Rupesh Kumar vs State
2013 Latest Caselaw 4388 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       CRL.A. No. 371 of 2000

                              Date of Decision: 25th September, 2013


RUPESH KUMAR                                            ..... Appellant
                             Through:   Mr.   Ajay    Verma    and
                                        Mr.     Udayan     Tandon,
                                        Advocates.
                             versus
STATE                                                 ..... Respondent
                             Through:   Ms. Fizani Husain, APP for the
                                        State.

CORAM:
HON'BLE MS. JUSTICE SUNITA GUPTA

                               JUDGMENT

:SUNITA GUPTA, J.

1. This is an appeal against the judgment dated 23rd May, 2000

and order on sentence dated 25th May, 2000 in Session Case No.13/96

arising out of FIR No.126/92 under Sections 498A/304B/34 IPC

registered at Police Station Seelampur, vide which the appellant was

convicted for offence punishable under Sections 306 and 498A of the

Indian Penal Code, 1860 while co-accused Brij Devi was acquitted of

the charges levelled against her. Appellant Rupesh Kumar was

sentenced as under:

(i) Rigorous imprisonment of five years and fine of Rs.2,000/- under Section 306 IPC and in default of payment of fine, to undergo rigorous imprisonment for six months; and

(ii) Rigorous imprisonment of two years and a fine of Rs.1,000/- under Section 498A IPC, in default to undergo rigorous imprisonment for three months.

2. The sentences were to run concurrently and the convict was

entitled for the benefit of Section 428 Cr.P.C.

3. Police machinery was set in motion on receipt of information

by ASI Sarita (PW10) from an unknown person that one lady

received burn injuries at CPJ Block No.1/44, New Seelampur, on the

basis of which she recorded DD No.9A dated 04 th March, 1992

Ex.PW 10/A which was assigned to SI Om Prakash (PW-13) for

investigation. SI Om Prakash along with Ct. Kishan Lal went to the

place of incident where he came to know that a woman got burn

injuries and she has been removed to JPN hospital. After leaving Ct.

Kishan Lal at the spot, he went to JPN hospital. In the MLC, the

doctor declared the patient unfit for statement. Sub-Divisional

Magistrate was informed. SI Om Prakash returned back to the spot,

inspected the spot and got it photographed. One stove, one kerosene

oil can of plastic white colour and burnt clothes were found present

which were taken into possession vide Ex. PW 13/A. At about 2.30

a.m., information was received from Duty Constable JPN hospital

regarding death of Smt. Sheela on the basis of which DD entry

Ex.10/C was recorded. SDM completed the inquest proceedings

under Section 176 Cr.P.C and post mortem was got conducted. SDM

recorded the statement of Sh. Mangli, father of the deceased and Smt.

Premwati, mother of the deceased wherein they disclosed that they

got Sheela married with Rupesh Kumar about two years ago.

Whenever Sheela used to come to their house, she used to demand

Rs.2,000/- - Rs.4,000/- and used to inform that she was being

harassed by her in-laws for bringing more money and that in case she

is not able to bring the same, then they will leave her. Sheela used to

be beaten on account of insufficient dowry and she used to be

tortured. Once Rupesh and Brij Devi, mother of Rupesh, came and

demanded Rs.10,000/- for marriage of his sister, Yamuna. Family of

the deceased could not fulfil the demand due to financial constraints

because of which they started torturing her. Ultimately, Sheela was

set on fire by her husband Rupesh, her mother-in-law and her sister-

in-law and they prayed for action against them. One complaint was

also given by brother of the deceased to SDM. SDM ordered

registration of the case. Thereupon FIR was registered. During the

course of investigation, accused Brij Devi and Rupesh were arrested.

After completing investigation, charge-sheet was submitted against

them under Sections 498A/304-B IPC. Charge for offence under

Sections 498A/304B/34 IPC was framed against both the accused to

which they pleaded not guilty and claimed trial.

4. In order to substantiate its case, prosecution examined 16

witnesses. In their statement recorded under Section 313 Cr.P.C, both

the accused pleaded innocence. It was alleged that the relation

between Rupesh and Ajay, brother of the deceased, were inimical.

