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Friday, November 1, 2013

SEC. 304 B , 306 AND 498 A I.P.C. - When wife stated that she committed suicide as she was fed up with the acts of husband with out disclosing the activities - it can not be considered as an offence under sec. 304 B as there is no allegation that soon before her committing suicide the husband harassed her dowry etc., Apex court punished the husband under sec.306 and 498 A I.P.C. = Rajeev Kumar …… Appellant Versus State of Haryana ….. Respondent - http://judis.nic.in/supremecourt/filename=40946

SEC. 304 B , 306 AND 498 A I.P.C. - When wife stated that she committed suicide as she was fed up with the acts of husband with out disclosing the activities - it can not be considered as an offence under sec. 304 B as there is no allegation that soon before her committing suicide the husband harassed her dowry etc., Apex court punished the husband under sec.306 and 498 A I.P.C.  =

whether  the
        prosecution has been able to prove beyond reasonable doubt that the
        appellant has committed the offence of dowry  death  under  Section
        304B, IPC. 
The two dying declarations are  similarly  worded.   
We,
        therefore, extract hereinbelow only the dying declaration which was
        recorded by the Judicial Magistrate (Ext. PN):

        “Statement of Vandana, w/o Rajiv Singla, age 23  years,  occupation
        house wife, R/o Dabwali, u/s 164 Cr.P.C.


              I was married to Dr. Rajiv Singla 2 years back.   My  husband
        used to get upset on petty issues.  My  in-laws  lived  separately.
        They are living after the 6 months of my marriage.  My daughter  is
        of 2 months.  Today about 7.30 p.m., in evening I was fed  up  with
        activities of my husband and put on kerosene oil and  burn  myself.
        Earlier my husband used to taunt me for dowry.   Action  should  be
        taken against my husband.


                                        Sd/- R.C. Bangri
        RO & AC                              JMIC
                                       Dabwali, 26-2-91
        RTI of Vandana
        Identified
        Sd/-
        Madan Lal, ASI
        P.C. City Dabwali,
        Dated: 26-2-91”

It will be clear from the contents of the dying declaration (Ext.  PN)  that
the deceased was fed up with the activities of her husband  and  she  poured
kerosene oil on herself and burnt herself.  
What  those  activities  of  the
appellant were which prompted her to commit suicide have  not  been  clearly
stated, but she has stated that her husband  used  to  get  upset  on  petty
issues and earlier her husband used to taunt her for dowry.

When 304 B applies ?
With out framing charge can court punish the accused under lesser offences without remand ?
In K. Prema S. Rao and Another, etc.  v.  Yadla  Srinivasa  Rao  and
Others, etc. [(2003) 1 SCC 217]
this Court on similar facts has  held  that
to attract the provisions of Section 304B, IPC, one of the main  ingredients
of the offence, which is required to be established, is  that  “soon  before
her death” she was subjected to cruelty and harassment “in  connection  with
the demand for dowry” and this ingredient of the offence was  not  there  in
that case. 
This Court, however, held that it was not necessary to remit  the
matter to the trial court for framing a charge under Section 306,  IPC,  and
the accused also cannot complain for  want  of  opportunity  to  defend  the
charge under Section 306, IPC, if the facts found in  evidence  justify  the
conviction of the appellant under Sections 498A and 306, IPC instead of  the
graver offence under Section 304B, IPC.   
 In  that  case,  the  three-Judge
Bench of this  Court  held  the  appellant  guilty  of  the  offences  under
Sections 498A and 306, IPC instead  of  the  graver  offence  under  Section
304B, IPC.

