Vineet Suri vs State
2014 Latest Caselaw 3452 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         CRL.A.27/2007

                                         Reserved on:      15.05.2014
                                         Date of decision: 01.08.2014

IN THE MATTER OF:
VINEET SURI                                                 ..... Appellant
                             Through: Mr. Suman Kapoor, Advocate with
                             Ms. Isha Shah and Mr. Tarun Sharma,
                             Advocates with appellant in person.


                       versus

STATE                                                     .....Respondent
                             Through: Mr. Rajat Katyal, APP for the State


CORAM
HON'BLE MS.JUSTICE HIMA KOHLI


HIMA KOHLI, J.

1. The appellant has assailed the judgment dated 23.12.2006 and the

order on sentence dated 02.01.2007 passed by the learned ASJ in SC

No.38/2006, holding him guilty for the offences punishable under Sections

498A and 306 IPC, while acquitting him of the offences under Sections

302 & 304B read with Section 34 IPC. By the impugned order on

sentence, the appellant has been sentenced to undergo rigorous

imprisonment for a period of three years and pay a fine of `5,000/-, in

default of payment of fine, undergo rigorous imprisonment for six months

for the offence under Section 498A IPC and to undergo rigorous

imprisonment for five years with a fine of `15,000/-, in default of

payment of fine, undergo rigorous imprisonment for a period of nine

months for the offence under Section 306 IPC.

2. Before proceeding to deal with the arguments advanced by the

counsels for the parties, it is necessary to refer to the factual matrix of

the present case, as culled out from the narrative in the impugned

judgment. The deceased, Madhu Bala and the appellant were both

divorcees and had an arranged marriage on 17.11.1993. The family of

the appellant comprised of his mother, Smt. Darshana Suri, brother, Shri

Sumeet Suri and sister-in-law, Smt. Aarti Suri. As per the prosecution

case, the deceased was found dead at her matrimonial home on

19.07.1996, which was within seven years of her marriage and her death

had taken place under unnatural circumstances. The present case came

to be registered on the statement made by Shri Hari Chand Chhabra

(father of the deceased) on 19.07.1996 itself. Initially, charge for the

offence under Section 498A read with Section 34 IPC was framed against

the appellant herein, his mother, brother and sister-in-law and charge for

the offence under Section 304B read with Section 34 IPC and Section 201

IPC was framed against the appellant and his mother. Aggrieved by the

aforesaid order, the deceased‟s mother had filed a revision petition in the

High Court. Vide order dated 09.12.1999, the revision petition was

allowed and it was directed that charge for the offence under Section

302/34 IPC should also be framed against the accused. Resultantly, vide

order dated 11.09.2000, charge for the offence under Section 304B read

with Section 34 IPC and in the alternative, charge for the offence under

Section 302 IPC read with Section 34 IPC was framed against all the four

accused persons. After they had pleaded not guilty and claimed trial, the

prosecution had examined twenty two witnesses to prove its case. The

material witnesses included Praveen Kumar Chhabra and Dalip Kumar

Chhabra, both brothers of the deceased (PW-2 and PW-5), Smt.Anita

Chhabra, sister (PW-4), Smt. Sushila Devi, mother of the deceased (PW-

9), Shri S.N. Sethi and Shri Ajay Sethi, neighbours of the accused (PW-7

and PW-10), Dr.Harpreet Singh Cheema (PW-15), who was called to the

appellant‟s house on 19.7.1996 and on examination, had declared Madhu

Bala dead, Dr. Ashok Jaiswal and Dr.Rajesh Gupta (PW-12 and PW-17),

who had conducted the autopsy of the dead body and SI Dal Chand (PW-

21).

3. In his testimony, Praveen Kumar Chhabra (PW-2), brother of the

deceased had deposed that his sister used to complain that the appellant

herein and the other co-accused used to harass her for bringing

insufficient dowry and on one occasion, she had been sent back to her

parental home on account of insufficient dowry. He had also deposed that

about a month before the demise of Madhu Bala, in the month of May

1996, the accused had shifted their residence to premises No.G-17, Vikas

Puri and at that time, all of them had made demands of new furniture and

a colour television from the deceased. PW-2 had stated that fifteen days

prior to the demise of Madhu Bala, his parents had supplied a new double

bed as demanded by the accused but had failed to provide a mattress,

due to which, his sister was tortured by them.

4. Dalip Kumar Chhabra (PW-5), the other brother of Madhu Bala had

deposed that the appellant had demanded a catering van to enable him to

settle down in his life. He stated that within a month of the marriage, the

accused persons had started demanding a colour television and other

articles from the deceased and once, when Madhu Bala and the appellant

had visited her parental house, their mother had paid a sum of `25,000/-

to the appellant in the presence of Sh. Harish Chand Chhabra (father of

the deceased). He had deposed that the appellant‟s mother used to ask

Madhu Bala‟s family members to arrange money for her son so as to

settle him in life as he wanted to start his own business and two days

prior to her death, their sister (PW-4) had received a telephonic call from

the appellant that he had purchased a shop and had paid the earnest

money but needed money to pay the balance amount of the sale price.

5. In her testimony, Smt. Anita Choudhary (PW-4), Madhu Bala‟s

sister had stated that when the accused had shifted to their house at

Vikas Puri, her father had given him a sum of `10,000/- and provided a

double bed on the demand of the appellant‟s mother. She had also

deposed about the visit of Madhu Bala and the appellant to her parental

home and the fact that at that time, a demand of `25,000/- was raised

and their mother had paid the said amount to the appellant. She stated

that two days prior to her death, the deceased had telephonically

informed her that the appellant had purchased a shop in Vikas Puri for a

sum of `7 lacs and paid only a sum of `10,000/- towards the earnest

money and further, that the appellant had asked her to bring the balance

amount from her parents. As per PW-4, at the time of Madhu Bala‟s

marriage, they were told that the appellant and his brother were carrying

on joint business but after their marriage, the co-accused, Sumeet Suri

had separated from the appellant in business and thereafter the appellant

had started demanding money from his in-laws to establish his own

business. PW-4 had stated that the appellant had told Madhu Bala that

she should bring money from her parents to purchase a catering van for

him and such a demand was also raised before her parents, but they were

not in a position to fulfill it.

6. Smt. Darshana Suri, mother of the deceased (PW-9) had testified

that prior to her deposing in the Court, her statement had been recorded

before Shri K.K. Dahiya, SDM (PW-13), who had visited the spot on

20.07.1996. The very same SDM had conducted the inquest proceedings

on the dead body, recorded the statement of the parents of the deceased,

got the case registered and had the dead body of the deceased subjected

to an autopsy. The statement of Smt. Darshna Suri made before the SDM

marked as Ex.PW-9/DA, was duly proved on record by PW-13. In her

statement made before the SDM, PW-9 had stated that at the time of

Madhu Bala‟s marriage, there was no demand of dowry made by the

accused, but later on they used to harass her and taunt her for bringing

very little dowry.

7. In her testimony recorded in the Court after six years, PW-9 had

reiterated that all the accused persons used to make demands of dowry

on her daughter after her marriage. She claimed that the accused had

demanded a colour television set but they were not in a position to fulfill

the said demand and one and a half month prior to her daughter‟s death,

a sum of `10,000/- and a double bed were delivered at the new residence

of the accused at Vikas Puri. She had also deposed that the accused had

demanded furniture for their new house and when the appellant and

Madhu Bala had visited her parental house, he had demanded a sum of

`25,000/- from his in-laws for business purposes, and she and her

husband had paid the said amount to the appellant.

8. Shri S.N. Sethi and Shri Ajay Sethi (PW-7 and PW-10, uncle and

nephew respectively) were produced by the prosecution, being next door

neighbours of the appellant. PW-7 who had telephonically informed the

police at 100 number and the parents of Madhu Bala about her death, had

deposed that the accused persons who had shifted in the neighbourhood

about two months earlier, did not have a telephone connection at their

house and they used to visit his house to make or to attend to telephone

calls. He had stated that he had never seen the deceased coming to his

house to attend to telephone calls either from her parents, or from any

other family member. He stated that as Dr. Cheema (PW-4) had observed

ligature marks on the neck of the deceased, he along with Mr. Anand,

President of the RWA of the area, had gone to the bathroom of the

appellant‟s house, on the ground floor, but they did not find any rope or

anything else there. In his cross-examination, he had stated that the

other co-accused, Sumeet Suri and his wife, Aarti Suri (brother and

sister-in-law of the deceased) were residing on the first floor of premises

bearing No.G-17, Vikas Puri, whereas the mother, Smt.Darshana Suri was

living separately on the second floor. The appellant and the deceased

used to reside on the ground floor. The testimony of Shri Ajay Sethi

(PW-10) was also on the same lines.