The deceased caught fire from the stove, which fact finds mention in

the MLC prepared by the doctor. They did not prefer to lead any

defence evidence.

5. Vide impugned order, learned Additional Sessions Judge came

to the conclusion that offence under Section 304-B IPC is not proved

against any of the accused as it could not be proved that "soon before

her death", the deceased was subjected to cruelty or harassment. So

far as Brij Devi is concerned, the allegations qua her were not proved

beyond reasonable doubt. That being so, she was acquitted of both

the charges. However, it was held that there are specific allegations

against accused Rupesh. The unnatural death of the deceased had

taken place within seven years of marriage, as such a case for

abetment to suicide under Section 306 and subjecting her to cruelty

under Section 498A IPC is proved beyond reasonable doubt and

accordingly he was convicted for these offences and sentenced as

stated above. Aggrieved by the aforesaid orders, present appeal has

been preferred.

6. It was submitted by learned counsel for the appellant that on

the basis of same evidence, Brij Devi, mother-in-law of the deceased,

has been acquitted but without appreciating the evidence in the

correct perspective, Rupesh Kumar was convicted only on the basis

of suspicion. When the deceased was taken to hospital, history was

given that she got burn injuries while cooking on stove. The incident

had taken place at about 10 a.m whereas she died during night. Till

her death, there was no allegation of harassment or demand of dowry.

It was only after her death that brother of the deceased went to SDM

and gave an application. Thereafter, statement of parents of the

deceased were recorded and even then the SDM had only ordered

registration of FIR under Section 498A IPC. However, the SHO of

his own, made the endorsement for registration of case under Sections

498A/304 B IPC. Even the FIR was not recorded immediately and

the same was recorded after a great delay on 5th March, 1992 at about

5.15.p.m Reference was made to the testimony of the prosecution

witnesses and it was submitted that the same suffers from

contradiction and material improvements. Moreover, PW-2 Mangli

has even denied that his statement was recorded by SDM and he

denied his thumb impression on statements Ex.PW1/B & Ex.PW1/C.

Witnesses have deposed that prior to the death of deceased, her

brother Mahipal had visited her and informed about the harassment.

However, he has not been examined by the prosecution. Moreover,

as per MLC, the injured was taken to hospital by Reva Ram, although

he was cited as witness but was not examined. The prosecution has

withheld material witnesses, as such adverse inference has to be

drawn against them. It was further submitted that the appellant was

exonerated of the charge under Section 304B IPC as cruelty was not

proved. However, he was convicted under Section 306 IPC but in

order to establish this offence, it was incumbent upon the prosecution

to prove that the deceased committed suicide. However, there is no

material on record to prove the factum of suicide. In fact, it was an

accidental death and even the Investigating Officer of the case

admitted that he came to know that deceased sustained burn injuries

while cooking on stove. Moreover, there are no allegations of

abetment to commit suicide. That being so, no offence under Section

306 IPC is made out. Even the allegations fall short of proving the

essential ingredients of Section 498A IPC, as such appellant is

entitled to be acquitted of both the charges. Reliance was placed on

Wazir Chand and Another v. State of Haryana, (1989) 1 SCC 244;

Baldev Raj v. Chanderprakash & Ors, ILR(2008) I Delhi 313 and

Kantilal Martaji Pandor v. State of Gujarat & Anr, 2013(9) SCALE

560.

7. Per contra, it was submitted by Ms. Fizani Hussain, learned

Additional Public Prosecutor for the State that the statement of

parents of the deceased were recorded by the SDM wherein they

levelled allegations against the accused regarding cruelty and

harassment to her on account of demand of dowry. Thereafter, SDM

wrote two letters, one to SHO for registration of case under Section

498A IPC and another to hospital authorities for conducting post-

mortem of the body of deceased Sheela suspecting foul play.

