F.C. Bansal, J.
1. The appeal No. 1691/2003 has been filed by accused-appellant Suresh Kumar @ Sushil Yadav against the judgment and order dated 22.11.2003 passed by the learned Additional Sessions Judge Fast Track No. 2, Jaipur City, Jaipur whereby while acquitting the accused-appellant of the charge under Section 304B IPC, convicted him under Sections 498A and 306 IPC and sentenced to suffer R.I. for two years and a fine of Rs. 1,000/-, in default of payment of fine to further undergo S.I. for one month and R.I. for five years and a fine of Rs. 2,000/-, in default of payment of fine to further undergo S.I. for two months respectively. Both the substantive sentences were ordered to run concurrently. Against the same judgment by which accused Suresh has been acquitted from the charge under Section 304B IPC, complainant Ram Lal Yadav has filed a Criminal Revision Petition No. 1389/2003. Both the appeal and the revision petition have been heard together and are being disposed of by this common judgment.
2. Briefly stated the facts of the prosecution case are that on 1.11.2000, Ramlal Yadav S/o Shri Narayan Yadav, R/o village Kishorepura, submitted a written report Ex.Pl at P.S. Vaishali Nagar, Jaipur wherein it was, interalia, stated that his younger sister Raju was married to Suresh Yadav S/o Shri Sohan Lal Yadav, R/o Heerapura, Ajmer Road, Jaipur during her childhood and she had been residing at her father's house since her marriage. Her 'Gona' the ceremony of taking bride to her husband's house for the first time after marriage took place around 3-4 months prior to the incident and she was sent to her 'Sasural' along with her husband Suresh. At the time of 'Gona', Suresh and his mother demanded Rs. one lac and 'Hero Honda' motor-cycle in dowry but they expressed their liability in this regard. Thereafter and before her death Raju had come to her parental house for 1-2 days and at that time she told the family members that her husband Suresh and mother-in-law had again asked her to bring Rs. one lac and one motor-cycle from her father. It was further told by her that in connection with this demand, she had been beaten by her husband and mother-in-law. It was further stated in Ex.Pl by Ramlal that her elder sister Lada was married to Ramu who was elder brother of Suresh. Ramu expired and since his death Lada had been living in Heerapura. Lada also told them that Suresh and his mother-in-law had been harassing Raju in connection with the demand of Rs. one lac and motor-cycle. It was also stated in Ex.Pl that when Raju came at her house on 'Deepawali' she again told them that she had been beaten and threatened to kill by Suresh and his mother in connection with the demand of said dowry. Today they were informed that Raju had been admitted in S.M.S. Hospital whereupon he went to the hospital where he got the information of Raju's death due to administration of poison. It was also stated in the report Ex.P1 that before 'Gona' ceremony, Suresh had obtained an ex-party decree of divorce against Raju which she got set-aside and thereafter with the intervention of some persons, Raju and Suresh arrived at a compromise and 'Gona' ceremony was solemnised and Raju was sent with Suresh. Suspicion of Raju's murder by administration of poison by Suresh and his mother was also expressed by Ramlal in Ex.P1. On the basis of the written report Ex.P1, SHO, P.S. Vaishali Nagar, Jaipur registered the FIR under Section 304B and 498A IPC and investigated the case. After completion of investigation, charge-sheet was filed in the Court, of Additional Chief Judicial Magistrate No. 1, Jaipur City against accused- appellant Suresh Kumar. In due course, the file was received in the Court of Additional Sessions Judge, Jaipur City.
3. Learned Additional Sessions Judge framed charges under Sections 498A and 304B IPC against the accused-appellant who denied the charges and claimed to be tried. To prove these charges, the prosecution examined as many as 22 witnesses. In his statement recorded under Section 313 Cr.P.C., the appellant pleaded innocence and natural death of his wife. In defence he examined DW1 Seduram, DW2 Gopal Sharma, DW3 Ravi Prakash Sharma, DW4 Smt. Dhapa, DWS' Madan Lal, DW6 Babulal and DW7 Suresh Yadav.