 In this case also, we hold the appellant guilty of offences  under
      Sections 498A and 306, IPC.  Considering the  particular  conduct  of
      the appellant which drove the deceased to commit suicide, we impose a
      sentence of one year imprisonment and  fine  of  Rs.1,000/-  for  the
      offence under Section 498A, IPC and impose a sentence of three  years
      imprisonment and fine of Rs.2,000/- for  the  offence  under  Section
      306, IPC, and direct that in case of failure  to  pay  the  fine  for
      either of the two offences, the appellant  shall  undergo  a  further
      imprisonment for a period of six months.  We make it clear  that  the
      sentences of imprisonment for the two offences will run concurrently.
       If the appellant has already undergone  the  punishment  imposed  by
      this judgment, his bail bonds shall stand discharged.

Reportable

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                       CRIMINAL APPEAL No. 967 OF 2005

Rajeev Kumar                                                     ……
Appellant

                                   Versus

State of Haryana                                              …..
Respondent




                               J U D G M E N T

A. K. PATNAIK, J.


      This is an appeal by way of special leave under  Article  136  of  the
Constitution against  the  judgment  dated  16.09.2004  of  the  Punjab  and
Haryana High Court in Criminal Appeal No.337-SB of 1992.

Facts:

     2. The facts very briefly are that on 26.02.1991 at  11.20  P.M.,  the
        Assistant Sub-Inspector of Police of Police  Station-City  Dabwali,
        District Sirsa in  Haryana,  Madan  Lal  recorded  a  statement  of
        Vandana at CHC Hospital, Mandi Dabwali.  She stated that about  two
        years ago, she was married to the appellant and the appellant  used
        to taunt her on petty matters and earlier  the  appellant  used  to
        tease her for dowry and on being fed up  with  the  habits  of  the
        appellant, on 26.02.1991 between 7.00 and 7.30 P.M., she  sprinkled
        kerosene on her and set herself on fire.  The statement of  Vandana
        was registered as First Information Report (FIR)  by  the  S.I.  of
        P.S. Dabwali, Kuldeep Singh.  Soon thereafter  on  26.02.1991,  the
        Judicial Magistrate, First Class, R.S. Bagri, recorded a  statement
        of Vandana under Section 164 of the  Code  of  Criminal  Procedure,
        1973  (for  short  ‘Cr.P.C.’)  in  which  Vandana  reiterated   her
        statement to the Police.  On 27.02.1991 at 2.20 A.M., Vandana died.
         Post mortem was carried out on the body  of  Vandana  (hereinafter
        referred to as ‘the deceased’) by Dr. S.S. Bansal.  The Police then
        took up the investigation and submitted a charge-sheet against  the
        appellant.

     3. On 28.08.1991, the Sessions Court framed  a  charge  under  Section
        304B, IPC, against the appellant to which the appellant pleaded not
        guilty.  At the trial, the prosecution examined Kedar Nath, who had
        prepared the scaled plan (Ext. PA) on the place of  occurrence,  as
        PW-1; Dr. R.C. Chaudhary, Medical Officer, General Hospital,  Mandi
        Dabwali, who had examined the deceased and found the burn  injuries
        on her body as PW-2; S.I. Kuldeep Singh of P.S.  Dabwali,  who  had
        registered the FIR as PW-3; the landlord of the house in which  the
        deceased lived with her husband as PW-4; Niranjan  Ram  Gupta,  the
        father of the deceased, as PW-5; Bhupinder Kumar, the uncle of  the
        deceased as PW-6; Dr. S.S. Bansal, who conducted the post mortem on
        the body  of  the  deceased  as  PW-7;  R.S.  Bagri,  the  Judicial
        Magistrate, who  recorded  the  statement  of  the  deceased  under
        Section 164, Cr.P.C. as PW-8 and ASI Madan Lal,  the  Investigating
        Officer, as PW-9.  The statement  of  the  appellant  was  recorded
        under Section 313, Cr.P.C.   In  defence,  the  appellant  examined
        Ramesh Devra as DW-1; Jagdish Kumar as DW-2; Nihal Singh, Assistant
        Chief Medical Officer,  Sirsa,  as  DW-3;  Dr.  Ajay  Kumar  Gupta,
        Medical Officer, Civil  Hospital,  Sirsa,  as  DW-4  and  Dr.  J.L.
        Bhutani as DW-5.  After considering the evidence and the  arguments
        on behalf of the parties, the learned  Additional  Sessions  Judge,
        Sirsa, in his judgment dated 31.08.1992 held that  the  prosecution
        has been able  to  prove  the  charge  against  the  appellant  and
        accordingly convicted him under Section 304B, IPC.  Thereafter, the
        learned Additional Sessions Judge heard the accused on the  quantum
        of sentence and ordered that the appellant be  sentenced  to  seven
        years R.I. with a fine of Rs.2,000/- and in default of  payment  of
        fine, to undergo further imprisonment of six months.