9. Dr. Harpreet Singh Cheema (PW-15) had testified that in the year

1996, on being informed that the deceased was serious and it was an

emergency case, he had accompanied a gentleman to the appellant‟s

residence and on reaching the bedroom situated on the ground floor of

their residence, he had found a lady lying on the bed and on examining

her, he had declared that she had already expired. He also deposed that

there were minor injuries all over the body of the deceased, in addition to

bruises on both her hands and neck.

10. Dr. Ashok Jaiswal (PW-12), C.M.O., Mortuary, Subzimandi, was

produced by the prosecution to establish the medical evidence. The said

witness alongwith Dr. Rajesh Gupta (PW-17), C.M.O., Mortuary, Civil

Hospital, Delhi, had performed the post mortem on the body of the

deceased and they had proved the autopsy report of the deceased

(Ex.PW-12/A).

11. SI Dal Chand (PW-21) had deposed about the recovery of a rope

(Ex.P1) from the bathroom on the ground floor of the residential premises

of the appellant as also the seizure memo, Ex.PW-21/C. He had testified

that he had visited Police Station: Vikas Puri on 19.07.1996, the date on

which DD No.2A was received and alongwith another constable, had

reached the spot to find the dead body of Madhu Bala lying on the bed in

a room on the ground floor of the said house. He had observed a ligature

mark on the neck of Madhu Bala. Shri Harish Chand Chhabra, father of

the deceased had made a statement on the spot (Ex.PW-3/B) and

alongwith the said statement duly endorsed by him, PW-21 had sent a

Rukka to the Police Station, whereafter, senior police officers had reached

the spot. PW-21 had called for the photographer to take photographs of

the dead body and the place of occurrence, informed the SDM, Punjabi

Bagh about the occurrence and got all the accused, who were arrested,

medically examined. He deposed that during investigation, he had seized

a rope from the bathroom of the residential premises of the house, where

the dead body was found, vide recovery memo (Ex.PW-21/C) that bears

his signatures and the said rope was enclosed in a parcel and duly sealed.

In the course of his deposition, the said article was produced, seal opened

and a rope taken out, which was identified by the witness as Ex.P1.

12. After conclusion of the prosecution evidence, the accused persons

were examined under Section 313 Cr.PC. While admitting the factum of

the marriage of Madhu Bala with the appellant herein, they had denied all

the other incriminating evidence that had emerged in the course of the

evidence produced by the prosecution. On their part, the accused had

examined five witnesses, including DW-1, Praveen Singh, a clerk from

Canara Bank, who had deposed that two FDRs of `75,000/- each were

issued on 25.06.1996 in the names of the appellant‟s mother, Smt.

Sudarshana Suri and the other son, Sumeet Suri (Ex.DW-1/A and B). DW-

2, Shri Ashok Kumar Kapoor, father of Smt. Aarti Suri and father-in-law of

Shri Sumeet Suri (co-accused), had deposed that at the time of the

marriage of his daughter, Aarti with Sumeet Suri, when he had asked the

parents of Sumeet Suri if they had any demand of dowry, they had stated

that they did not need anything and he had not given any dowry articles.

He had also stated that even after his daughter‟s marriage, no demand of

dowry was made by Sumeet Suri or his family members. He had further

stated that the father of the deceased had never complained to him about

the conduct of the appellant or the other co-accused or made a grievance

that any dowry had been demanded by them.

13. DW-3, Mr. Inderjit Kumar Singh from Citibank, had proved the joint

savings account of the appellant and his mother, Ex.DW-3/A. DW-4,

Mr.Madan Lal, Manager of Canara Bank, had deposed about the

encashment of an FDR dated 05.07.1996 of `75,000/- in the name of the

appellant and his mother vide receipt Ex.DW-4/B and another FDR dated

05.07.1996 for `75,000/- encashed vide receipt, marked as Ex.DW-4/D.

14. The appellant had stepped into the witness box as his own witness

as DW-6. The relevant extract of his testimony is reproduced hereinbelow

for ready reference:-

"4-5 days prior to 18.07.96, my relations with my wife were not cordial because I was not devoting sufficient time. On 18.07.96, in the morning, I promised her to return home well in time either to a theatre or a restaurant but I could not fulfill the promise because of damage to the property at my office, I could reach my home at 11 p.m. as a result, my wife started quarrelling with me. She started abusing in the loud voice. I requested her not to shout but in vain. I tried to pacify her putting forth that I was suffering from headache because she was shouting but in vain. Ultimately, I slapped her, dragged her and gave her punches, as a result whereof, she suffered minor injuries. It so happened in between 12 and 1 am. Thereafter, I pacified her and we dined together. We slept at about 3 a.m.

In the following morning, at about 10:15 a.m., my mother knocked at the door and enquired from me as if I was not to go to my office. I apprised my mother of my late arrival during the previous night. I got up and found Madhu missing. I then entered the bathroom of my portion and found that her dead body was hanging there. I cried and also called my mother, brother Sumit and sister-in-law Aarti. I removed the dead body from the bathroom. Then I asked my brother Sumit Suri to bring a doctor. I also asked my sister-in-law to go to the house of Mr. Sethi, our neighbor to inform the police and my in-laws. Sh. Sethi and Dr. Cheema came to our house. My in-laws also reached there. Police also reached my house. All of us were arrested at the instance of my in-laws and taken to police station."

15. At the time of his examination under Section 313 Cr.PC, the

appellant herein had stated as below:-

"After the marriage I and my wife went to Shimla for honeymoon and we were living very happy marriage life. I was serving in a Distillery store. I use to visit my office at about 10 am and come back at about 10/10:30 p.m. Because of busy schedule of my job I could not spare my time for my wife. I never raised any demand of dowry.

On 18.07.96 I promised my wife in the morning that we shall go together either to a restaurant or cinema at night. However, I could reach my house at about 11/11:30 p.m. because of some damage of articles in the godown where I was serving as Godown Incharge. My wife felt it and got angry which led to verbal wrangle and ultimately beating by each other. In that process my wife suffered some injuries at my hands on account fist and kick blows. I made her to understand to maintain peace as we have recently shifted to G-17. I ultimately succeeded in prevailing upon her and at about 1.30 night we dined together and slept at about 3 a.m. My mother knocked at the door at about 10/10:30 a.m. and enquired from me as to whether I was not to go to office. At that time, I found that my wife was missing from the room. On reaching the bathroom, I found that she had hanged herself there. I raised noise attracting other members of the family.

Prior to this incident, we were having a factory in an area of 650 sq. yards in Mayapuri. We sold that factory for a sum of Rs.72 lacs in February 1996 after the death of my father. With that money we purchased this house for Rs.48 lacs. We spent Rs.4/5 lacs for its renovation. There are three floors in this house. I was putting up on the ground floor with my wife. Sumit, my brother and his wife was putting up at 1st floor and my mother was living on the second floor. All the floors were fully furnished having all luxurious articles like TV AC Refrigerators. My mother had got issued FDR in my name and of my brother for a

sum of Rs.75,000/- each. My mother got issued FDR in her own name also for Rs.1.50 lacs.

I have one Fiat car and a scooter. My brother Sumit Suri was having one Volvo car. He has sold it. He was also having a scooter."

