T.P. Sharma, J.@mdashThis criminal appeal is directed against the judgment of conviction and order of sentence dated 20/6/2007 passed by the Additional Sessions Judge, Bhathapara, District Raipur (C.G.) in Sessions Trial No. 71/2007 whereby and where under learned Additional Sessions Judge after holding the appellants guilty for the offence punishable under Sections 498-A/34 and 306/34 of the Indian Penal Code and sentenced rigorous imprisonment for 3 years with fine of Rs. 500/- in default of payment of fine amount, to further undergo rigorous imprisonment for 3 months to each appellants and rigorous imprisonment for 7 years with fine of Rs. 500/- in default of payment of fine amount, to further undergo rigorous imprisonment for 3 months to each appellants.
2. Judgment of conviction and order of sentence is challenged on the ground that without any clinching and credible evidence of cruelty, torture and abatement of suicide Court below has convicted and sentenced the appellants and thereby committed an illegality.
3. The brief case of the prosecution: deceased Indranibai was married to appellant No. 1 Vinod Kumar Patel in the Year 2006 within 8 months of her marriage she committed suicide in the house of appellants by consuming poison. Marg was reported by Melandas vide P-2 on 21/10/2006. Investigating Officer proceeded for spot and after summoning the witnesses vide Ex. P-3 prepared inquest of the body of the deceased vide Ex. P-4. Dead body was sent for autopsy to the Community Health Center, Bhatapara vide Ex. P-18. Autopsy was condoned by team of two doctors vide Ex. P-20 by Dr. Rajendra Maheshwari and Dr. D.P. Verma, death was due to asphyxia as a result of consuming poison. Viscera were preserved and was seized vide Ex. P-1. Spot map was prepared by P-19 Tahsildar and vide Ex. P-21-A by Sub Divisional Officer (Police). First Information Report was registered Vide Ex. D-3. Accused persons were arrested vide P-22 to P-24. Viscera were sent for chemical analysis vide Exs. P-25 & P-26. Statements of the witnesses were recorded u/s 161 of the Code of Criminal Procedure, 1973 (in short `the Code''). After completion of the investigation charge sheet was filed before the Judicial Magistrate First Class, Bhatapara who in turn committed the case to the Court of Sessions, learned Additional Sessions Judge received the case on transfer.
4. In order to prove the guilt of the appellants prosecution examined as well as 24 witnesses. Examination of the accused persons were conducted u/s 313 of the Code where they denied the circumstances appearing against them and innocency and false implication is claimed.
5. After affording an opportunity of the hearing to the parties learned Additional Sessions Judge has convicted and sentenced the appellants as aforementioned.
6. Learned Counsel for the parties are heard. Judgment impugned and records of courts below perused.
7. Learned Counsel for the appellants argued that in the present case deceased who was wife of appellant No. 1 and daughter-in-law of appellant No. 2 died under abnormal circumstances on 20/10/2006 in their house but they have never demanded dowry and committed torture upon the deceased they have neither instigated or added nor abated her suicide the only facts that that she died within 8 months of her marriage is not sufficient to draw the inference that present appellants are liable for commission of the offence.
8. Learned Counsel for the appellants further argued that prosecution witnesses are not supported the case of the prosecution. The statement of PW5 Ramanand Patel father of the deceased reveals that relation between the parties were cordial even one day before the incident he himself has visited the house of the appellants where he stayed in the night he took his meal there and after taking tea in the morning he came back to his house. Deceased was second wife of the appellant No. 1 there was no custom of dowry and their caste and in case of second marriage given and taking of the dowry is most uncommon.
9. Learned Counsel for the appellants placed reliance in the matter of Appasaheb and Anr. v. Sate of Maharashtra in which Apex Court has held that a demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand of dowry as the said word is normally understood.
10. On the other hand, learned Counsel for the State/respondent opposed the appeal and argued that deceased Indranibai died in the house of appellants under abnormal circumstances within 8 months of her marriage, the evidence adduced on behalf of the prosecution is sufficient for drawing inference that soon before her death she was subjected cruelty and torture in connection with the demand of dowry and present appellants are the person who have compelled the deceased to end her life. The conviction and sentenced awarded to the appellants are based on reliable and clinching evidence.
11. In order to appreciate the contention of the parties, I have examined the evidence adduced on behalf of the prosecution and the defence of the appellants. It is not disputed that present appellant No. 1 is a husband of the deceased and appellant No. 2 is a father-in-law of the deceased Indranibai who died within 8 months of her marriage in abnormal circumstances in the house of the appellants her death was abnormal, cause of death was asphyxia as a result of suspecting poisoning. PW22 Dr. Rajendra Maheshwari who conducted autopsy has deposed in Para-5 of his evidence that smell of poison was present in the abdomen of the deceased and no other injury was found over the body. He has specifically admitted in his cross examination that death was as a result of consuming of the poison.