     4. Aggrieved, the appellant filed Criminal Appeal  No.337-SB  of  1992
        before the High Court. After hearing the appeal, the High Court  in
        the impugned judgment held that the deceased had indicated  in  her
        dying declarations (Exts.PG and PN) before ASI Madan  Lal  and  the
        Judicial Magistrate R.S. Bagri that she was being harassed  by  her
        husband with demands of dowry on account of which she had sprinkled
        kerosene on herself before setting herself ablaze. The  High  Court
        further held that the statement of the deceased in these two  dying
        declarations (Exts. PG and PN) that  she  was  being  harassed  for
        dowry stood corroborated by the  evidence  of  the  father  of  the
        deceased (PW-5) and uncle of the deceased (PW-6).  The  High  Court
        rejected the contention raised on behalf of the appellant that  the
        deceased was not in the medical condition to speak inasmuch as  her
        larynx and tracheae had been  charred  by  burns,  relying  on  the
        testimony of the medical experts Dr. R.C. Chaudhary (PW-2) and  Dr.
        J.L. Bhutani   (DW-5) as well as the testimony of the ASI Madan Lal
        (PW-9) and the Judicial  Magistrate  R.S.  Bagri  (PW-8),  who  had
        recorded the dying declarations of the deceased.   The  High  Court
        accordingly held that there was no ground  to  interfere  with  the
        orders of conviction and sentence passed by  the  trial  court  and
        dismissed the criminal appeal of the appellant.

Contentions of the learned counsel for the parties:

     5. Mr. S.B. Upadhyay, learned counsel  for  the  appellant,  submitted
        that the finding in the impugned judgment that  the  appellant  was
        harassing the deceased for dowry is not correct inasmuch  as  PW-4,
        the landlord of the house in which the  deceased  and  her  husband
        were living, has stated in his evidence that he did  not  hear  any
        sort of disharmony  or  fighting  between  the  appellant  and  the
        deceased and that they used to live and lead a normal married  life
        and both of them were blessed with a daughter, who was  aged  about
        six to seven months.  He further submitted that when  the  Judicial
        Magistrate (PW-8) recorded the  statement  of  the  deceased  under
        Section 164, Cr.P.C., Dr. R.C. Chaudhary (PW-2) was not present, as
        will be evident from the evidence of PW-8.  He submitted that PW-2,
        on  the  other  hand,  was  the  doctor  who  issued  the   fitness
        certificate to the Judicial Magistrate that the deceased was  in  a
        fit state to give the statement.  He referred to the opinion of Dr.
        S.S. Bansal (PW-7) to submit that the  larynx  and  tracheae  is  a
        voice box containing vocal cords through which a man speaks and  if
        they were charred by heat and burns, a person will not be  able  to
        speak.  He submitted that DW-2 was present in the hospital for  the
        whole night on 26.02.1991 and DW-2 has stated that the deceased was
        not in a position to speak when the alleged dying declarations  are
        said to have been made.  He submitted that the trial court and  the
        High Court, therefore, were not correct in  relying  on  the  dying
        declarations of the deceased recorded by the ASI Madan Lal and  the
        Judicial Magistrate R.S. Bagri for holding the appellant guilty.