16. After taking into consideration the arguments advanced by the

counsels for the parties and examining the ocular and documentary

evidence produced by both sides, the Sessions court had arrived at the

conclusion that the prosecution had failed to substantiate the allegations

of demand of dowry by any of the accused prior to the marriage, at the

time of marriage, after the marriage or soon before the death of Madhu

Bala that could amount to cruelty or harassment to her, and therefore,

charge for the offence under Section 304B read with Section 34 IPC could

not be established against the accused. As for the prosecution case that

the deceased had been murdered, the court held that from the material

available on the record, the prosecution had failed to establish the

presence of the co-accused, Darshana Suri (mother), Sumeet Suri

(brother) and Aarti Suri (sister-in-law) or attribute any role to them on

the date of the incident that had taken place on the night intervening

18/19.07.1996, on the ground floor portion of the house, where the

appellant and the deceased were residing together. Further, the Sessions

court came to the conclusion that the prosecution was unable to lead

cogent and convincing evidence to establish that the appellant had

murdered his wife, but was of the opinion that the role played by him in

the night intervening 18/19.07.1996 falls within part (a) of the

explanation appended to Section 498A IPC as he had treated his wife with

cruelty and abetted the commission of suicide by her. Consequently, the

appellant was held guilty for the offence punishable under Sections 498A

and 306 IPC. At the same time, the other co-accused were acquitted of

all the charges framed against them. Aggrieved by the aforesaid

judgment and order of conviction, the appellant has preferred the present

appeal.

17. The main thrust of the argument advanced by Mr. Suman Kapoor,

learned counsel for the appellant was that the Sessions court had

committed a grave error in holding the appellant guilty of the offence

under Sections 498A and 306 IPC for the reason that for arriving at the

said conclusion, it had solely relied upon the statement of the appellant,

as recorded under Section 313 Cr.PC and reproduced in para 104 of the

impugned judgment. He urged that in order to invoke the provision of

the Explanation (a) appended to Section 498A, the act of the appellant

ought to have been a willful conduct of such a nature as was likely to

have driven the deceased to commit suicide, and in the facts of the

present case, it could not be said that his conduct of causing injuries on

the body of the deceased, would fall under Explanation (a). Learned

counsel had sought to explain that whatever had happened between the

appellant and Madhu Bala on the fateful night was a spontaneous act that

had taken place at the spur of the moment and in the altercation between

husband and wife, the appellant had caused simple injuries to the

deceased. He therefore urged that it could not be said that the said

injuries were caused to drive Madhu Bala to commit suicide. He further

argued that there is no evidence on the record or any finding returned by

the trial court that could establish that prior to the date of the incident,

the appellant had treated the deceased with cruelty and resultantly, he

could not have been convicted under Section 498A IPC solely on the basis

of his own statement as recorded under Section 313 Cr.PC.

18. As regards the conviction of the appellant under Section 306 IPC,

learned counsel for the appellant had argued that no opportunity was

afforded to the appellant to discharge the burden of proving that he was

not guilty of the said offence, particularly since neither was the charge

amended to include the offence under Section 306 IPC, nor was the

appellant confronted with the ingredients of the said offence when his

statement was being recorded under Section 313 Cr.PC, thus causing

grave prejudice to his defence before the Sessions court. It was

canvassed that even otherwise, there was no evidence brought on record

to attribute any mens rea to the appellant or to establish that he had

instigated/abetted the deceased to commit suicide. To drive home the

said arguments, learned counsel had relied upon the following decisions:-

(i) Changala Jaya Sankara Rao vs. State of A.P.; 1996 (1) ALT (Crl.) 560

(ii) Indrasing M. Raol vs. State of Gujarat; (1999) 3 GLR 654

(iii) Sanju alias Sanjay Singh Sengar vs.State of M.P.; 2002 SCC (Crl.) 1141

(iv) Neeraj Gupta vs. State; 2006 (3) JCC 1221

(v) Amalendu Pal alias Jhantu vs. State of West Bengal; (2010) 1 SCC 707

(vi) Narender Singh Arora vs. State; 173 (2010) DLT 244

19. Per contra, Mr. Rajat Katyal, learned APP for the State strenuously

defended the impugned judgment and the order of conviction and

rebutted the arguments advanced by the learned counsel for the

appellant. He had submitted that contrary to the stand taken by the other

side that only a single incident of provocation could not be treated as a

ground to indict the appellant, in the present case, there was a history of

dowry demands made by the appellant and his family members on the

deceased and the last straw was the incident that had occurred on the

night intervening 18/19.07.1996, when the appellant had seriously

assaulted the deceased and as per the autopsy report(Ex.PW-12/A), it

had resulted in causing seventeen injuries, including one ligature mark on

her body. He had argued that the circumstances reveal that it was after

suffering such severe beatings at the hands of the appellant, the

deceased was provoked into committing suicide. He argued that nothing

has emerged from the evidence to rebut the presumption that the

deceased was provoked into committing suicide upon the appellant

causing sixteen injuries on her body and under Section 113A of the Indian

Evidence Act, the onus to shake off the said presumption had remained

on the appellant, which he had failed to discharge except for making a

bald and a very implausible statement that he had no knowledge of the

injuries suffered by the deceased.

20. Learned APP had further contended that a perusal of the appellant‟s

statement recorded under Section 313 Cr.PC would demonstrate that his

claim that after he and Madhu Bala had a fight, they had sat down to

dinner and then gone to sleep at 3:00 AM, could not be corroborated by

the medical evidence that reveals that the rectum of the deceased was

found empty at the time of her post mortem. In support of the said

submission, learned APP had referred to the deposition of Dr. Ashok

Jaiswal(PW-12). He had argued that the evidence produced by the

prosecution clearly reveals that repeated dowry demands had been made

by the appellant and his family members on Madhu Bala, which would be

borne out from the testimony of Smt.Darshana Suri (PW-9) and merely

because she had not narrated specific instances of the demands made by

the accused when her statement was recorded before the SDM (Ex.PW-

9/DA), could not be a ground to ignore her entire deposition. Learned

APP urged that the Sessions court ought to have been mindful of the fact

that PW-9‟s statement was being recorded before the SDM one day after

her daughter was found dead at her matrimonial home under unnatural

circumstances and as a mother, she would have been overcome with

grief. Therefore, she could not be expected to have provided details of the

date, time etc. of the dowry demands made by the appellant and his

family members on earlier occasions.

21. Learned APP had also pointed out that the subject FIR was got

registered at the instance of Madhu Bala‟s father, who had unfortunately

expired during the pendency of the trial and could not enter the witness

box, but in his statement, he too had referred to the dowry demands

made by the appellant on Madhu Bala and her family members. The

attention of the Court was particularly drawn to those parts of the

testimony of the other family members of the deceased that referred to

the appellant and the deceased having shifted to their new house at Vikas

Puri one and a half month prior to the date of the unfortunate incident, to

urge that specific dowry demands had been made by the accused at that

point in time. It was thus contended by the learned APP that although the

Sessions Court had convicted the appellant under Explanation (a) of

Section 498A IPC, the evidence on record would establish that

Explanation (b) is also attracted to the facts of the present case. To rebut

the argument of the counsel for the appellant that one incident of cruelty

was in itself insufficient to have indicted the appellant for the offence

under Sections 306 and 498A IPC, learned APP had referred to a decision

of the Supreme Court in the case of Vajresh Venkatray Anvekar vs. State

of Karnataka reported as (2013) 3 SCC 462.

22. In his rebuttal arguments, learned counsel for the appellant had

disputed the submission made by the learned APP that the appellant had

falsely deposed that after he and the deceased had a serious altercation

on the fatal night, they had sat down to dinner and then gone to sleep.

He sought to explain the findings returned in the autopsy report to the

effect that autopsy of the body of Madhu Bala had revealed that her

rectum was empty, by submitting that when the evidence on this aspect

is correlated with the sequence of events on the fateful night, it would

reveal that her death had taken place on 19.07.1996 at about 8:30 AM,

whereas the post mortem on her dead body was conducted on the

following day at 2:30 PM. Thus there was a gap of about 30 hours

between the two events and keeping a margin of two hours on either

side, at best, her death could have occurred between 6:30 AM and 10:30

AM. He stated that if calculated backwards, it would emerge that the

appellant and the deceased had gone to sleep at about 3 AM and

ordinarily, after food is consumed, it takes 3-4 hours for it to get digested

and hence there was nothing unusual in the observation made in the post

mortem report that the rectum of the deceased was empty at the time of

the autopsy.

23. Learned counsel for the appellant had stressed that for the

aforesaid reason, the appellant‟s statement as recorded under Section

313 Cr.PC about he and the deceased having taken dinner before going to

sleep at 3:00 AM, could not be discarded merely because the medical

evidence indicated that Madhu Bala‟s rectum was empty. It was further

argued on behalf of the appellant that even the prosecution witnesses had

deposed that the relationship between the appellant and his family and

the deceased was cordial and therefore, the fact that the appellant had

given beatings to the deceased on the fateful night ought to have been

treated as an isolated incident and could not be taken as a ground for

holding him guilty of having abetted Madhu Bala to have committed

suicide under Section 306 IPC.