Thereafter, case under Sections 498A/304-B IPC was registered. It

was further submitted that it was not a case of accidental death

because, had Sheela been burnt by stove the kerosene oil would not

have reached upto her hair which was detected by the doctor who

conducted post mortem examination and also by the forensic expert

when the exhibits were sent to FSL. Moreover, in the kitchen, stove

was found intact. There was no sign that Sheela sustained burn

injuries while working on stove. No adverse inference can be drawn

from non-examination of Reva Ram, inasmuch as, if he was not

examined by the prosecution, the accused could have examined him

in defence. It was submitted that the impugned order does not suffer

from any infirmity which calls for interference, as such appeal is

liable to be dismissed.

8. We have given our anxious thoughts to the respective

submissions of learned counsel for the parties and have perused the

record.

9. In order to substantiate its case, the material witnesses

examined by the prosecution are: father of the deceased PW2 Mangli,

brother of the deceased PW3 Ajay Pal Singh and mother of the

deceased PW4 Premwati.

10. PW2 Mangli has deposed that Sheela, his daughter, was

married to Rupesh Kumar about six years back according to Hindu

rites. Sheela lived happily in her matrimonial house for about one

year. Thereafter, she used to be harassed by her husband Rupesh, his

mother, sister and brother. They used to demand scooter and also

money amounting to Rs.10,000/- and threatened to kill her on her

failure to bring that money. He gave a sum of Rs.3,000/-, Rs.2,000/-

and Rs.1,000/- on three different occasions besides sending wheat to

her daughter. Her daughter used to inform him about the harassment

being caused by her husband and his other family members.

Panchayat was also held and in the proceedings before the Panchyat

Rupesh Kumar and members of his family gave in writing that they

will not harass his daughter any more. His son Mahipal met his

daughter about one month prior to her death. At that time Sheela had

informed Mahipal that she was being harassed and that demand of

Rs.3,000/- is being made. Mahipal, in turn, informed him about this

fact on which he sent him again to the house of his daughter

informing that they will do according to their status in the marriage of

sister of Rupesh. After one month, he came to know that his daughter

has been burnt to death. He went on stating that his daughter was

burnt on account of dowry.

11. PW3 Ajay Pal Singh corroborated the testimony of his father

Mangli by deposing that at the time of marriage of his sister Sheela

with Rupesh in May, 1990, sufficient money was given according to

their status. After one year of the marriage, his sister started making

complaints about harassment caused by her husband-Rupesh, mother-

in-law, sister-in-law and brother-in-law. She also used to complain

that accused persons used to beat her and demanded more and more

money. She also told him that they were demanding Rs.10,000/-

otherwise she would be killed and she will have no place in their

house. Many a times, he tried to patch up the matter. He also gave

cash of Rs.500/- some times to accused Rupesh and sometimes to his

mother. He also gave wheat to the accused persons. The behaviour

of the accused persons remained good for some time after receiving

cash and wheat, but after 2-3 months they again started harassing his

sister by giving beatings to her.

12. On 22nd November, 1991 he went to the house of the accused

persons to meet his sister where he saw that accused persons were

giving beatings to his sister. He lodged DD No. 23 in Police Station

Seelampur. The matter was compromised on 23rd November, 1991.

After the death of his sister, he gave a complaint Ex.PW3/B to SDM

on 5th March, 1992. In regard to some facts, the witness was cross-

examined by learned Additional Public Prosecutor for the State and

he admitted that in his complaint to SDM he had stated that on 18th

November, 1991 his sister Sheela was beaten and on coming to know

about this fact he went to her house and accused told him "Ya To

Paise Do Ya Hum Ise Jaan Se Maarenge" and he brought back his

sister from her matrimonial home on 22nd November, 1991. He also

admitted that on that very day, he lodged a report vide DD No. 23 in

Police Station Seelampur. He stated that thereafter the accused

persons came to his house and after compromise they took her away

to their house. He admitted that Ex.PW3/DA is copy of the

compromise arrived at on that day wherein the accused had agreed

not to harass and beat Sheela in future and that he will be responsible

if he do so again.

13. He also admitted that in the complaint made to SDM he stated

that Sheela was turned out from her matrimonial house after some

days and she was again taken back by the accused on 5th February,

1992; his brother Mahipal Singh had gone to see his sister on 26th

February, 1992 and Sheela informed him that the accused persons

used to beat her and asked her to bring Rs.3,000/- and that her life

was in danger.