     6. Mr. Upadhyay next  submitted  that  on  a  reading  of  the  entire
        evidence of PW-5 (the father of the deceased),  it  will  be  clear
        that the appellant and the deceased were happy with each other  and
        this will also be evident from the letters  exchanged  between  the
        family members between March 1989 and  January  1991  (Exts.  DE/2,
        DE/6, DE/7, DE/9, DE/12, DE/15, DE/17, DE/18, DE/19, DE/20,  DE/21,
        DE/22 and DE/23).  He submitted that this is, therefore, not a case
        where the appellant had made any demand of dowry  on  the  deceased
        and had subjected the deceased to  any  cruelty  or  harassment  in
        connection with the demand of dowry soon before her death and hence
        the ingredients of the offence under Section 304B, IPC, are missing
        in this case and, therefore, the appellant could not have been held
        guilty under Section 304B, IPC.

     7. Mr. Upadhyay cited the decisions of this Court in Sanjiv  Kumar  v.
        State of Punjab [(2009) 16 SCC 487], Durga Prasad & Anr.  v.  State
        of Madhya Pradesh [(2010) 9 SCC 73],  Gurdeep  Singh  v.  State  of
        Punjab & Ors. [(2011) 12 SCC 408] and Devinder  alias  Kala  Ram  &
        Ors. v. State of Haryana [2012) 10  SCC  763]  in  support  of  his
        submission that the offence under Section 304B, IPC,  is  not  made
        out against the appellant.  He submitted  that  at  the  worst  the
        appellant can be held guilty under Section  306,  IPC,  for  having
        abetted suicide by the deceased if the dying declaration is  to  be
        accepted.  He argued that the appellant has already  undergone  two
        years imprisonment and is now on bail and also has a young daughter
        to take care  of  and,  therefore,  the  appellant  should  not  be
        subjected to further imprisonment for  the  offence  under  Section
        306, IPC.

     8. Mr. Vikas Sharma,  learned  counsel  appearing  for  the  State  of
        Haryana,  on  the  other  hand,  submitted  that  the   two   dying
        declarations (Ext. PG and PN) of the deceased are  clear  that  the
        appellant used to harass the deceased for dowry and  being  fed  up
        with the habits of the appellant, the deceased  sprinkled  kerosene
        oil on herself and set  herself  ablaze.   He  submitted  that  the
        evidence of Dr. S.S. Bansal (PW-7) is clear that one can speak when
        the larynx and tracheae are in the process of  being  charred.   He
        submitted that even  DW-5,  the  medical  expert  produced  by  the
        accused in his defence, has admitted in cross-examination  that  in
        case of charring of vocal chords, the patient may be able to  speak
        and the trial court has relied on this admission made by DW-5.   He
        submitted that  Dr.  R.C.  Chaudhary  has  also  deposed  that  the
        deceased was fit to make the statement.   He  submitted  that  both
        these witnesses were medical experts and were rightly relied on  by
        the trial court and the High Court to reject the contention of  the
        appellant that the deceased was not in a fit condition to give  the
        statements to ASI Madan Lal and the Judicial Magistrate R.S. Bagri.
         Mr. Sharma also relied on the evidence of PW-5 that the  appellant
        used to give beatings to the deceased  and  demand  more  and  more
        dowry.  He submitted that the trial court and the High  Court  were
        therefore right in holding the  appellant  guilty  of  the  offence
        under Section 304B IPC.

     9. Mr. Sharma cited the decision of this Court in Bansi Lal  v.  State
        of Haryana [(2011) 11 SCC 359] in which it has been held that while
        considering a case under Section 304B, IPC, cruelty  in  connection
        with demand of dowry has to be proved in  close  proximity  to  the
        time of death because of the expression “soon before her death”  in
        Section 304B IPC, and  the Court  has  to  analyse  the  facts  and
        circumstances of each case leading to the death of the  victim  and
        decide if there is such proximate connection  between  the  act  of
        cruelty in connection with demand of dowry and death of the  woman.
        He also cited the decision of this Court in Smt. Shanti and Another
        v. State of Haryana [AIR 1991 SC 1226]  for  the  proposition  that
        once the death  of  a  woman  is  found  to  be  unnatural,  either
        homicidal or suicidal, Section 304B, IPC, has to be attracted.