24. The Court has perused the impugned judgment, examined the trial

court record and carefully considered the arguments advanced by learned

counsels for the parties.

25. The first argument advanced on behalf of the appellant was that the

trial court had gravely erred in convicting the appellant under Section 306

IPC as he had not been charged for the said offence and nor was he

confronted with the ingredients of the said offence before the Sessions

court. The said issue is no longer res integra and has been dealt with

extensively by the Supreme Court in the case of Dalbir Singh vs. State of

UP reported as AIR 2004 SC 1990. In the aforesaid case, the question

that had engaged the Court was whether in a given case, it is possible to

convict the accused under Section 306 IPC, if a charge for the said

offence had not been framed against him. In brief, the relevant facts of

the said case were that the accused therein had been charged under

Section 302 IPC for having committed the murder of his wife and two

daughters. He was further charged under Section 304B IPC for causing

the death of his wife and under Section 498-A IPC, for subjecting her to

cruelty. After the trial, the Sessions court had convicted the accused

under Section 498A IPC, but it had acquitted him under Section 304B IPC.

In the appeal preferred by the appellant, the High Court came to the

conclusion that the charge under Section 302 IPC was not established and

it had acquitted the accused for the said offence. However, after

concluding that the accused was guilty under Section 306 IPC, for having

abetted commission of suicide by his wife, the court was of the opinion

that the accused could not be convicted for the said offence, in view of

the fact that no charge had been framed against him under Section 306

IPC. For arriving at the said conclusion, the High Court had relied upon

an earlier decision of the Supreme Court in the case of Sangarabonia

Sreenu vs. State of A.P. reported as 1997 (5) SCC 348.

26. In appeal, the question that arose before the Supreme Court was

that if the accused had been charged under Section 302 IPC and the said

charge had not been established by evidence, having regard to Section

222 of the Cr.PC, would it be possible to convict him under Section 306

IPC. The observations made by the Supreme Court on this aspect are

apposite and are reproduced hereinbelow:-

"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 deals 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 reported as 1994 Supp (1) SCC

173, though Section 464 Cr.P.C. has not been specifically referred to but the Court altered the conviction from 302 to 306 IPC having regard to the principles underlying in the said Section. In Sangaraboina Sreenu (supra) the Court completely ignored to consider the provisions of Section 464 Cr.P.C. and keeping in view Section 222 Cr.P.C. alone, the conviction of the appellant therein under Section 306 IPC was set aside."

27. In the case of Dalbir Singh (supra), reference was also made to an

earlier decision of the Supreme Court in the case of Willie Slaney vs. State

of Madhya Pradesh reported as AIR 1956 SC 116, where a Constitution

Bench had examined the question of absence of charge. After analysing

the provisions of Sections 225, 232, 535, 537 of the Criminal Procedure

Code, 1908 that correspond to Sections 215, 464(2), 464 and 465 of the

1973 Code, it was observed that courts have to administer justice and

justice includes the punishment of guilt just as much as the protection of

innocence. It was further observed that every reasonable presumption

must be made in favour of an accused person and he must be given the

benefit of every reasonable doubt and that the same broad principles of

justice and fair play must be kept in mind while determining a matter of

prejudice, as in adjudging guilt. So the Court‟s primary concern must be

to satisfy itself as to whether the accused had a fair trial, whether he

knew what he was being tried for, whether the main facts sought to be

established against him were explained to him fairly and clearly and

whether he was given a full and fair chance to defend himself. Taking a

cue from the aforesaid decisions, in the case of Dalbir Singh (supra), the

Supreme Court concluded as below:-

"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."

28. In the case of K.Prema S.Rao and Anr. Vs. Yadla Srinivasa Rao and

Ors. reported as AIR 2003 SC 11, the Supreme Court made the

following pertinent observations :

"22. Mere omission or defect in framing charge does not disable the Criminal Court from convicting the accused for the offence which is found to have been proved on the evidence on record. The Code of Criminal procedure has ample provisions to meet a situation like the one before us. From the Statement of Charge framed under Section 304B and in the alternative Section 498A, IPC (as quoted above) it is clear that all facts and ingredients for framing charge for offence under Section 306, IPC existed in the case. The mere omission on the part of the trial Judge to mention of Section 306, IPC with 498A, IPC does

not preclude the Court from convicting the accused for the said offence when found proved. In the alternate charge framed under Section 498A of IPC, it has been clearly mentioned that the accused subjected the deceased to such cruelty and harassment as to drive her to commit suicide. The provisions of Section 221 of Cr.P.C. take care of such a situation and safeguard the powers of the criminal court to convict an accused for an offence with which he is not charged although on facts found in evidence, he could have been charged for such offence. Section 221 of Cr.P.C. needs reproduction:-

221. Where it is doubtful what offence has been committed. - (1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.

(2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of Sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it.

23. The provision of Sub-section (2) of Section 221 read with Sub-section (1) of the said Section can be taken aid of in convicting and sentencing the accused No. 1 of offence of abetment of suicide under Section 306 of IPC along with or instead of Section 498A of IPC.

24. Section 215 allows criminal court to ignore any error in stating either the offence or the particulars required to be stated in the charge, if the accused was not, in fact, misled by such error or omission in framing the charge and it has not occasioned a failure of justice. See Section 215 of Cr.P.C. which reads:-

215. Effect of errors - No error in stating either the offence or the particulars required to be stated in the

charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice.

25. As provided in Section 215 of Cr.P.C. omission to frame charge under Section 306 IPC has not resulted in any failure of justice. We find no necessity to remit the matter to the trial court for framing charge under Section 306 IPC and direct a retrial for that charge. The accused cannot legitimately complain of any want of opportunity to defend the charge under Section 306, IPC and a consequent failure of justice. The same facts found in evidence, which justify conviction of the appellant under Section 498A for cruel treatment of his wife, make out a case against him under Section 306, IPC of having abetted commission of suicide by the wife. The appellant was charged for an offence of higher degree causing "dowry death" under Section 304B which is punishable with minimum sentence of seven years rigorous imprisonment and maximum for life. Presumption under Section 113A of the Evidence Act could also be raised against him on same facts constituting offence of cruelty under Section 498A, IPC. No further opportunity of defence is required to be granted to the appellant when he had ample opportunity to meet the charge under Section 498A, IPC.

26. It may be mentioned that against confirmation of his conviction by the High Court under Section 498A, IPC, the accused No. 1 has not preferred any special leave to appeal to this Court. The facts found proved for his conviction and sentence under Section 498A, IPC, cannot now be questioned by the accused. Our conclusion, therefore, is that same facts and evidence on which accused No. 1 was charged under Section 498A and Section 304B, the accused can be convicted and sentenced under Section 306, IPC. We find no legal or procedural impediment in doing so." (emphasis added)

29. In the instant case, records reveal that the appellant was duly

confronted with the offence for which he was charged and was given

ample opportunity of a fair trial. He was well aware of what he was being

tried for. The offences for which he was charged were grave in nature,

namely, Section 302 IPC and 304B IPC. Section 302 prescribes the

punishment of death or imprisonment for life, for the commission of the

offence of murder and Section 304B IPC that deals with the offence of

dowry death, prescribes the minimum punishment of seven years that

may extend to imprisonment for life. As against the aforesaid offences of

a higher degree, Section 306 IPC prescribes the punishment of

imprisonment that may extend to ten years with fine for an offence of

abetment to suicide and is therefore an offence of a relatively lesser

degree. The appellant was made aware of the basic ingredients of the

offence for which he was being tried; he was also aware of the facts of

the case sought to be established against him by the prosecution. He had

been given a fair chance to defend himself and in that context, his own

deposition as DW-6 and his statement recorded under Section 313 Cr.PC

gain significance. Therefore, it cannot be urged that any prejudice had

been caused to the appellant merely because an irregularity had crept in

at the time of framing of the charge. Nor is it a case where failure of

justice has been occasioned, in validating the conviction of the appellant

under Section 306 IPC.