12. As regard the cruelty, torture and abetment of suicide is concerned the cruelty has been defied in Section 498A of the Indian Penal Code which reads as follows:
498-A. Explanation.-For the purposes 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. ]
13. A new provision in Evidence Act for presumption as to abatement of suicide by a married woman has been added in the Year 1983 vide amendment Act 46 of 1983 which reads 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, 1860 (45 of 1860).]
14. In the present case deceased Indranibai died within 8 months of her marriage according to autopsy report Ex. P- 20 and statement of PW22 Dr. Rajendra Maheshwari she died by consuming poison and same is abnormal death within 7 years of her marriage. PW1 Kotwar Melandas has deposed that death of deceased was informed to him by appellant No. 2 he also informed the death to the parents of the deceased, second day father of the deceased came then at his instance he went to Police Station and lodged Marg intimation vide Ex. P-12 then Tahsildar and Police Officer came and prepared the inquest report. PW3 Prahlad Verma and PW4 Ramawatar Verma has also admitted that Tahsildar and Police officer prepared inquest report vide Ex. P-4. PW5 Ramanand Patel father of the deceased has deposed in his evidence that his daughter Indranibai died within 8 months of her marriage in the house of appellants before Diwali festival. On 17th. Appellant No. 2 telephoned to him at about 9 P.M. in which he demanded Rs. 20,000/- for construction of the house then he told that he is not in position to give such amount, second day when he came from field he saw his daughter in his house on being asked she told that she has been sent for taking Rs. 20,000/-, appellant No. 1 will also come then he told his daughter that it is not possible for him to arrange Rs. 20,000/- for them. At evening appellant No. 2 came to his house and after some time he repeated demand of Rs. 20,000/- which he explained. On 19th his daughter and appellant No. 2 went back to their house he also went to the house of the appellant along with Ramlal, Gajanand and Paretram where they stayed in the night and they took the meal. On second day 20/10/2006 after taking tea he came back along with other persons from the house of the appellants.
15. On 20/10/2006 he received the telephone call that her daughter had died then on second day he went along with 40- 50 persons of his village to the village of appellants. He saw the dead body of his daughter. He searched the Kotwar and went to the police station then Police Officer came and inquired. He has also deposed that blood were coming from the nostril and there was symptoms of pressing of neck. Autopsy of the dead body was conducted and after last rites to the dead body he came back to his house. He has admitted that his statement Ex. P-5 was recorded by Tahsildar. PW6 Mongrabai, elder aunt of the deceased has corroborated the statement of PW5 Ramanand Patel to the extent of information relating to death of deceased, demand of money and death of deceased and report. PW8 Sahodrabai, mother of the deceased has corroborated the statement of her husband PW5 Ramanand Patel, PW9 Ramlal Marar the elder brother of the father of the deceased, PW10 Paretram, PW11 Gajanand Patel have also supported the statement of Ramanand Patel.
16. In the present case when father of the deceased informed by the appellants then he came to the village and saw the dead body of her daughter he went to the Police Station where Kotwar lodged the Marg intimation. Inquest was prepared. Tahsildar has recorded the statement on 21/10/2006 vide Ex. P-5 where father of the deceased has stated the demand of money and series of incidents took place before the death of his daughter. Statement of the PW5 Ramanand Patel is corroborated by his previous statement Ex. P-5 recorded by Tahsildar and from other witnesses, PW1 Kotwar-Melandas, PW6 Mongarabai, PW7 Nandlal Verma, PW8 Sahodrabai , PW9 Ramlal Marar, PW10 Paretram and PW11 Gajanand there are some discrepancy, contradiction and omission in their previous statement and with the statement of other witnesses. The witnesses are villagers they have substantially deposed against the appellants. Statement recorded u/s 161 of the Code is a brief, statement does not take place of detail evidence given during the trial in the Court. In the present case PW5 Ramanand Patel father of the deceased has categorically deposed that on 17/10/06 appellant No. 2 demanded Rs. 20,000/- for construction of his house on second day 18/10/06 her daughter came to his house and again repeated the demand and told that she has been sent for getting money.