Findings of the Court:

    10.  The first question that we have to decide is whether the  deceased
        was in a condition to make the dying declarations (Exts.PG and  PN)
        before ASI Madan Lal and the Judicial Magistrate  R.S.  Bagri  when
        her larynx and tracheae had been affected by burns.  PW-2, Dr. R.C.
        Chaudhary, has stated in his evidence that on  26.02.1991,  on  the
        application of the Police (Ext.PD), he gave his opinion in Ext.PD/1
        to the effect that the patient was fit to give  her  statement  and
        this opinion was given at 10.30 P.M.   PW-9,  ASI  Madan  Lal,  has
        deposed in his  evidence  that  the  doctor  vide  his  endorsement
        (Ext.PD/1) declared that Vandana was fit to give her statement  and
        then he recorded the statement of Vandana  (Ext.PG)  correctly  and
        after Vandana admitted the contents of the statement to be correct,
        she  gave  her  thumb  impression  in  Ext.PG  in  token   of   its
        correctness.  PW-9 has further stated that at that time Vandana was
        living and taking long sigh and she remained conscious at the  time
        of giving her statement (Ext. PG).  PW-9 has also  stated  that  he
        then went to  the  Judicial  Magistrate  R.S.  Bagri  (PW-8)  whose
        residence was near the hospital and R.S.Bagri  accompanied  him  to
        the hospital and recorded the statement of Vandana.   The  Judicial
        Magistrate R.S. Bagri has accordingly deposed that  ASI  Madan  Lal
        had approached him in person at his residence at 10.40  P.M.  along
        with application (Ext.PM) and he came to the hospital and moved  an
        application  (Ext.PM/1)  to  the  Medical  Officer  concerned   and
        thereafter he recorded her statement and at the time  of  recording
        the statement, Dr. R.C. Chaudhary was not present but he had  given
        a certificate (Ext.PM/2) on the application (Ext.PM/1) that Vandana
        was in a fit state to make a statement and she continued to  be  so
        during the making of the statement.  It  is  thus  clear  from  the
        evidence of the aforesaid three witnesses PW-2, PW-8 and PW-9  that
        at the time the statements of Vandana were recorded  by  ASI  Madan
        Lal (PW-9) and the Judicial Magistrate R.S. Bagri (PW-8),  she  was
        in a fit condition to make the statement.  When, however, the  post
        mortem was carried out on 27.02.1991 by Dr.S.S.  Bansal  (PW-7)  at
        4.00 P.M. he found that the larynx and  tracheae  of  the  deceased
        were charred by heat.  On questions being  put  to  him  whether  a
        person will be able to speak when  her  larynx  and  tracheae  were
        charred by heat, PW-7  has  clarified  that  when  the  larynx  and
        tracheae are charred, the person cannot speak, but when the  larynx
        and tracheae are in the process of being charred,  the  person  can
        speak.  Dr. J.L. Bhutani, DW-5, has given his opinion that  if  the
        vocal chord of larynx is charred, such person may be able to speak,
        but not clearly, and it  will  be  difficult  to  understand.   The
        opinions of the two medical experts, therefore, are not in variance
        of the ocular evidence of PW-2, PW-8 and PW-9 that Vandana was in a
        position to speak when her dying declarations were recorded on  the
        night of 26.02.1991.  Hence, the two dying declarations (Ext.PG and
        Ext.PN) can be relied on by the Court.