30. Coming to the offence of Section 306 IPC, for which the appellant

has been inculpated, the said Section prescribes that if any person

commits suicide, whoever abets the commission of such suicide, shall be

liable to be punished. The ingredients of abetment are set out in Section

107 IPC, 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.

Explanation 1 - A person who, by willful misrepresentation, or by willful 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."

31. In the present case, the Sessions Court has relied on Section 113A

of the Evidence Act to conclude that the appellant had willfully abetted

Madhu Bala into committing suicide. Section 113A of the 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 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."

32. The aforesaid provision was introduced by the Criminal Law (Second

Amendment) Act, 1983 on 26.12.1983 to meet the demand faced by our

society for overcoming the difficulty of finding any proof in cases, where

helpless married women were being forced to commit suicide by their

husband or in-laws and the incriminating evidence that could only be

available within the four walls of the matrimonial home, remained beyond

public gaze and shrouded in secrecy. In such cases, direct and

independent evidence is inevitably hard to come by. For attracting the

provision of Section 113A of the Evidence Act, it must be demonstrated

that (i) the woman has committed suicide, (ii) the suicide has been

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

(iii) the husband or his relatives, who are charged, had subjected her to

cruelty. Only on the existence and availability of the aforesaid

circumstances, may the Court presume that such a suicide has been

abetted by her husband or such relatives of her husband. The following

observations made by the Supreme Court in the case of Ramesh Kumar

vs. State of Chhattisgarh reported as 2001(9)SCC 618 may be usefully

extracted hereinbelow:-

"12. ...... A bare reading of Section 113A shows that to attract applicability of Section 113A, it must be shown that (i) the woman has committed suicide, (ii) such suicide has been committed within a period of seven

years from the date of her marriage, (iii) the husband or his relatives, who are charged had subjected her to cruelty. On existence and availability of the abovesaid circumstances, the Court may presume that such suicide had been abetted by her husband or by such relatives of her husband. Parliament has chosen to sound a note of caution. Firstly, the presumption is not mandatory; it is only permissive as the employment of expression "may presume" suggests. Secondly, the existence and availability of the abovesaid three circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be drawn the Court shall have to have regard to "all the other circumstances of the case". A consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the Court to abstain from drawing the presumption. The expression - "The other circumstances of the case" used in Section 113A suggests the need to reach a cause-and-effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least, the presumption is not an irrebuttable one. In spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. The phrase "May presume" used in Section 113A is defined in Section 4 of the Evidence Act, which says- "whenever it is provided by this Act that Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved or may call for proof of it"." (emphasis added)

33. Here, the deceased had died in abnormal circumstances in her

matrimonial home and her death had taken place within seven years of

her marriage. Therefore, the presumption under Section 113A of the

Evidence Act springs into action and the present case has to be decided

with reference to the first clause of Section 107 IPC, i.e., whether the

appellant had abetted Madhu Bala to commit suicide by instigating her to

do so. For coming to any conclusion in this regard, the events that had

occurred on the fatal day are very material. The trial court record reveals

that there was enough material available on the record to demonstrate

the conduct of the appellant in abetting the suicide of Madhu Bala by

instigating her and the said evidence is that of the appellant himself, who

had stepped into the witness box as his own witness as DW-6 and had

deposed that a quarrel had taken place between him and Madhu Bala on

the night of 18.07.1996 and when she had shouted at him, he had

slapped her, dragged her and had given her punches that had resulted in

her suffering injuries that he chose to describe as "minor". In the morning

of 19.7.1996, Madhu Bala was found dead at her matrimonial home, in

unnatural circumstance.

34. This is followed by the appellant‟s statement recorded by the

Sessions Court under Section 313 Cr.PC. The appellant‟s version remained

the same, that on 18.07.1996, he had promised his wife in the morning

that they would go out in the evening, but he could not reach his

residence till late in the night due to some pre-occupation at work and

when he had reached his home at 11:00/11:30 PM, she was angry and

that had led to a verbal duel between the parties and he had physically

assaulted her by giving her punches, fist and kick blows. The appellant

went on to state that thereafter he was able make peace with his wife and

they had dined together at 1:30 AM in the night, whereafter they had

gone to sleep at 3 AM.

35. Apart from the aforesaid deposition and statement of the appellant

recorded under Section 313 Cr.PC that have been taken into consideration

in the impugned judgment for holding him guilty for the offence under

Section 306 IPC by drawing a presumption that he had willfully abetted

the commission of suicide by Madhu Bala, the other evidence produced by

the prosecution is the medical evidence that is important to establish the

cause and effect relationship as suggested in Section 113A of the

Evidence Act. As noted above, Section 113A refers to "all other

circumstances of the case" that the Court shall have regard to for

strengthening such a presumption against the accused. It may be noted

from the autopsy report (Ex.PW-12/A) that Dr. Ashok Jaiswal (PW-12)

and Dr. Rajesh Gupta (PW-17) who had performed the post mortem, had

found the following injuries on the body of the deceased :-

"1. Abrasion ¼" x ¼", ½" x ¼" on back and outer aspect of left elbow joint with dried up blood.

2. Bruise ¾" x ½" on left forearm back and outer aspect. 1" below elbow joint light blueish in colour.

3. Irregular defused bruise pinkish blueish of size 1¾" x 1" on medial (inner) side of left arm middle portion.

4. Linear scratch obliquely placed on left forearm ventral aspect, 3 cm long, seen on lower third portion of forearm.

5. Tiny abrasions three in number with sizes 2 to 3 mm on back of right wrist.

6. Three bruises light blue in colour placed below left knee, over upper and middle third of anterior aspect of left leg, having defused border of sizes 1" x ½", ½" x ½" and ½" x ½".

7. Abrasion with dried up blood on back and outer aspect of left feet ¼" x ¼".

8. Light blueish bruises two in number on anterior aspect of right thigh lower third with difused border of sizes 1 cm x 5cm, 1.5 cm x 1 cm.

9. Blueish bruise on Medial size of right knee ¾" x ½".

10. Blueish bruise on right leg anteriorly 1.5 cm x 1 cm placed below knee joint.

11. Blueish bruise 2 cm x 1.5 cm on posterior aspect of middle of right leg.

12. Abrasion with dried up blood on right foot ½" x ¼".

13. Abrasion 3 mm x 3 mm on left Mandibular region just above its middle part with dried up blood.

14. Cresentric abrasions placed 2 cm below lower lip left side of 3 mm and 6 mm (two in number).

15. Light blue bruise 1" x ½" on outer aspect of left eye.

16. Two pin point abrasion behind left ear with abrasion left ear lobule 3 mm to 4 mm.

17. There was a ligature presence abrasion mark seen in front of neck over thyroid prominence in midline with width of 1.5 cm brown in colour from hair to definate layers of ligature pressure abrasion marks were seen on either side of neck with slight grooving in raised margins. Of the two ligature pressure abrasion marks on left side one leaf of it was seen going obliquely upward placed 5 cm below angle of mandible to anterior end of posterior hairline. It is light brown in colour width 0.5 cm. The second lower leaf was found running horizontally 7 cm below angle of mandible to back of neck below hairline. It is light brown in colour with a width 0.5 cm. No bruising of margin seen.

On right side neck upper limb of ligature abrasion mark was light brown and was seen running obliquely upward placed 5 cm below angle of mandible to side of anterior end of posterior hairline.

The lower second layer were seen almost horizontally placed 6 cm below angle of mandible to back of neck meeting with the horizontal loop from the left side. The skin at the junction of two limbs on left side anteriorly was abraded. No ligature material found around neck nor on the body. No other external injury seen on the body."

36. The doctors had opined that all the injuries were antemortem in

nature and injuries No.1 to 16 had been caused due to blunt

object/force/friction against hard rough surface and were fresh in nature.

In their opinion, the probable duration of injuries No.1 to 16 was less than

twenty four hours prior to the death and they were non fatal in nature.

As for the injury mentioned at Sr. No.17 of the autopsy report, the

doctors had opined that the said injury was caused by some hard ligature

material and the death of Madhu Bala was caused due to hanging. They

had also observed that having regard to the presence of injuries on the

body of the deceased, which could not have been self-inflicted, homicidal

hanging could not be ruled out.