14. PW4 Premwati, mother of the deceased, has corroborated the

version given by her husband and son by deposing that Sheela lived

happily in her matrimonial home for one year and thereafter she used

to inform that she was being harassed by her husband, brother-in-law

and sister-in-law. She was not given proper food. She also informed

that the accused person demanded money, anaj, etc. Sometimes she

gave Rs.500/- and sometimes Rs.1000/-. 5-10 days prior to the

incident accused Rupesh and deceased visited their house and

demand of Rs.10,000/- was made for marriage of sister-in-law of the

deceased. However, they could not fulfil the demand. Thereafter,

accused Rupesh and deceased went back and Sheela died after 10-15

days. This witness was also cross-examined by learned Additional

Public Prosecutor and she admitted that she had stated to the

Magistrate that Sheela had informed her that her in-laws threatened

her to expel from matrimonial home if she was unable to bring money

from her parents and that Rupesh, Yamuna and Brij Devi came to her

house for demand of Rs.10,000/- and when they could not fulfil the

demand Sheela used to be harassed. She admitted that her thumb

impression is on her statement Ex.PW1/D. According to her, Sheela

has been killed by her husband Rupesh, Yamuna her sister-in-law,

and Brij Devi her mother-in-law by burning her.

15. As such, parents and brother of the deceased have consistently

deposed regarding harassment caused to Sheela on account of

demand of money.

16. Learned counsel for the appellant submitted that there are some

inconsistencies in the statement of witnesses regarding the precise

nature of the amount demanded, however, the inconsistencies are of

little importance considering the volume of evidence showing that

repeated demands were made for money from Sheela, her parents and

her brother. m that on 22nd November, 1991 Sheela was given

beatings. When PW3 Ajay Pal Singh reached house of Sheela, he

was informed by the accused that in case their demands are not

fulfilled then she will be killed. He went to Police Station

Seelampur, lodged DD No. 23. Thereafter, the matter was

compromised and accused took her back after giving assurance that

such things will not be repeated in future. The factum of compromise

is not disputed by accused. In cross-examination, the accused

produced photocopy of the compromise deed Ex.PW3/DA in order to

show that date is mentioned as 21st November, 1991 and not 23rd

November, 1991. Although there is some variation in the date,

inasmuch as, in compromise Ex.PW3/A date is mentioned as 23rd

November, 1991 whereas in the photocopy Ex. PW3/DA, date is

mentioned as 21st November, 1991. The fact remains that as per this

compromise there is an averment that Ajay Pal Singh had lodged

complaint to the police regarding giving of beatings to his sister

Sheela by her husband. He further went on stating that the matter had

been compromised and he does not want any legal action against him.

Sheela also mentioned that she would come back within 15-20 days

in case Rupesh will come to take her and they will keep her well and

will not beat her. Accused Rupesh also gave assurance that he will

keep his wife properly and in case of harassment he will be

responsible.

17. Under the circumstances, irrespective of the fact whether the

compromise took place on 21st November, 1991 or 23rd November,

1991, the fact remains that as beatings were given by Rupesh Kumar,

DD was lodged by Ajay Pal Singh and, thereafter, the matter was

compromised on the assurance given by Rupesh Kumar. As such,

the physical cruelty meted out to the deceased stands proved.

Furthermore, there is also substantial evidence to show that an

amount of Rs.10,000/- was demanded for the marriage of nanad of

Sheela which her parents and brother were unable to fulfil. Besides

this, there was continuous demand for more money and wheat which

used to be fulfilled by her family members from time to time. As

such, there is no reason to disagree with the conclusion arrived at by

learned Additional Sessions Judge in this connection and therefore

the conviction of the appellant under Section 498A of Indian Penal

Code and sentence imposed upon him is confirmed. The acquittal of

co-accused on same set of evidence does not come in the way of

confirmation of conviction of the appellant inasmuch as, there is

ample evidence available on record qua him. In Bable @ Gurdeep

Singh Vs. State of Chhattisgarh, (2013) 1 SCC (Cri) 417 and Surajit

Sarkar Vs. State of West Bengal, (2013) 2 SCC 146, it was held that

merely because other accused were acquitted, cannot absolve

appellant in view of cogent and reliable evidence appearing against

him.