    11.  The  next  question  which  we  have  to  decide  is
whether  the
        prosecution has been able to prove beyond reasonable doubt that the
        appellant has committed the offence of dowry  death  under  Section
        304B, IPC. 
The two dying declarations are  similarly  worded.   
We,
        therefore, extract hereinbelow only the dying declaration which was
        recorded by the Judicial Magistrate (Ext. PN):

        “Statement of Vandana, w/o Rajiv Singla, age 23  years,  occupation
        house wife, R/o Dabwali, u/s 164 Cr.P.C.


              I was married to Dr. Rajiv Singla 2 years back.   My  husband
        used to get upset on petty issues.  My  in-laws  lived  separately.
        They are living after the 6 months of my marriage.  My daughter  is
        of 2 months.  Today about 7.30 p.m., in evening I was fed  up  with
        activities of my husband and put on kerosene oil and  burn  myself.
        Earlier my husband used to taunt me for dowry.   Action  should  be
        taken against my husband.


                                        Sd/- R.C. Bangri
        RO & AC                              JMIC
                                       Dabwali, 26-2-91
        RTI of Vandana
        Identified
        Sd/-
        Madan Lal, ASI
        P.C. City Dabwali,
        Dated: 26-2-91”

It will be clear from the contents of the dying declaration (Ext.  PN)  that
the deceased was fed up with the activities of her husband  and  she  poured
kerosene oil on herself and burnt herself.  What  those  activities  of  the
appellant were which prompted her to commit suicide have  not  been  clearly
stated, but she has stated that her husband  used  to  get  upset  on  petty
issues and earlier her husband used to taunt her for dowry.

12.   When, however, we scrutinize the evidence of PW-5, the father  of  the
deceased, we find that soon before the death of the deceased, the  appellant
had subjected the deceased to cruelty which was not  in  any  way  connected
with the demand of dowry.  The relevant part of  the  evidence  of  PW-5  is
quoted hereinbelow:


       “Smt. Vandhana deceased was my daughter.  I had married my  daughter
       Vandhana with Rajiv Kumar, accused  now  present  in  the  Court  on
       28.01.1989 at Kartarpur.  Out of her wed lock with the accused Rajiv
       Kumar, a female child was born on  2.7.90.   Vandhana  deceased  and
       Rajiv Kumar accused,  her  husband  used  to  reside/live  in  Mandi
       Dabwali.  After marriage, whenever Vandhana used to come to tell us,
       she used to tell me that her husband Rajiv Kumar gives  her  beating
       and demands more and more dowry.  We used to fulfill the  demand  of
       Rajiv Kumar accused in the shape of dowry put forward before  us  by
       my daughter and used to send her back after advising her that she is
       to live with her husband and should try  to  adjust  with  him.   On
       19.2.91 Vandhana came to me at Kartarpur and told me that  two  days
       prior to 19.2.91, Rajiv Kumar accused her husband gave her merciless
       beating.  She narrated this to me in the presence of  my  wife  Smt.
       Pushpa Rani and Bhupinder Singh my brother in fact, he is my friend.
        On the night of 24.2.91, I had received anonymous telephone call on
       the telephone no. 242 that Rajiv Kumar has  fled  away  leaving  his
       minor daughter alone.  On hearing this,  my  daughter  Vandhana  got
       perturbed and wanted us to leave her at Mandi  Dabwali  immediately.
       On 25.02.91 (25.2.91) we left Vandhana  at  Mandi  Dabwali.   I  was
       accompanied by my wife Pushpa Rani and Bhupinder Kumar.  On reaching
       at Dabwali we found Rajiv Kumar present in his clinic and  later  on
       he came to the house.  We  told  Rajiv  Kumar  that  he  should  not
       repeatedly give beating to Vandhana.  We told him that  it  was  not
       proper for him to do so.  We also advised our daughter  Vandhana  to
       adjust with her husband and to remain calm  and  quiet  and  not  to
       speak.  On 25.2.91 itself after advising Rajiv Kumar and Vandhana we
       came back to Kartarpur after  staying  at  night  at  Bhatinda.   On
       27.2.91,  I  received  a  telephonic  message  that  Vandhana  after
       sprinkling kerosene oil on her body has put herself  fire  and  that
       she is dead and no longer alive.”