37. From the aforesaid autopsy report, it is apparent that Madhu Bala

was severely and quite brutally beaten up before her death. The said

medical evidence substantiates the appellant‟s version to the extent that

on the fateful night, he had thrashed his wife by giving her kicks, blows

and punches. However, there is no independent witness produced by the

defence to corroborate the story set up by the appellant, who is himself

an accused, that after such a violent assault of his wife, they had

partaken dinner and gone to bed. Nor does the medical evidence establish

the said fact, since the rectum of the deceased was found empty during

the autopsy of the dead body. The stand of the learned counsel for the

appellant that the rectum was found empty, as the food that was

consumed, had got digested, is based on the uncorroborated version of

the appellant with respect to the sequence of events that had transpired

on the night intervening 18/19.7.1996. It cannot be ruled out that after

receiving such a severe beating at the hands of the appellant, Madhu Bala

did not eat a morsel, which appears to be a more plausible version than

the one canvassed on behalf of the appellant.

38. This Court is therefore quite skeptical about the stand taken by the

appellant that after he had subjected the deceased to such severe ill-

treatment by thrashing her, giving her kicks, punches and fist blows, they

both had sat down to have dinner as if it was a routine day and then they

had gone to sleep. Such a conduct is not in keeping with normal human

behavior and quite untenable. When admittedly, so much heat had been

generated between the parties that a verbal wrangle had exploded into a

physical assault of the deceased by the appellant, resulting in his inflicting

as many as sixteen injuries on her body, the version put forth by the

appellant that after such a serious and hostile showdown, he had made

peace with the deceased and both had sat down to dinner and they went

to sleep at 3 AM, is quite absurd and does not appeal to a logical mind.

39. The word "instigation" has various connotations. It takes in its folds,

an attempt to goad, provoke, encourage, incite, urge forward to do „an

act‟. It is well settled that to meet the requirement of instigation, it is not

necessary that actual words should have been spoken by the appellant to

provoke the deceased or the ingredients of instigation must be suggestive

of the consequences that would follow. Rather, a reasonable certainty to

incite the consequence must be capable of being made out.

40. The consistent view taken in the judicial pronouncements of the

Supreme Court and the High Courts is that for holding an accused guilty

of an offence under Section 306 IPC, the facts and circumstances of the

case must be examined carefully and the evidence adduced must be

assessed to find out as to whether the cruelty and harassment to which

the victim was subjected had left her with no option but to extinguish her

life. Further, in cases of abetment to suicide, there must be proof of

direct or indirect act of incitement to the commission of suicide and the

person, who is said to have abetted commission of suicide, ought to have

played an active role by either instigating the victim or by such willful act

that would be provocative enough for commission of suicide. As was

observed in the case of Amalendu Pal (supra), any positive action

proximate to the time of occurrence on the part of the accused, which led

or compelled the person to commit suicide, would sustain a conviction in

terms of Section 306 IPC.

41. On a cumulative reading and assessment of the material available

on the record, the picture that emerges is that on the night intervening

18/19.07.1996, the appellant had a fight with Madhu Bala and had

severely beaten her, that had resulted in her suffering sixteen injuries.

For the learned counsel for the appellant to contend that it was a

spontaneous act and it took place on the spur of the moment and the

appellant had caused only simple injuries to the deceased, which by

themselves could not have incited Madhu Bala to such an extent that she

had committed suicide, is found to be quite untenable. It may be

emphasized that the effect of an assault on a woman, would depend on

the facts of a given case and there cannot be any generalization. This

Court is of the opinion that by his willful conduct, the appellant had

created such circumstances that he knew would have impelled the

deceased to commit suicide and therefore, the inevitable conclusion is

that Madhu Bala had been driven by the appellant to commit suicide.

The facts and circumstances referred to hereinabove, are found to be

sufficient to indict the appellant under Section 306 IPC, more so when he

has failed to discharge the onus cast on him to rebut the presumption

referred to in Section 113A of the Evidence Act.

42. The judicial pronouncements referred to and relied upon by the

counsel for the appellant to claim that the presence of mens rea is a

necessary ingredient for instigation which was missing in this case, would

not be of any assistance in the given facts and circumstances of the case.

43. To support the above plea, learned counsel for the appellant had

relied on the decisions in the cases of Neeraj Gupta (supra) and Sanju

alias Sanjay Singh Sengar (supra). In the case of Neeraj Gupta (supra), a

suicide note was recovered from the body of the victim that indicated that

he was upset with the petitioner/accused therein on account of a

commercial transaction between the parties going sour. After examining

the evidence on record, the Court observed that there was no active

engagement on the part of the petitioner/accused to encourage or incite

the deceased to commit suicide and merely because the deceased had

extended a loan to the petitioner for setting up a hotel, which he was

unable to pay, could not be treated as an act of having incited the

deceased to commit suicide, the crucial element of mens rea having not

been alleged against the petitioner.

44. In the present case, it cannot be urged that no element of mens rea

was attributable to the appellant or that the prosecution had not levelled

the allegations or adduced evidence against the appellant of subjecting

the deceased to cruelty and harassment, enough to incite her to commit

suicide. The allegations of mens reas are well brought out from the

charge framed against the appellant and the other accused as below:-

"AMENDED CHARGE

That on 9.7.96 at house No.G-17, Vikas Puri within the jurisdiction of P.S. Vikas Puri, Smt. Madhu Bala was found dead and her death occurred otherwise than in normal circumstances within 7 years of her marriage and soon before her death, you all in furtherance of your common intention subjected Smt. Madhu Bala to cruelty and harassment and in connection with demand of dowry and you all thereby committed an offence punishable under Section 304B r/w Section 34 IPC and within the cognizance of this Court of Sessions.

ALTERNATIVE CHARGE

That on 9.7.96, at House No.G-17, Vikas Puri within the jurisdiction of P.S. Vikas Puri, you all in furtherance of your common intention committed the murder of Smt.Madhu Bala and you all thereby committed an offence punishable u/S 302 r/w Section 34 IPC and within this Court of Sessions."

45. In the case of Sanju alias Sanjay Singh Sengar (supra), the

prosecution story was that the relationship between the deceased and his

wife were strained and she was residing with her brother; when the

deceased went to fetch his wife back to the matrimonial home, a quarrel

had taken place between him and the accused/appellant, brother-in-law

of the deceased and after two days, the deceased was found dead as a

result of hanging. The suicide note of the deceased showed his disturbed

state of mind and the evidence produced by the prosecution included the

statement of the deceased‟s brother to the effect that the

appellant/accused had threatened and abused him with filthy words. In

the aforesaid case, the Court observed that there was a gap of two days

between the incident of the alleged abusive words said to have been

addressed to the deceased during the quarrel and the date when he was

found hanging and therefore, it could not be said that the said abusive

language used by the appellant, drove the deceased to commit suicide.

46. In the present case, it is apparent from the facts and circumstances

brought out in the evidence that there was complete proximation between

the physical assault of Madhu Bala by the appellant and her death in

unnatural circumstances. Even as per the appellant‟s own version, the

gap between the two incidents was not more than 3-4 hours, which can

be treated to be sufficient to constitute the ingredients of instigation. The

said active engagement of the appellant had resulted in a drastic action

being taken by the deceased, which was a direct result of the quarrel and

the thrashing given by the appellant. Therefore, it can hardly be said that

the ingredients of abetment were absent in the instant case for making

out the offence under Section 306 IPC or that there was no connection

between the quarrel that had taken place between the appellant and the

deceased on the night intervening 18/19.07.1996 and what had ensued

within a couple of hours therefrom.

47. In the case of Amalendu Pal (supra), after discussing the legal

position with regard to Section 306 IPC and its applicability in the light of

Section 107 IPC, the Supreme Court had concluded that having regard to

the evidence on record, there was no direct evidence to show that the

appellant/accused therein had by his acts instigated or provoked the

deceased to commit suicide or done any act that could be said to have

facilitated the commission of suicide by her. In the aforesaid case, the

appellant/accused was married to the deceased. Five-six years prior to

her committing suicide, he had developed extramarital relationship with a

lady and the said liaison had become known to the deceased.

Subsequently, the appellant/accused had brought the lady to his

matrimonial home and had tried to take the consent of the deceased for

marrying her. It was the case of the prosecution that on her refusal,

physical and mental torture was perpetrated by the appellant that drove

her to end her life. For concluding that there was no evidence to show

that the appellant/accused therein had instigated or provoked the

deceased to commit suicide, it was noted by the Court that the accused

had brought the second lady to stay at the matrimonial home three

months prior to the date, on which the deceased had committed suicide

and it was observed that if she was so perplexed by his act of marrying

the said lady that she felt impelled to commit suicide, then she could have

done so on the very day when the appellant had brought the lady to his

house. In view of the lapse of a period of three months in between the

two incidents, it could not be inferred as to whether the act of the

appellant was such that would have instigated or provoked the deceased

to commit suicide.