18. As regards acquittal of accused under Section 304 B IPC is

concerned, at the outset, it may be mentioned that neither the State

nor the Complainant has come in appeal against the order of acquittal.

Moreover, in order to attract this Section, it is incumbent upon the

prosecution to prove:

(i) The accused has committed dowry death of a women;

(ii) The women was subjected to cruelty or harassment by her husband or his relatives.

(iii) Such cruelty or harassment was for or in connection with any demand for dowry.

(iv) Such cruelty or harassment was soon before her death.

19. In dowry death cases and in most of such offences, direct

evidence is hardly available and such cases are normally proved by

circumstantial evidence, as such, this section has to be read with

Section 113B of the Evidence Act which includes the rule of

presumption i.e. if death occurs within seven years of marriage in

suspicious circumstances then the Court shall presume that it is dowry

death. However, before raising this presumption it is obligatory on

the part of the prosecution to establish essential ingredient of Section

304B IPC as referred above. Although, in the instant case, it was

proved that the deceased met with an unnatural death within seven

years of her marriage, inasmuch as, the marriage had taken place in

May, 1990 whereas the date of death of the deceased is 4 th March,

1992, it has also been proved that the deceased was subjected to

cruelty or harassment by her husband, however, the other essential

ingredient was that such cruelty or harassment was "soon before her

death". As per the testimony of all the three material prosecution

witnesses, prior to the death of Sheela, Mahipal, her brother had gone

to meet her and at that time Sheela had informed him that she was

being harassed and that demand of Rs.3,000/- is being made. Ajay

Pal went a step further by deposing that Sheela informed Mahipal that

there was danger to her life and accused persons were greedy of

money. Within few days, Sheela met with an unnatural death. As

such, Mahipal was a material witness in order to prove that "soon

before her death" Sheela was subjected to cruelty and her life was in

danger, but for reasons best known to prosecution Mahipal Singh was

not examined as a witness. Under the circumstances, learned

Additional Sessions Judge acquitted the accused under Section 304B

IPC as prosecution failed to establish one of the essential ingredients.

As stated above, State has not come in appeal, as such, this issue is

not required to be dealt with any further.

20. The only issue that remains to be considered is whether the trial

Court was right in convicting the appellant under Section 306 IPC.

21. We would firstly deal with Section 306 of the Code which

deals with abetment of suicide which reads 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 word „suicide‟ in itself is nowhere defined in the Indian

Penal Code, however, its meaning and import is well known and

requires no explanation. „Sui means „self‟ and „cide‟ means „killing‟,

thus, implying an act of self-killing. In short a person committing

suicide must commit it by himself, irrespective of the means

employed by him in achieving his object of killing himself.

23. Next we will deal with „Abetment of a thing‟ as has been

defined under Section 107 of the Code. We deem it appropriate to

reproduce Section 107 which 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.

24. These sections have to be read with Section 113A of Indian

Evidence Act, 1872. It 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 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. Explanation.-- For the purposes of this section," cruelty" shall have the same meaning as in section 498A of the Indian Penal Code, 1860."

25. Learned counsel for the appellant rightly did not raise any

objection for invoking Section 306 IPC even though no charge under

this Section was framed.

26. In K Prema S. Rao and Anr. v. Yadla Srinivasa Rao and Ors.

JT 2002(8) SC 502 charge was framed for offence under Section

304B IPC and Section 498A IPC. However, Hon‟ble Supreme Court

held even though the charge had been framed under the aforesaid

sections, if the evidence was sufficient, the husband could be

convicted under Section 306 IPC for abetment of suicide of his wife.

