Judgment:
R.S. Garg, J.
1. This judgment shall also dispose of Criminal Appeal No. 892/94, Manohar v. State of M.P. and Criminal Appeal No. 893/94, Onkar v. State of M.P.
2. The three appellants have been convicted by the IIIrd Addl. Sessions Judge, Sagar in Sessions Trial No. 69/93 for having committed offence punishable under Section 498A and Section 306, IPC. The learned Trial Court was pleased to award sentence of two years R.I. and fine of Rs. 200/-, in default of payment of fine to undergo R.I. for one month under Section 498A and also convicted each of the accused under Section 306, IPC and sentenced them to undergo R.I. for seven years and pay fine of Rs. 200/-, in default of payment of fine, the accused were required to undergo one month's R.I. Being aggrieved by the said conviction and the sentence each of the accused has preferred a separate appeal from jail.
3. The prosecution case, in brief, is that the deceased Rukmanbai was married to the accused within seven years of her un-natural death. The accused persons were demanding Rs. 5,000/- and auto-vehicle as dowry, but as the parents of the girl could not meet the demand, they extended cruel treatment to the deceased. Being aggrieved by the behaviour of the accused persons and as the cruelty was beyond tolerance, the said Rukmanbai committed suicide on 28.11.92 by setting fire to herself. The prosecution case further is that on 28.11.92, at about 11 a.m., the deceased set fire to herself and committed suicide. The matter was reported to Police Station, Kotwali. The body was sent for autopsy, spot map was prepared, various articles were seized. Statements of the witnesses were recorded and after completing the investigation, the police filed the charge-sheet against the accused persons under Sections 498A, 306 and 304B, IPC. The accused persons denied commission of the offence and submitted before the Court below that they were falsely implicated. The defence was that as the deceased was suffering with serious backache, she decided to commit suicide. The learned Trial Court, recorded the evidence of the parties and after hearing them, came to the conclusion that the prosecution failed to make out the case under Section 304B. It accordingly acquitted the accused of the said charge. The Trial Court was pleased to hold that prosecution was successful in proving the ingredients of offences under Sections 498A and 306, IPC, it accordingly convicted the accused persons and awarded the sentence as referred to above.
4. Miss Singhai, learned Counsel for the appellants submitted that the incident took place on 28.11.92, but the investigation started only after 18.12.92, therefore, it must be presumed that the police did not find commission of any offence prima facie. She further submits that the evidence on record shows that the marriage took place in a congregation and no demand of dowry was ever made either at the time of the marriage or subsequent thereto, therefore, and even otherwise charge under Sections 498A and 306, IPC is not made out. It is also submitted by her that witnesses have clearly admitted that demand of the dowry was never made and there is no positive legal evidence on record to show or suggest that the deceased was ever treated with cruelty which led to her suicide. She submits that acquittal under Section 304B would lead to the irresistible conclusion that the accused persons did not commit any act which compelled the deceased to move on the path of the suicide.
5. On the other hand, Mr. Gupta, learned Government Advocate submits that acquittal under Section 304B would only mean that there was no demand of dowry or the death was not a dowry death, but it would not mean that the accused persons did not treat the deceased with cruelty or did not create a situation or did not abet the offence of commission of suicide.
6. From the statement of PW 1 Deendayal, brother of the deceased, it is clear that at the time of the marriage or subsequernt thereto, even upto the time of the death no dowry was demanded from this witness. According to the witness the marriage was performed in a Sammelan (congregation). He only suggests that about 15/45 days prior to the death, the deceased had informed him that the husband and the other two were demanding dowry and were treating her with cruelty. From his statement, it does not appear that he had taken any steps for lodging a report or ever talked with the accused persons regarding their illegal demand or ever asked them not to treat the deceased with cruelty. From his statement, it only spells out that the accused on one occasion had beaten the deceased.