4. The learned Additional Sessions Judge after hearing the final submissions of both the parties, convicted and sentenced the accused-appellant as indicated here-in-above.
5. I have heard learned Counsel for the accused-appellant, learned Public Prosecutor appearing for the State as well as learned Counsel for the complainant and have also scanned and scrutinized the material on record.
6. The first contention of the learned Counsel appearing for the accused-appellant that the death of Smt. Raju was accidental, has no force. On post-mortem examination no injury was found on the dead body of Smt. Raju. As per the statement of PW19 Dr. Shiv Ratan Kochar, opinion about the cause of death was kept reserved till the receipt of histopathological and chemical analysis report. There is a report of S.F.S.L. Ex.P9 on record which states that on chemical examination of the portions of viscera and blood samples gave positive tests for the presence of organo-phosphorus insecticide. Dr. Kochar also expressed the same opinion after receipt of Ex.P9. It means that Smt. Raju had consumed some insecticide which caused her death and, therefore, the prosecution has succeeded in proving that Smt. Raju committed suicide by consuming insecticide.
7. Learned Counsel further contended that the conviction under Section 306 of the Penal Code is not sustainable in law. It was also submitted that there is no evidence on record to prove the offence under Section 498A IPC and, therefore, the appeal be allowed.
8. Learned Public Prosecutor appearing for the State and learned Counsel for the complainant have supported the impugned judgment.
9. The provisions of Section 306 and Section 107 of the Penal Code will be required to be carefully scrutinized to appreciate the rival contentions. Section 306 and 107 IPC read thus:-
'306. Abetment of suicide: If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
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 or illegal omission, the doing of that thing.'
10. In order to sustain conviction under Section 306 IPC, it must, therefore, be proved by the prosecution that there was abetment of suicide. According to the allegations of the complainant and the case of the prosecution, the deceased was instigated to commit suicide by constant harassment in connection with demand of Rs. one lac and motor-cycle by the appellant and his mother.
11. As to what would constitute instigation for the commission of an offence would depend upon the facts of each case. Therefore, in order to decide whether a person has abetted by instigation the commission of an offence or not, the act of abetment has to be judged in the conspectus of the entire facts of the case. Now, the most important question that arises for consideration in the present case is whether by his act and deeds the accused-appellant has made that situation which resulted in the commission of suicide by the deceased or not or in other words, whether the accused-appellant abetted the commission of suicide by the deceased or not.
12. PW1 Ramlal complainant, who is the brother of the deceased was examined on 2.11.2001 by the Trial Court. He deposed that Raju was married to appellant Suresh 22-23 years ago. At the time of her marriage she was 4-5 years old. 'Gona' of deceased Raju took place about 1-1/2 years ago. He further stated that at the time of 'Gona', appellant Suresh and his mother demanded Rs. one lac in cash and one motor-cycle but they did not give cash and motor-cycle. After 'Gona', when deceased Raju came at their home she told them that the appellant and his mother were making the aforesaid demand whereupon he went to Heerapura where the appellant and his mother told him that in case Rs. one lac and motor-cycle are not given to them, they would kill Smt. Raju. Both the appellant and his mother abused him and beat the deceased. It was also stated by PW1 Ramlal that his sister Lado @ Lada also told them that the appellant and his mother used to beat Smt. Raju for demand of Rs. one lac and motor-cycle. Lastly and before her death, Raju came at their home on 'Deepawali' and returned to her inlaws' village with her younger brother Kana. On return from Heerapura, Kana informed them that the appellant and his mother had beaten the deceased in connection with the demand of Rs. one lac and motor-cycle.
13. PW3 Smt. Bhoori, who is the mother of the deceased, stated in her deposition that marriage of her daughter Raju with the appellant took place around 15 years ago. She further stated that at the time of 'Gona', Rs. one lac were demanded by the appellant.
