Subhash had come to Delhi; DW2 had checked the

cash memos where Subhash was working as a Manager and found that

he was present in the shop on 17.03.1979 throughout the day as he had

signed them; he had also verified from the telephone record at

Connaught Place and found that Naresh had made a trunk call to

Subhash from the telephone of Keemti Lal. He had initialed the record

of the Bata Shoe Company at Mathura. In his cross-examination,

although he has admitted that he has not taken into custody any record

of the Company yet at the same time, he volunteered that he had

directed the salesman to preserve the record as this was a police case.

DW3-Devdutt Sharma was working as a salesman at the Bata Shoe

Company on the relevant day i.e. 17.03.1979. He has also corroborated

this version admitting that the bill books and attendance register of

17.03.1979 had been signed by the appellant whose signatures he had

identified. Although the learned Public Prosecutor has drawn the

attention of this Court to a further part of his cross-examination wherein

he has stated that after five years every document of the Company is as

per practice destroyed; yet in this case there was volunteered

information that this document was not destroyed as this record had

been directed to be preserved being a police case. Against all these

versions there is a version of PW1 that the appellant was present at the

spot when she reached there. In part of her cross-examination, PW1 has

admitted that she had reached the spot after 10.30 PM and her mother

(PW6-Kunan Devi) had reached there prior in time, meaning thereby

that when PW6 had reached the spot which was prior in time to 10.30

PM the appellant was not present ; as per PW-1 he was present after

10.30 PM i.e. by the time she had reached. The post-mortem has

recorded the time of death as 9.00 PM. The appellant having been seen

at the spot for the first time by PW-1 after about 10.30 PM, it could be

that the appellant had reached Delhi from Mathura in this intervening

period. Both these versions thus can be reconciled. Testimony of DW3

is also relevant on this count. He has admitted that as per the record the

appellant was on leave on 15.03.1979 and 16.03.1979. 17.03.1979 was

a Saturday. The weekly off of the appellant at Mathura was Tuesday.

Thus the submission of the appellant that on 17.03.1979 it being a

working day, the appellant was at his office at Mathura appears prima

facie to be correct. The fact that the appellant was on leave on the

subsequent two days i.e. 18.03.1979 and 19.03.1979 does not really help

the version of the prosecution as obviously if his wife had died on

17.03.1979 the natural corollary would be that the appellant would have

absented himself from his office for the following two days.

20. Benefit of doubt on this score is accordingly given to the

appellant keeping in view the overall evidence which has been adduced.

This Court shall now proceed on the basis that the appellant was not

present in Delhi at the time when the unfortunate incident occurred.

21. This incident is of the year 1979. The accused has been charged

for the offence under Section 306 of the IPC which is „abetment of

suicide‟ and which reads herein as under:-

―306. Abetment of suicide- If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

22. The definition of „abetment‟ is contained in Section 107 of the

IPC and reads as under:-

―107. Abetment of a thing.- A person abets the doing of a thing, who-

First.- Instigates any person to do that thing; or Secondly.- 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, and in order to the doing of that thing; or Thirdly.- Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation 1.- 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.‖ Explanation 2- Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and

thereby facilitate the commission thereof, is said to aid the doing of that act.‖

23. The amendment in the Indian Evidence Act i.e. insertion of

Section 113A was introduced by the Amendment 46 of 1983. In view of

the judgment of the Apex Court State of Punjab vs. Iqbal Singh,

1991(20) SCC (Crl.) 513, the provisions of Section 113A have to be

read in retrospective operation.

24. Section 113A of the Indian Evidence Act reads as under:-

―113A. Presumption as to abetment of suicide by a married woman.- When the question is whether the commission of suicide by a women 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 has 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.

Explanation- For the purposes of this section, "cruelty" shall have the same meaning as in section 498-A of the Indian Penal Code (45 of 1860).‖

25. Explanation of 113 A shows that the definition of cruelty shall

have the same meaning as contained in Section 498A of the IPC.

26. Section 498A of the IPC. reads as under:-

―498A. Husband or relative of husband of a woman subjecting her to cruelty.--Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be pun-

ished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation- For the purpose of this section, ―cruelty‖ means--

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.‖

27. For raising the presumption under Section 113A, it must first be

shown that the woman has committed suicide. This act must have been

committed within a period of seven years from the date of her marriage.

The husband or such relative of her husband had subjected her to

cruelty. If all these ingredients are fulfilled, 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.

28. The first two ingredients are admitted. This is a case of suicide

which had occurred within less than one year of marriage of the parties.

The question which has to be answered is whether the acts of the

appellant fall within the definition of „cruelty‟ as contained in Section

498A of the I.P.C. This definition is contained in two parts. Both parts

are in the alternate. In the first category, there must be a willful conduct

on the part of the accused which is of such a nature to drive the victim to

commit suicide. In the second alternate, it must be harassment by the

appellant upon the victim of such a kind which is with a view to

coercing her or any person related to her to meet any unlawful demand

for any property or valuable security.