The Supreme Court held that the acquittal of the husband of the

offence under Section 304B IPC was correct in the absence of any

demand of dowry but the willful conduct of the husband forcing the

wife to part with her stridhan and for that purpose concealing her

postal mails was so cruel that she was driven to commit suicide and,

therefore, a clear case of conviction under Section 306 IPC was made

out. The Supreme Court also observed that mere omission on the part

of the trial court to mention Section 306 IPC at the time of framing of

charges did not preclude a court from convicting the accused for the

said offence when found proved. It was in the alternate charge framed

under Section 498A IPC, that it had been clearly mentioned that the

accused subjected the deceased to such cruelty and harassment so as

to drive her to commit suicide. The Supreme Court held that the

provisions of Section 221 of the Code of Criminal Procedure, 1973

were sufficient to enable a criminal court to convict an accused for an

offence with which he was not charged, although on facts found in

the evidence, he could have been charged for such offences. The

Court also held in the facts of the case that the omission to frame a

charge under Section 306 IPC had not resulted in any failure of

justice and, therefore, Section 215 of the Code of Criminal Procedure,

1973 permitted the trial to ignore any error committed at the time of

framing of the charge.

27. This view was followed in Baldev Raj v. Chander Prakash

and Ors. ILR (2008) I Delhi 313 relied upon by learned counsel for

the appellant.

28. The crucial question, however, remains as to whether essential

ingredients of Section 306 IPC are proved or not. As observed by

Hon‟ble Supreme Court in Wazir Chand and Anr. v. State of

Haryana (1989) 1 SCC 244, in order that "a person can be convicted

of abetting the suicide of any other person, it must be established that

such other person committed suicide". This view was reiterated in

Baldev Raj (supra) and it was held that commission of suicide is a

pre-condition for invoking the offence of abetment of suicide or for

raising the presumption under Section 113A of the Evidence Act.

29. A perusal of evidence led by the prosecution goes to show that

although it is not in dispute that the death of Sheela was an unnatural

death, but it is nobody‟s case that she committed suicide. Rather, it is

the case of prosecution itself that when Sheela was brought to

hospital, her MLC Ex.PW6/A was prepared by Dr. Seema where it is

recorded:

"alleged history of burns, caught fire from stove".

30. Death summary Ex.PW6/B was prepared by Dr. Rajiv Bhattt

which recorded:

"alleged history of sustaining burn injuries all over the body while working on kerosene stove on 4th March 1992 at 10:00 a.m. as stated by patient herself."

31. As per MLC, Sheela was brought to hospital by Rewa Ram,

however, prosecution has failed to examine this witness, despite the

fact that he was cited as a witness. According to the Investigating

Officer of the case, he did not feel it necessary to record the statement

of Rewa Ram on the day of incident as he was related to accused. He

admitted that accused were resident of CPJ Block No.C-1/44

Seelampur while Reva Ram was resident of CPJ Block No.C-1/55

New Seelampur and except the bare averment that he was relative of

accused, the same has not been substantiated. Even if it is taken that

he was relative of accused, that ipso facto does not raise any

presumption that he would not have revealed the truth. He was a very

crucial witness as, as per the MLC, he brought the deceased to the

hospital and therefore he would have been in a position to throw light

as to how Sheela sustained burn injuries. For non-examination of

this witness, an adverse inference has to be drawn against the

prosecution. The submission of learned APP for the State that even

if, prosecution failed to examine this witness, the accused could have

examined him in defence, has no legs to stand because it is cardinal

principal of criminal jurisprudence that burden of proof is squarely on

prosecution to prove its case beyond reasonable doubt. Even the

prosecution cannot take recourse to Section 113A of the Evidence Act

as it provides that under certain conditions the Court "may presume"

having regard to circumstances of the case that such suicide had been

abetted by her husband or relatives. When the law provides that the

Court "may presume" a fact, it is discretionary on the part of the

Court either to regard such fact as proved or not to do so and it

depends upon all the other circumstances of the case. Moreover,

before invoking this presumption, it has to be established by the

prosecution that Sheela committed suicide. As stated above, it was

nobody‟s case, either of prosecution or accused that it was a case of

suicide. In fact, according to accused, it was a case of accidental

death which finds support from MLC and death summery, however,

parents and brother of the deceased were trying to set up a case that

Sheela was set on fire by her husband and relatives, which was not

even the case of prosecution as the charge sheet itself was not filed

under Section 302 IPC and investigation also did not reveal that

Sheela was set on fire by the accused.