14. PW4 Kanaram, the brother of the deceased, deposed that deceased Raju was married to the appellant about 15 years ago and 'Gona' took place before four months of her death. He further stated that he went to Raju's 'Sasural' to drop Raju. The appellant and his mother made a demand of Rs. one lac and 'Hero- Honda' motor-cycle.
15. PW5 Smt. Lada, who is sister of the deceased, stated that the appellant and his mother used to demand Rs. one lac and motor-cycle and beat her.
16. As per the testimony of PW6 Guman Singh and PW7 Ramu, the appellant had made a demand of Rs. one lac and 'Hero-Honda' motor-cycle at the time of 'Gona' ceremony.
17. PW8 Narayan, who is father of the deceased, stated that after 'Gona', deceased Raju used to tell them that her husband and mother-in-law were demanding Rs. one lac and 'Hero-Honda' motor-cycle and beat her.
18. PW9 Smt. Phooli, sister of deceased, has made the similar statement. The remaining witnesses have stated nothing against the appellant in regard to demand of Rs. one lac and motor-cycle.
19. As per the testimony of PW1 Ramlal, at the time of 'Gona' ceremony when the appellant made a demand of Rs. one lac and motor-cycle, Jetharam @ Jetaram, Ramu, Moharilal, Laxman, Madan, Mukesh and Ladu were present but PW11 Jetaram and PW13 Moharilal have not corroborated the version of PW1 Ramlal. PW13 Moharilal deposed that at the time of 'Gona' ceremony no demand of Rs. one lac and motor-cycle was made by the appellant. PW11 Jetaram stated nothing against the appellant in regard to alleged demand of cash and motor-cycle. PW8 Narayan father of the deceased did not state that at the time of 'Gona', the appellant made a demand of Rs. one lac and motor-cycle. In view of the testimony of the father of the deceased, I have come to the conclusion that no demand of cash and motor-cycle was ever made by the appellant. It was not stated by PW1 Ramlal in his police statement Ex.D10 that the appellant and his mother told him that in case Rs. one lac and motor-cycle were not given to them, they would kill Smt. Raju. It was also not stated by him that the deceased was beaten by the appellant in his presence. In her police statement Ex.D1, PW3 Smt. Bhoori mother of the deceased stated that
20. In view of this statement, no reliance can be placed on the testimony of PW3 Smt. Bhoori. PW4 Kanaram also stated in his police statement Ex.D2 that no demand was made by the appellant and his mother Chhoti at the time of 'Gona' ceremony. It was not stated by him in Ex.D2 that the appellant and his mother Chhoti Devi had made a demand of Rs. one lac and 'Hero-Honda' motor- cycle before him. PW5 Smt. Lada stated in her police statement Ex.D5 that
PW7 Ramu did not state in her police statement Ex.D5 that the appellant had ever made a demand of Rs. One lac and 'Hero-Honda' motor-cycle. It was not stated by PW9 Smt. Phooli in her police statement Ex.D7 that the appellant had made a demand of Rs. one lac and a motor-cycle and in connection with this demand he used to harass his wife. Thus in view of their previous statements, their testimony before the Trial Court appears to be untrustworthy.
21. As per the statement of PW6 Guman Singh, 'Gona' ceremony of the deceased took place after about two years of her marriage. But as per the prosecution case, 'Gona' ceremony took place after 20 years of the marriage. Thus, I have come to the conclusion that the testimony, of Guman Singh also is not credible and trustworthy.
22. That apart, PW2 Satyanarain has stated that the behaviour of the appellant with the deceased was good and he never made a demand of dowry from his wife or her family. PW10 Shrawanlal has stated that it is wrong to say that the appellant had been harassing the deceased for dowry. PW12 Hanuman also deposed that the appellant never demanded cash and motor-cycle. Same is the statement of PW14 Banshilal. PW18 Munni Devi has deposed that the appellant never beat and harassed his wife for dowry.