29. Submission of the learned counsel for the appellant is that the

second alternate cannot come into play as the case under the Dowry

Prohibition Act had fallen flat and which had been adjudicated upon

right up to the Apex Court is a submission without force. PW1 has been

consistent in her approach. Her case from the inception is that the

demand of the scooter which had been repeated by the appellant both

before the marriage and again on 15.03.1979 which was just two days

before the date of the incident and at that time when the victim was in

her advanced staged of pregnancy; it being a reiteration of a demand

which was made on earlier dates; merely because the Court at that time

did not consider the said demands of a scooter, fridge and television

made prior to the marriage to come within the rigors of the Dowry

Prohibition Act, would not affect the subsequent demand which was

made on 15.03.1979, it was an unlawful demand for a scooter. It was

this continuous course of conduct adopted by the appellant which had

traumatized the victim. The mental pressure and torments were

continuing upon her throughout their less than 10 month old marriage. It

was not a case of one single incident which is alone relevant. As noted

supra and at the cost of repetition, the appellant was living in Mathura;

this was right from the inception of their marriage as he was working as

Manager in Bata Shoe Store. He would come to Delhi on stray

weekends. Marital home of the parties was a two room apartment in

which four adults members were already living; whenever the appellant

chose to join his wife in Delhi, they would admittedly not be able to

enjoy any moment of privacy. The letters produced by the appellant in

the course of the cross-examination of PW1 are telling circumstances.

As early as September 1978 (Ex. P5), victim had written to her mother

informing her that her husband also has sisters and he should not harass

anyone; she was indirectly telling her mother that her husband was

harassing her; at the same time she tried to pacify her mother not to

worry about her. Ex. P4 written on 28.09.1978 to Mandirwali Mataji is

also on the same lines; the victim was trying to reassure herself that

everything would be alright and she must learn to trust her husband; it

was a reassurance and re-conciliation with her circumstances. Ex.PW3

written on 10.10.1978 reflects the tension that the married couple was

facing; this was a letter written by the appellant to his mother-in-law

stating that she should advise her daughter (victim) not to live each day

like a year; the appellant was aware of the traumatic mental state that

his wife was undergoing. Thereafter there appears to be a spurt of

letters dated 07.02.1979, 14.02.1979 and 02.03.1979; all these letters

were written within less than a span of one month purported to be in the

handwriting of the victim, written to her mother-in-law and

grandmother-in-law posing a rosy picture about her marital status; these

letters were vehemently denied by PW1 who had stated that they were

not in the handwriting of her daughter. Even otherwise as rightly noted

by the trial judge it would be impossible to imagine that these letters had

been preserved by the appellant for almost 20 years to be produced in

the cross-examination of PW1 which had occurred in the year 1995 and

the letters are of the year 1979. These letters were clearly fabricated; no

reliance was rightly placed upon them; the role of the judge being to

sift the grain from the chaff.

30. The victim was admittedly not living with her husband in the

marital home; they were only sharing patches of togetherness. The letter

Ex. PW3 produced by the appellant himself reflects the tension

prevailing in their marital life. Testimony of PW1 has in fact remained

un-rebutted and untarnished. It is also relevant to note that no suggestion

has been given to PW1 or to any witness of the prosecution that the state

of mind of the victim was not healthy; it is not the defence of the

appellant that the victim was either petulant, oversensitive or

overreacting to the normal situation. In a part of the judgment, the trial

court has been constrained to note that the investigation appears to be

tainted and unfair. This is evident from the fact that a cancellation report

had in fact been filed but no orders were passed on the said report as

meanwhile the mother of the victim who had not allowed the matter to

rest had filed a private complaint on which cognizance was taken and

accused persons were sent for trial.

31. The post-mortem report is also a crucial piece of evidence. The

post-mortem had been conducted by PW2-Dr. L.T. Ramani. He had

noted 100% burns on the body surface of the victim. Although the

clothes worn by the victim were burnt but there was no smell of

kerosene on them. It is common knowledge that if a person commits

suicide, he/she would have poured kerosene not only over the head but

the kerosene would have dripped over his/her clothes. Kerosene was

however not detected on the clothes of the victim but only on her hair.

The finding on this count is better left unanswered as noted supra,

appellant had been summoned only for the offence under Section 306 of

the IPC and at this stage, there would be no scope to consider the aspect

of Section 302 of the IPC although initially the FIR had been registered

for murder.

32. The word „suicide‟ has not been defined in the Indian Penal Code;

however its meaning is well known; „sui‟ means self; „cide‟ means

killing; implying the act of self-killing. Why would a woman who is on

the verge of motherhood kill herself. The answer lies in the following

facts which have emerged; the picture painted on the canvas pursuant to

the cumulative oral and documentary evidence collected is as follows:-

(i) The appellant and the victim in their 10 month old marriage

did not live together in their matrimonial home. Appellant

was working in Mathura and would only on stray

occasions come to Delhi. He was not keen to take his wife

to join him at Mathura; she continued to live with her

mother-in-law, sister-in-law and brother-in-law in Delhi.

This was a two room house. Whenever on rare occasions

when the appellant came to Delhi he shared this two room

house which did not enable the married couple to enjoy any

moments of privacy. The deceased was keen to join her

husband in Mathura and for some time i.e. between

September to November 1978, she stayed in Mathura but

was again sent back to Delhi.