48. Unlike the facts of the aforesaid case, in the instant case, the

evidence adduced clearly brings out that the appellant had severely

beaten Madhu Bala on the night intervening 18/19.07.1996 and within a

few hours of the said incident, she had committed suicide. Learned

counsel for the appellant cannot equate the facts of the aforesaid case

with the case in hand. Similarly, the facts of Narender Singh Arora‟s case

(supra) relied upon by the counsel for the appellant are entirely different

from the present case as in the cited case, the High Court had concurred

with the findings of the trial court that the letters written by the

deceased, who had committed suicide by hanging herself in her

matrimonial home within seven years of getting married, did not reveal

that she was harassed on account of dowry or any dowry demand made

by her husband and her in-laws or any kind of ill-treatment was meted

out to her at their hands.

49. As for the contention of the counsel for the appellant that a solitary

incident of beating cannot be considered to be harassment or cruelty as

defined under Section 498A IPC, it may be noted that there can be no

hard and fast rule in this regard. Each case has to be examined on its

own facts. Much depends on the threshold of tolerance, the inherent

nature of the victim and the severity/intensity of the cruelty compelling

the victim to commit suicide. The facts in the case of Indrasing M. Raol

(supra) relied upon by learned counsel for the appellant reveal that the

solitary incident of the appellant/accused beating his wife had taken place

15 days prior to her committing suicide and it was therefore concluded

that Section 498A IPC would not be attracted. The High Court had

observed that persistent cruelty alongwith the intention of forcing the

victim to commit suicide were absent. On the contrary, in the present

case, the Court cannot make light of the violent physical assault made by

the appellant on the victim on the date of the incident that had resulted in

her suffering sixteen injuries. The severity of the assault on a woman and

the effect thereof is borne out from the fact that within a few hours of the

said incident occurring, Madhu Bala had committed suicide. This Court is

therefore of the opinion that none of the judgments cited by the counsel

for the appellant support his argument that there was no evidence on the

record to establish that the appellant had instigated/abetted the deceased

to commit suicide. All the cases relied upon are clearly distinguishable on

facts.

50. Before proceeding further, the Court may pause to clarify that an

offence under Section 306 IPC is entirely different from the one envisaged

under Section 498A IPC and both are independent of each other. It

depends on the facts and circumstances of a case as to whether

subjecting a woman to cruelty may amount to an offence under Section

498A IPC alone. If the conduct amounting to cruelty is established,

leaving no other option for the woman except to commit suicide, it may

also amount to abetment to commit suicide [Ref. Ramesh Kumar

(supra)]. At the same time, merely because an accused has been held

guilty under Section 498A IPC, does not mean that as a sequitur thereto,

based on the very same evidence, he must be held guilty for having

abetted the commission of suicide by the victim. But, in the facts of the

instant case, this Court is inclined to concur with the findings of the

Sessions court that the appellant is liable to be punished under Section

306 IPC and the procedural irregularity in not framing a charge against

him under Section 306 IPC would not amount to failure of justice as the

appellant has undergone a fair trial, where he knew what he was being

tried for and was given a full and fair chance to defend himself.

51. Coming to the argument advanced by the learned APP that there

was an error in the conclusion of the Sessions court that the role played

by the appellant on the night intervening 18/19.07.1996 falls solely within

the ambit of Explanation (a) appended to Section 498A IPC, while

excluding Explanation (b), it may be noted that Section 498A IPC provides

that if a husband or the relatives of the husband of a woman subjects her

to cruelty, he/they shall be punished with imprisonment for a term that

may extend to three years and shall be liable to pay fine. The

explanation appended to Section 498A IPC, that defines the meaning of

the word „cruelty‟ for the purpose of the said Section, has two limbs, i.e.,

Explanation (a) and (b) as set out hereinbelow:-

"Section 498A xxx xxx xxx Explanation - For the purpose of this section, „cruelty‟ means -

(a) any willful 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."

52. As discussed hereinabove, the role of the appellant that has been

brought out from the evidence adduced reveals that he is guilty of the

offence under Section 306 IPC and given the presumption under Section

113A of the Evidence Act, Section 498A Explanation (a) has a definite

application to the facts of the case. However, on carefully perusing the

evidence, this Court finds merit in the submission made by the learned

APP that apart from the application of Explanation (a) to the facts of the

case, cruelty is also established against the appellant under Explanation

(b) of Section 498A IPC, for the reasons elaborated hereinafter.

53. On a perusal of the impugned judgment, it appears that for arriving

at the conclusion that the prosecution had failed to substantiate the

allegation of demand of dowry by the appellant, or that he had harassed

Madhu Bala in connection with dowry, the learned Sessions Judge had

considered the testimonies of Madhu Bala‟s family members but he had

gone on to reject them on the ground that there were material

discrepancies and improvements made by the said witnesses on the

aspect of dowry demands made by the accused. The impugned judgment

takes note of PW-9, Sushila Devi‟s statement recorded before the learned

SDM, the day after Madhu Bala‟s death, but concludes that she had not

mentioned the fact that any such demand of dowry was raised on her and

her family members.

54. For drawing the above conclusion, the Sessions court has also relied

on the testimony of Ashok Kumar Kapoor, DW-2 (father-in-law of the co-

accused, Sumit Suri) which was to the effect that neither had the

deceased or her relatives ever complained to him about the conduct of

the appellant or the other co-accused in connection with any dowry

demand and observed that no such mention having been made to him,

would itself be a ground to disbelieve the prosecution version. The said

conclusion appears to be erroneous. The Sessions court overlooked the

fact that DW-2 was not residing in the same city and was a permanent

resident of Srinagar, Kashmir and even as per him, he had met the father

of Madhu Bala only on a couple of occasions. Having had very little and

infrequent interaction with the family members of Madhu Bala, he could

have hardly thrown any light on the aspect of dowry demands made by

the appellant on his wife and his in-laws. Further, if the Sessions Judge

was of the opinion that Madhu Bala‟s family members were interested

parties, then so was DW-2, whose daughter and son were the co-accused

in the case, along with the appellant and his mother.

55. The court below has also relied upon the deposition of two

witnesses from the neighbourhood produced by the prosecution, i.e., PW-

7 and PW-10 to conclude that nothing had emerged from their statements

to substantiate the prosecution version and they had ever found any of

the accused quarrelling with Madhu Bala or ill-treating her. In the opinion

of this Court, too much weightage has been given to the statement of the

neighbours and that too in a case where the appellant and his family had

shifted to their newly purchased home only a couple of months earlier.

Further, it is a matter of common knowledge that witnesses like PW-7 and

PW-10, or other similarly placed witnesses as for example, the domestic

staff, would not wish to get embroiled in court cases and prefer to keep a

safe distance.

56. It would be equally a travesty of justice to discard the entire

evidence of the family members of the deceased on the singular ground

that Smt. Sushila Devi (PW-9) had failed to give greater details of the

dowry demands made by the appellant and his family members and that

there was a time lag between the date of the incident and the date when

the testimonies of the remaining family members of Madhu Bala were

recorded.

57. PW-9 had candidly stated before the SDM that though at the time of

her marriage, Madhu Bala‟s in-laws had not demanded any dowry, but

after her marriage, she had told her parents that her in-laws used to

demand dowry and they had raised a grievance that they had not got

enough dowry at the time of the marriage. She had also stated that

Madhu Bala‟s in-laws used to beat her up in her matrimonial home and

she did not get enough to eat. Rather, she was told to work and earn

money to maintain herself. It was specifically stated by the mother that

they had paid a sum of `10,000/- in cash and purchased a double bed for

the appellant about a month prior to the fateful day.

58. Having regard to the categorical stand taken by PW-9 in her

statement recorded before the SDM on the very next day after the

occurrence of the unfortunate incident when she had lost her daughter

and the consistency in her deposition on material aspects including the

specific items demanded by the appellant from his in-laws, this Court

finds no justification for discarding the testimony of Madhu Bala‟s family

members in entirety on the ground that they were interested witnesses.