23. Thus, I have come to the conclusion that the prosecution has failed to prove that deceased Raju was subjected to cruelty or harassment by the appellant in connection with the demand of dowry. The statements of PW1 Ramlal, PW3 Smt. Bhoori, PW4 Kanaram, PW5 Smt. Lada, PW6 Guman Singh, PW8 Narayan and PW9 Smt. Phooli are inconsistent, contradictory and unreliable.
24. The Hon'ble Supreme Court in State of Bengal v. Orilal Jaiswal, : 1994CriLJ2104 has held that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the Court that a victim committing suicide was hyper-sensitive to ordinary petulance discord and differences in domestic life quite common to the society to which the victim belonged and such petulance discord and difference were not expected to induce a similarly circumstance individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.
25. In the instant case, the prosecution has failed to prove that the alleged cruelty meted out to the victim in connection with the demand of dowry had in fact induced her to end the life by committing suicide. It would be pertinent to mention here that presumption under Section 113A of the Indian Evidence Act cannot be taken as the marriage of the deceased was not solemnised within a period of seven years before her death.
26. In Heera Ram v. State, 2000 Cr.L.R. Raj. 505, this Court has held that:-
'In the instant case, marriage has come into being beyond the period of seven years. The argument of learned Counsel for the petitioner is that 'Muklava' had taken place subsequently. This should be taken to be the date of marriage for the purposive interpretation of Sections. 304B and 113A. 'Muklava' has not been included in Section 5 of the Act to be a necessary ingredient of marriage. It has also not been alleged and established that by custom 'Muklava' is the marriage. While considering penal consequences, the law has to be construed strictly.
The definition of marriage as mentioned in Section 304B IPC and Section 113 of the Evidence Act, has to derive its interpretation in the light of the theory of strict interpretation. The purposive interpretation of law which the learned Counsel for the petitioner wants to raise is not germane in the instant case.
Learned Counsel for the petitioner has relied on a decision of this Court in the case of Zmil v. State of Rajasthan, 1998 2 RCC 164 wherein the learned Single Judge has relied upon a contingency of Mohammedan Law. Suffice it to say in Mohammedan Law, the marriage is considered as to be a contract and not a sacrament ceremony. The analogy drawn by the learned Single Judge after considering the tenements of Mohammedan Law is against the fundamental principles as laid down in Hindu Law. It runs contrary to the interpretation of the solemnisation of marriage in view of the aforesaid Supreme Court decisions.
On plain reading of the Apex Court Decisions in the case of BhaUrao Shanker Lokhande : 1965CriLJ544 , this Court feels that the decision of the learned Single Judge based on such principles which is not relevant to decide a dispute in Hindu Law. In this view of the matter, the argument that the date of marriage from its solemnisation should not be reckoned as to be the date of marriage but it should be reckoned from the date of 'Muklava' cannot be considered valid.'
27. For the reasons stated above, it is held that the prosecution has failed to prove that the accused-appellant abetted the commission of suicide by the deceased on the fateful day and the deceased was subjected to cruelty In connection with the demand of dowry and thus, the findings of the learned trial Judge, convicting the accused-appellant for the offences under Sections 306 and 498A IPC are liable to be set-aside and this appeal deserves to be allowed and the appellant Is entitled to acquittal.
28. So far as the revision filed by the complainant is concerned, the prosecution has utterly failed to prove that the death of deceased Raju occurred within seven years of her marriage and soon before her death she was subjected to cruelty or harassment in connection with the demand of dowry and, thus, the Trial Court has committed no error in extending the benefit of acquittal to the appellant for the offence under Section 304-B IPC and the present revision petition deserves to be dismissed.
29. In the result, the appeal of accused-appellant Suresh Kumar @ Sushil is allowed. While setting-aside the impugned judgment dated 22.11.2003 passed by the learned Additional Sessions Judge Fast Track No. 2, Jaipur City, Jaipur, he is acquitted of the charges under Sections 306 and 498A of the Indian Penal Code. He is in jail. He shall be released forthwith, if not wanted in any other case.
The revision petition filed by complainant-petitioner Ram Lal Yadav is dismissed.