From the aforesaid evidence of PW-5, it is clear that the  marriage  between
the appellant and the deceased took place on 28.01.1989 and  the  demand  of
dowry by the appellant and  the  beatings  for  more  dowry  was  after  the
marriage.  PW-5 has also stated that on 19.02.1991 the deceased came to  him
at Kartarpur and told him that two days prior to 19.02.1991,  the  appellant
gave her merciless beating.  PW-5 has, however, not stated that the  beating
that the appellant gave to the deceased  on  19.02.1991  was  in  connection
with demand of dowry.  One of the essential ingredients of  the  offence  of
dowry death under Section 304B, IPC is that the accused must have  subjected
a woman to cruelty in connection with demand of dowry soon before her  death
and this ingredient has to be proved by the  prosecution  beyond  reasonable
doubt and only then the Court will presume that the  accused  has  committed
the offence of dowry death under Section 113B of the  Indian  Evidence  Act.
As this ingredient of Section 304B, IPC, has not  been  established  by  the
prosecution, the trial court and the High Court were not correct in  holding
the appellant guilty of the offence of dowry death under Section 304B,  IPC.


  13.  We have perused the decision  of  this  Court  in  Smt.  Shanti  and
      Another v. State of Haryana (supra) cited by Mr. Sharma and  we  find
      that in the aforesaid case the facts were that Smt. Shanti was mother-
      in-law of the deceased and Smt. Krishna was  another  inmate  in  the
      matrimonial home in which the deceased was living and it was  alleged
      that both Smt. Shanti and Smt. Krishna were  harassing  the  deceased
      all the while after the marriage  for  not  bringing  a  scooter  and
      television as part of the dowry and  she  was  treated  cruelly.   On
      26.04.1988 at about 11.00 P.M., the father of the  deceased  came  to
      know that the deceased had been murdered  and  was  cremated  by  two
      ladies and he filed a report accordingly before the police.  Both the
      courts below held that the two ladies did not send  the  deceased  to
      her parents house and  drove  out  the  brother  and  father  of  the
      deceased complaining that a scooter and a  television  has  not  been
      given as dowry.  The evidence of the father, mother  and  brother  of
      the deceased was that they were not  even  informed  soon  after  the
      death of the deceased and the appellants had hurriedly  cremated  the
      dead  body.   In  these  circumstances,  this  Court  held  that  the
      presumption under Section 113-B of the Indian Evidence Act  that  the
      two ladies have committed the offence under Section  304B,  IPC,  was
      attracted.  This was, therefore, a case where  the  evidence  clearly
      disclosed that the deceased  had  been  subjected  to  harassment  or
      cruelty committed by the appellants soon before her death.

  14. We have also examined the decision of this  Court  in  Bansi  Lal  v.
      State of Haryana (supra), cited by Mr. Sharma, and we find  that  the
      facts in that case were that the appellant Bansi Lal was  married  to
      Sarla on 04.04.1988.  She was subjected to  cruelty,  harassment  and
      demand of dowry and on 25.06.1991 she died.  After  investigation  of
      the case, prosecution filed a charge-sheet against Bansi Lal and  his
      mother Smt. Shanti Devi and charges were framed  against  them  under
      Sections 498A, 304B and 306, IPC, and they  were  convicted  for  the
      said charges by the trial court.  The High Court, however,  acquitted
      Smt. Shanti Devi, but convicted Bansi Lal because of demand of  dowry
      and cruelty in connection with demand of dowry to which the  deceased
      was subjected to by him.   Bansi  Lal  had  made  a  statement  under
      Section 313, Cr.P.C. that Sarla was in love with  some  other  person
      but she was forced to marry Bansi Lal against her will due  to  which
      she felt suffocated and committed suicide, leaving a suicide note  to
      that effect.  On these facts, this Court held that once it  is  shown
      that soon before her death the deceased has been subjected to cruelty
      or harassment for or in connection with the  demand  for  dowry,  the
      Court shall presume that such person has caused the dowry death under
      Section 113-B of the Evidence Act, and if the case of the  Bansi  Lal
      was that Sarla  has  committed  suicide,  the  onus  was  on  him  to
      establish his defence by leading sufficient  evidence  to  rebut  the
      presumption that he has not caused the dowry death, but Bansi Lal has
      failed to discharge that onus.