59. Now, let us examine the testimony of the other prosecution

witnesses for testing the application of Explanation (b) of Section 498A

IPC to the facts of this case. Praveen Kumar Chhabra(PW-2), brother of

Madhu Bala had stated that his sister used to complain against the

appellant and his family members for harassing her on account of

bringing insufficient dowry and that she had been sent back to her home

for the said reason. He had elaborated that at that time, the appellant‟s

father was alive and they were living at their earlier place of residence at

Mayapuri and after about 15-20 days of sending Madhu Bala back to her

parental home, the appellant had come to fetch her and had confessed to

his mistake. He had also specifically stated that after the appellant had

shifted with the deceased and the other family members to their new

home at Vikas Puri, Madhu Bala had told him that she was being harassed

and tortured by the appellant and his family and they had been

demanding new furniture and a colour television for the new house. He

had deposed that the deceased had shared with him the fact that when

she had refused to convey their demands to her family, the appellant had

been beating her. He had stated that fifteen days prior to her death, his

parents had given the appellant a new double bed as demanded by them

and because the mattresses were not provided with the bed, the

deceased was taunted.

60. Dalip Kumar Chhabra, (PW-5) the other brother of Madhu Bala had

stated that there was no demand of dowry before the marriage of Madhu

Bala but after her marriage, the accused persons had started demanding

a colour television and other articles. They had also demanded cash

amounts to enable the appellant to settle down in his business. The fact

of a new double bed being purchased and presented to the appellant two

weeks before the death of Madhu Bala and payment of cash amount of

`10,000/- to the appellant was repeated by the said witness. The only

improvement noticed in the statement of PW-5 is on the aspect of the

demand a colour television and a catering van by the accused, which was

not a part of his statement as recorded during the investigation (Ex.PW-

5/DA).

61. Similarly, Amita Chhabra (PW-4), sister of the deceased had

deposed that after the marriage of Madhu Bala, the accused persons had

started demanding dowry and they used to abuse her for bringing less

dowry and not fulfilling their demands. She had stated that at the time of

the marriage, the appellant and his brother, Sumeet Suri were doing

business jointly but after the marriage, Sumeet Suri had separated from

the appellant and the appellant started demanding money for starting his

own business. He had also started to press the deceased to join some

service to meet the household expenses, whereafter the deceased had

joined service with a beauty parlour at Janakpuri. The said witness

repeated the fact of her father having paid a cash sum of `10,000/- and

having presented a new double bed to the accused after they had shifted

from Mayapuri to the new house at Vikas Puri. She had stated that the

accused had demanded a catering van from her parents, but they could

not afford to purchase one. She had also stated in her testimony that two

days prior to her death, Madhu Bala had telephoned her and informed her

that the appellant had purchased a shop in Vikas Puri for a sum of `7 lacs

for which he had paid the earnest money of `10,000/- and told her to

bring the remaining sale price from her parents but they were not in a

position to pay the said amount.

62. It is undoubtedly true that there are chances of interested witnesses

making exaggerated claims or embroidering the truth. However, when

scrutinizing the evidence, the Court must use its legal acumen to separate

the grain from the chaff and only in circumstances, where the

exaggerations made by the witness are found to be so improbable or

preposterous that would render him wholly untrustworthy, should the

Court refuse to rely on him. As has been observed by the Supreme Court

in the case of Vajresh Venkatray Anvekar (supra), if the attendant

circumstance and evidence on record clearly corroborates the witness,

then merely because he is an interested witness, he cannot be disbelieved

because of some exaggeration, if his evidence is otherwise reliable.

63. In the present case, this Court has not found any such preposterous

or outrageous statements made by the brothers of the deceased (PW-2

and PW-5), her sister (PW-4) and her mother (PW-9), for completely

discarding their evidence. Some delay in recording the statement of a few

witnesses produced by the prosecution, namely, PW-4, PW-5, PW-7 and

PW-9 would no doubt put the trial court on guard while scrutinizing their

statements but that by itself would not be a ground to overlook their

entire deposition simply on the ground that they could not specify the

details of the date, time and place when demands of dowry had been

made by the accused.

64. A perusal of the testimonies of the aforesaid witnesses reveal that

except for some exaggerations that can be easily be identified and

discerned as improbable, the witnesses were consistent and had fairly

withstood the test of cross-examination. The appending circumstances

when correlated with the testimony of the aforesaid witnesses clearly

brings out the fact that the version of the deceased as disclosed to her

parents, brothers and sister, ought not to have been discarded outright as

has been done by the trial court, merely on the ground that at the time of

her statement being recorded by the SDM, she did not furnish the details,

the timings and the specific occasions when demands of dowry were

made by the accused on them or on the deceased and consequently, all

that she had stated in her testimony that was recorded in the year 2002,

ought to be disregarded.

65. The Sessions court ought to have been mindful of the fact that a

helpless and grieving mother had lost a daughter only a day prior to her

statement being recorded by the SDM and in such a stressful condition,

she could hardly be expected to be lucid and capable of recalling each and

every detail of the demands of dowry made on her including the specific

dates, occasions and other particulars of the dowry demands made by the

accused. Nor could it be expected that independent witnesses would be

available and step forward to depose on the dowry demands raised by the

accused or the torture suffered by the deceased on failure to satisfy their

greed. It has been observed time and again that in cases, where a

woman is ill-treated, assaulted, physically or mentally tortured within the

four walls of her matrimonial home, such ill-treatment cannot be

witnessed by an outsider but only by those, who commit such a crime and

obviously, they would not come forward to depose about it.

66. When examined in the light of the aforesaid sequence of events, the

repeated threats of demands of dowry made by the accused on the

deceased appears to be the common and live link that runs through the

testimony of the prosecution witnesses, apart from that of physical

threats that were extended to her by the appellant. It has also been

brought out that due to failure on her part to meet the dowry demands,

on one occasion, the appellant had left Madhu Bala at her parental home

and had returned after a couple of weeks to take her back. So things were

brewing in the matrimonial home for some time. The final straw on the

camel‟s back, was the severe beatings that the appellant had given to

Madhu Bala on the night of 18.07.1996, that was by itself sufficient to

have provoked her into taking the extreme step of committing suicide.

The court may hasten to clarify here that the cruelty to which deceased

was subjected by the appellant, who had made demands of dowry on her

and her family members would however not be a circumstance for

invoking the provisions of Section 306 IPC against him. The circumstances

for establishing the offence of Section 306 IPC against the appellant are

different and have been dealt with above, separately.

67. Given the above background, there is no doubt that Explanation (b)

of Section 498A IPC is also attracted to the facts of the present case.

The trial court had in fact misdirected itself by laying too much emphasis

on what according to it, was missing from the statement of Madhu Bala‟s

mother (PW-9) as recorded before the SDM on 20.7.1996, while

overlooking what she had actually stated before the SDM, apart from the

corroborative testimonies of the other witnesses produced by the

prosecution. There was sufficient evidence on the record to indict the

appellant for the offence under Section 498A IPC, under both the

explanations appended to the said provision.

68. This Court is therefore of the opinion that the prosecution was not

only successful in making out a case against the appellant to the effect

that by his willful conduct, he had driven his wife to commit suicide

under the provisions of Section 306 IPC, it was also able to establish that

unlawful demands of dowry were made by him on the deceased and her

family members that would amount to "cruelty". As a result, both the

limbs of the explanation clause appended to Section 498A IPC are

attracted. By invoking the provisions of Section 386(b)(ii) of the Cr.PC

that empowers the appellate court to alter the findings while maintaining

the sentence in an appeal from conviction, this Court deems it fit to alter

the findings returned to the contrary by the trial court on the aforesaid

aspect, while maintaining the sentence imposed on the appellant under

Section 498A IPC.

69. In view of the aforesaid facts and circumstances, the present appeal

is dismissed as being devoid of merits. The impugned judgment dated

23.12.2006, inculpating the appellant for the offences punishable under

Sections 498A and 306 IPC is upheld with a caveat that both the

explanations appended to Section 498A IPC are attracted to the facts of

the case. Resultantly, the conviction of the appellant in terms of the

order on sentence dated 02.01.2007 is confirmed.

                                                         (HIMA KOHLI)
AUGUST 01, 2014                                             JUDGE
rkb/mk/sk