(ii) The mental trauma of the victim was continuous; even

before the marriage the demands for scooter, fridge and

television were poured upon her mother which she could

not fulfill; even though these demands did not fall within

the rigors of the Dowry Prohibition Act, the demand for a

scooter was again repeated on 15.03.1979 which was just

two days prior to the day of the incident and at a time

when the deceased was in her advanced stage of pregnancy

and carrying the 6-1/2 old unborn child of her husband, her

trauma did not appear to end.

(iii) The incident is of 17.03.1979. On 15.03.1979, the appellant

had accompanied the victim to his mother-in-law‟s house.

On 16.03.1979, he was on leave and in Delhi. Even

presuming that he was not in Delhi on 17.03.1979, it would

make little difference. He was the instigator and the inciter

for the act of the victim of taking her own life. As noted

by the Apex Court in Thanu Ram (supra), ordinarily, a

woman in her advanced stage of pregnancy would not

commit suicide even when she has been treated with

cruelty; it would only be in extreme and extenuating

circumstances that a woman may decide to take her life and

of her unborn child and that would be when she reaches a

point of no return. This by itself would prove the allegation

of instigation.

(iv) The definition of „abetment‟ (in Section 107 of the IPC) in

its first part read with explanation 2 would be relevant. The

continuous course of conduct adopted by the appellant was

the facilitating factor which had led to the commission of

the offence i.e. the act of committing suicide by the victim.

(v) Presumption contained in Section 113A is no doubt a

rebuttal presumption. Appellant has failed to rebut it; he

has failed to discharge this burden. This presumption thus

comes to the aid of the prosecution. This presumption

arises when the question to be answered is as to whether

the commission of suicide by the woman has been abetted

by her husband or any relative of her husband and that her

husband or such relative of her husband had subjected her

to cruelty.

(vi) Cruelty as noted (supra) has been defined under Section

498 A. Both explanation (a) and explanation (b) appended

to Section 498 A are relevant. The acts of the appellant

were willful and deliberate acts and as noted supra, it was

not one single act which is relevant; it was a continuous

course of acts, both express and implied, which were

reflected in the conduct of the appellant which had led the

victim to take this extreme step; the mensrea in his conduct

is implicit; the intent being to traumatize and pester his

wife to a point of no return. The cruelty inflicted upon the

victim would thus also be covered in explanation (b) of

Section 498A. The word „harassment‟ has not been defined

in the statute. What is „harassment‟? The acts of the

appellant are enough indication of the harassment which

the victim had suffered.

(vii) One can also not forget the fact that the victim in this span

of 10 month of her married life, belonging to the middle

class economic strata, was not wanting even her mother to

know her pain; the letters written by her to her mother and

to Mandirwali Mataji were almost like reassurances to

herself, trying to persuade herself to believe that everything

would be fine in her marital life; she must learn to trust her

husband; at the same time informing her mother that her

husband had sisters and should not harass anyone; this was

an indirect mode of informing her mother that she herself

was being harassed by her husband;

(viii) The definition of „cruelty‟ as contained in Section 498A in

fact reflects the anxiety on the part of the legislature to

extend protection to the weaker spouse. The mensrea on the

part of the appellant to drive his wife to this extreme step

has to be read from the course of conduct adopted by him;

it is to be read in his conduct. It is only when the life of a

woman in the family of the husband becomes so intolerable

and so miserable that it drags the woman towards suicide.

(ix) Even presuming that the appellant was absent on

17.03.1979, the date of the incident, would not take him

away outside from the rigors of Section 306 of the IPC.

(x) It is also not the case of the appellant that the victim was

suffering from ill health either mentally or physically;

neither has any suggestion been made to any witness of the

prosecution on this count and neither is this the defence

sought to be set up by the appellant at any stage; either in

the cross-examination of the witnesses of the prosecution;

or at the time when he got his statement recorded under

Section 313 of the IPC or at the last stage, when he chose to

lead his evidence in defence.

(xi) This also appears to be a classic case where the

investigation is tainted; the investigating agency which is

the police and upon whom every citizen of the county looks

for protection did not appear to have performed its

obligations. So much so that initially the police had also

sought to file a cancellation report but that was not taken up

as the mother of the victim who appeared to be running

from pillar to post to see that the culprits are brought to

book, had meanwhile filed a private complaint on which

cognizance was taken. The trial court has also noted the

failure of the investigating agency to perform its duty.

Investigation is clearly shoddy and sealed parcels were sent

for scientific examination but surprisingly what was picked

up for a scientific examination were innocuous articles i.e.

wooden blocks containing planks forming a part of the

door. The investigating agency had intentionally and

deliberately, to shield the accused not picked up the hair,

nails or the viscera of the victim. The samples of kerosene,

match box, stove or any other article lying at the scene of

the incident were also not sent for any forensic analysis.

The investigating officer-DW2 who had retired has in fact

come to the rescue to the appellant and has deposed as a

defence witness. The callous approach adopted by the

Investigating Agency deserves to be condemned.