15.      On the evidence on record, though the appellant is  not  guilty  of
the offence under Section 304B, IPC, he is certainly guilty of  offences  of
abetment of suicide and cruelty.  Section 113-A of the Indian  Evidence  Act
states as follows:


       “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”

The language of Section 113-A of the Indian  Evidence  Act  makes  it  clear
that if a woman has committed suicide within a period of  seven  years  from
the date of her marriage and that 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.   The  Explanation
to Section 113-A of the Indian Evidence Act states that for the  purpose  of
Section 113-A “cruelty” shall have the same  meaning  as  in  Section  498A,
IPC.  The Explanation to Section 498A, IPC,  defines  ‘cruelty’  and  Clause
(a) of the Explanation states that cruelty means any willful  conduct  which
is of such nature as likely to drive a woman to commit suicide.   The  dying
declaration of the deceased (Ext. PN)  as  well  as  the  evidence  of  PW-5
extracted above are sufficient to  establish  that  the  appellant  used  to
fight on petty issues and give beatings to the  deceased,  which  drove  the
deceased to commit suicide.  This is, therefore,  a  clear  case  where  the
appellant had committed offences under Sections 498A and 306, IPC.

16.     In K. Prema S. Rao and Another, etc.  v.  Yadla  Srinivasa  Rao  and
Others, etc. [(2003) 1 SCC 217],
this Court on similar facts has  held  that
to attract the provisions of Section 304B, IPC, one of the main  ingredients
of the offence, which is required to be established, is  that  “soon  before
her death” she was subjected to cruelty and harassment “in  connection  with
the demand for dowry” and this ingredient of the offence was  not  there  in
that case.
This Court, however, held that it was not necessary to remit  the
matter to the trial court for framing a charge under Section 306,  IPC,  and
the accused also cannot complain for  want  of  opportunity  to  defend  the
charge under Section 306, IPC, if the facts found in  evidence  justify  the
conviction of the appellant under Sections 498A and 306, IPC instead of  the
graver offence under Section 304B, IPC.  
 In  that  case,  the  three-Judge
Bench of this  Court  held  the  appellant  guilty  of  the  offences  under
Sections 498A and 306, IPC instead  of  the  graver  offence  under  Section
304B, IPC.

  17.    In this case also, we hold the appellant guilty of offences  under
      Sections 498A and 306, IPC.  Considering the  particular  conduct  of
      the appellant which drove the deceased to commit suicide, we impose a
      sentence of one year imprisonment and  fine  of  Rs.1,000/-  for  the
      offence under Section 498A, IPC and impose a sentence of three  years
      imprisonment and fine of Rs.2,000/- for  the  offence  under  Section
      306, IPC, and direct that in case of failure  to  pay  the  fine  for
      either of the two offences, the appellant  shall  undergo  a  further
      imprisonment for a period of six months.  We make it clear  that  the
      sentences of imprisonment for the two offences will run concurrently.
       If the appellant has already undergone  the  punishment  imposed  by
      this judgment, his bail bonds shall stand discharged.

18. The appeal is allowed to that extent.


                                                               .……………………….J.
                                                               (A. K.
Patnaik)


                                                               ………………………..J.
                                                               (Gyan Sudha
Misra)
New Delhi,
October 31, 2013.




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