32. Learned APP for the State, however, tried to set up a case of

suicide from post-mortem report ExPW12/A conducted by Dr.Satish

Kumar on the body of the deceased and as per his deposition, on

examination he found following external injuries:

"(i) Dermo epidermal burns present all over the body except soles. Cuticle pealed off at places. Base shows reddening specially over margins. Unpealed areas shows blackening.

(ii) Scalp hair singed and burnt over frontal and both temporal and occipital regions. Kerosene oil like smell appreciated at the time of post-mortem examination. Eye brows, eye lashes, axillary and pubic hair all burnt and singed. Approximate area of burns 98 per cent."

33. There was smell of kerosene oil when post-mortem was

conducted. Scalp hair of the deceased was handed over by the doctor

to the Investigating Officer of the case who seized the same vide

memo Ex.PW13/E. One stove, one kerosene oil cane of plastic white

colour and burnt clothes were taken into possession vide Ex. PW

13/A. Same were sent to FSL and were examined by Sh. N.K.

Prasad, Senior Scientific Officer (PW16) who gave his report

Ex.PW16/A, according to which, scalp hair showed the presence of

kerosene residue. It was submitted that if it had been a case of

accidental death kerosene oil could not have reached scalp hair of the

deceased and the fact that on the scalp hair, kerosene was detected

itself proves that the deceased must have committed suicide. The

submission of learned APP for the State may raise a doubt whether it

was the case of accidental death or Sheela committed suicide by

pouring kerosene oil on herself but it is well established cannon of

criminal jurisprudence that suspicion howsoever grave, cannot take

the place of proof.

34. It is also worth mentioning that after Sheela succumbed to

injuries, Sh. R.K. Mishra, SDM recorded statement of parents of

deceased Ex.PW1/B and PW1/D wherein they gave a detailed

account of harassment to their daughter, constant demand of money

and raised suspicion that accused and his family members must have

killed her. The brother of the deceased Ajay Pal Singh gave a typed

complaint Ex.PW3/B to the SDM narrating these facts. Despite that,

SDM directed SHO to register a case under Section 498A of IPC

only. It seems that initially SHO also directed Duty Officer to

register a case under Section 498A IPC but later on Section 304B IPC

was added. Despite the fact that Sheela sustained burn injuries at

10:00 a.m. on 4th March, 1992 and died at 11:55 p.m. on the same

day, the statement of Mangli, father of the deceased was recorded at

1:08 p.m. and that of Premwati, mother of the deceased, was recorded

at 1:05 p.m. on 5th March, 1992, SDM had sent all the papers to SHO

by 2:00 p.m. yet FIR came to be registered only at 5:15 p.m. The

reason assigned for delay in recording FIR is attributed to "business

of SHO in some other work", which is hard to believe. Absolutely no

satisfactory explanation is given for delay in recording FIR. It has

been emphasised time and again that FIR should be lodged promptly

before there is any chance of manipulation and in case no satisfactory

explanation is forthcoming then the same is shrouded with doubt. In

the instant case, as stated above, absolutely no satisfactory

explanation has been given for delay in registration of FIR.

35. Learned Additional Sessions Judge convicted the appellant

under Section 306 IPC by merely observing that the death has taken

place in suspicious circumstances. Since cruelty stands established,

the circumstances show that deceased was compelled to commit

suicide. No finding has been given that the deceased has committed

suicide or accused abetted commission of the same. Merely because

the deceased was subjected to cruelty, no presumption could be

drawn that she committed suicide, more particularly so, when it was

neither the case of prosecution nor of the accused. In the absence

establishing that Sheela had committed suicide, the finding regarding

Section 306 IPC cannot be sustained. Same is accordingly set aside.

36. The appeal is partly allowed, so far as, conviction under

Section 306 IPC and sentence imposed therein is concerned. The

appeal against conviction under Section 498A IPC is dismissed.

37. The appellant is on bail. He is directed to surrender to police

within seven days and undergo the balance of his sentence, if any, and

also pay the fine imposed on him for conviction under Section 498A,

if not already paid.

38. The appeal stands disposed of accordingly. Trial Court record

be sent back forthwith.

SUNITA GUPTA (JUDGE) SEPTEMBER 25, 2013 as/AK