17. On 18/10/06 at evening present appellant No. 2 himself came to the house of father of the deceased where he repeated demand. Father of the deceased along with other persons went to house of the appellants along with appellant No. 2 and deceased where they stayed in the night, they took meal and after taking tea in the morning they went back to their village. On same day at about 5. 30 deceased committed suicide by consuming poison when PW5 Ramanand Patel came to know of the fact of commission of suicide then he went to the village of appellants not alone but with other 30-40 persons he saw the dead body of his daughter and went to the Police Station along with Kotwar for lodging the report where Kotwar has lodged the report. Autopsy report and statement of PW22 Dr. Rajendra Maheshwari reveal that froth and blood were coming out from both the nostrils, light swelling were present over face. One abrasion 3 c.m. x 2 c.m. was found over the left side of the face. She was carrying pregnancy 6-8 weeks. PW5 Ramanand Patel has also deposed in his evidence blood were coming out from her nostril and symptoms of pressing neck was also present. Blood from the nostrils and abrasion over the face were visible and these symptoms caused doubt upon her normal death. Symptoms relating to pressing neck has not been supported by the medical evidence same is exaggerated, when there was no abnormal circumstances then there was no propriety to accompany the appellant No. 2 and the deceased by her father and other 3 persons and to stay in the house of the appellants. These circumstances are sufficient for drawing the inference of abnormal circumstances which the father of deceased want to pacify therefore he accompanied along with other responsible persons and also stayed at night to take proper and ample opportunity to pacify the situation and when according to him the situation became normal then he came back to his house and same day deceased committed suicide.
18. As held in case of Appasaheb (Supra) the demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry. In the present case the demand of Rs. 20,000/- for construction of the house may be with condition of repay or not cannot be termed as a demand of dowry. The evidence adduced on behalf of the prosecution clearly shows that appellants have demand money for construction of work and not in terms of dowry therefore it cannot be inferred that appellant has demanded dowry.
19. In the case of domestic violence or harassment normally the affected person i.e. daughter -in-law does not report or inform anyone about the harassment or torturous attitude of her husband or in -laws to other persons but as and when she gets the opportunity, she informs about it to her parents. The parents of the bride normally do not react immediately but wait for an appropriate time, in the hope of amicable settlement between the parties and to avoid further complications which may arise in future. But when the matter becomes intolerable then the daughter-in-law or the affected lady discloses the torturous attitude of her husband and in- laws, to the police, neighbour and other persons related to her to get the dispute resolved with their intervention.
20. In such case specific instance of harassment & torture is not possible and after the death of bride the details of harassment & torture is also not possible, but it may be inferred from the evidence of parents & other relatives of the deceased and the circumstances that the deceased was subjected to harassment & torture.
21. In the present case deceased was carrying pregnancy of 6-8 weeks and thereby not only she has killed her life but also stopped the birth of her own child. It was not a normal step taken by her and it was not possible for her to take drastic step for ending her life even during pregnancy.
22. Statement of father of the deceased PW5 Ramanand Patel corroborated by the statement of independent witnesses statement recorded by the Tahsildar vide Ex. P-5 in which Ramanand Patel has categorically deposed that on 17/10/06 appellant No. 2 demanded Rs. 20,000/-. On 18/10/06 appellant sent the deceased for bringing Rs. 20,000/- from him, appellant No. 2 also visited maternal house of the deceased for taking money. On 19/10/06 father of the deceased and other persons along with deceased, appellant No. 2 came to the house of the appellant No. 2 where PW5 Ramanand Patel along with other persons stayed in the house of the appellants and on 20/10/06 he went back along with other persons and on very day at evening deceased committed suicide by consuming poison the aforesaid circumstances are linked and closed to each other and are sufficient to give rice the presumption that within 3 days appellants compelled the deceased for brining Rs. 20,000/- from her maternal house and failing such on same day she committed suicide these circumstances are completely against the appellants and sufficient to give rise the presumption that appellant are man who has committed cruelty and torture upon the deceased and as a result of such torture and cruelty she committed suicide.
23. Section 113(A) of the Evidence Act provides for presumption as to abatement of suicide by a married women and makes the provisions that Court may presume having regard to all other circumstances of the case that such suicide has been abated by husband or by such relatives of her husband.
24. In the present case evidence adduced on behalf of the prosecution is sufficient for drawing the inference in terms of Section 113(A) of the Evidence Act that appellants have committed cruelty and torture upon the deceased who was wife of appellant No. 1 and daughter in law of appellant No. 2 as a result of such cruelty and torture deceased had taken drastic steps of ending her life specially when she was carrying the pregnancy of 6-8 weeks. After appreciating the evidence available on record learned Courts below has convicted and sentenced the appellants as aforementioned. Conviction of the appellants are based on credible and clinching evidence sustainable under the law.
25. As regard the question of sentence is concerned present appellants have been sentenced under Sections 498-A/34 and 306/34 of the Indian Penal Code and sentenced rigorous imprisonment for 3 years with fine of Rs. 500/- in default of payment of fine amount, to further undergo rigorous imprisonment for 3 months to each appellants and rigorous imprisonment for 7 years with fine of Rs. 500/- in default of payment of fine amount, to further undergo rigorous imprisonment for 3 months to each appellants. Taking into consideration the commission of suicide within 8 months of her marriage of the woman aged about 22 years who was pregnant at the time of such commission of the suicide. The present appellants does not deserves any sympathy in the sentence imposed upon them. Consequently, this criminal appeal is liable to be dismissed and it is hereby dismissed.