7. PW 2 Khemchand is the father of the deceased. According to him, just fifteen days prior to the death, the deceased had informed him that she was beaten by the accused persons and the accused were demanding dowry. He plainly admits that at the time of the marriage or subsequent thereto the dowry was not de- manded. From his statement, it can only be held that some time prior to the date of death, the deceased had informed that the accused were demanding dowry and had beaten her. PW 3 Bhagwandas who is the uncle of the deceased says that about four months prior to the date of the death, the deceased has come to his house and informed him that the accused persons were demanding dowry and had beaten her badly. According to the witness, he had seen the injury marks on the person of the deceased. The statement of this witness has been condemned by the learned Counsel for the appellants that he being a near relation was required to take immediate steps and was also required to inform the father of the deceased that his daughter was subjected to cruelty and demand of dowry was raised. From the statement of PW 3 Bhagwandas, it does not appear that immediately after getting the information from the deceased herself, he ever met with the accused persons and talked on the subject with them or he ever informed of the incident to the parents of the girl. PW 2 Khemchand does not say anything about this incident. He does not say that Bhagwandas ever narrated of this incident to him.
8. Mr. Gupta submits that Bhagwandas being a reponsible member of the family and a close relation of the deceased thought that the matter may be settled between the husband and wife and as such he did not proceed further with it. Mr. Gupta submits that even if Bhagwandas did not narrate the story to Khemchand, it would not make him unreliable. I am not inclined to accept the argument of the learned Government Advocate. When a young girl of the family makes a report of demand of dowry and cruel treatment under the. hands of the in-laws it is not an ordinary matter, but is a subject matter of concern for all. If the uncle does not take care of the subject properly, it only has to be understood that he was either absolutely negligent as senior relation or was making a statement as an after-thought. In the instant case, from the statement of Bhagwandas, it is clear that immediately after receiving the information and seeing the condition of the girl, he did not take any step. In the evening when the husband of the deceased came he simply sent the girl with the husband. He even does not say that he asked the husband or any other in-law to behave in a proper manner or not to subject the girl with cruelty. It also does not appear from his statement that subsequent to the information, he ever informed of the same to the other relatives or took any steps. In my opinion, the witness cannot be relied upon.
9. PW 4 Maharani is the aunt of the deceased. She does not say anything against the accused persons. PW 5 Bharoprasad is the husband of accused Kusumrani and father of the other two. He had lodged the report. He has clearly stated that the girl was never subjected to cruelty nor any demand of dowry was made. His statement has been rejected by the lower Court only on the ground that he being husband and father of the accused he was interested in saving them, therefore, made such reserved statement. It is to be noted that this witness was not declared hostile. His statement alone may not be sufficient to discredit the entire case of the prosecution, but it would certainly make a crevice in the case of the prosecution. The other witnesses are in relation to the panchnamas, seizures, recoveries and the autopsy.
10. Section 304B states that where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband for or in connection with any demand for dowry, such death shall be called 'dowry death', and such husband or relative shall be deemed to have caused her death. The learned Trial Court in its wisdom came to the conclusion that the prosecution failed to prove commission of the offence punishable under Section 304B. The learned Judge was of the opinion that the prosecution failed to prove that there was any demand of dowry. The effect of acquittal under Section 304B will have to be seen while considering the case under Section 498A and Section 306, IPC. Section 498A reads that whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. For the purposes of the Section, cruelty means any wilful 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 of the woman. Clause (b) of the explanation provides that cruelty means 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. Because of the acquittal recorded under Section 304B, Clause (b) of the explanation shall not be applicable because the Court below has already found that there was no demand of dowry and there was no cruel treatment because of the dowry demand.
11. Section 306 reads that 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. The cruelty extended under Section 498A must be of such a nature which is likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman. If there is any other cruelty which does not lead or drive the woman to commit suicide, then Section 306 would not be applicable. For the attraction of Section 306, IPC, the prosecution must prove that somebody abetted the commission of such suicide. In the instant case, from the statement of PW 1 Deendayal and PW 2 Khemchand, it only appears that on some occasion the girl was treated with cruelty. At this stage, because of the acquittal of the accused under Section 304B, it cannot be held that she was subjected to cruelty in relation to demand of dowry. Section 498A when defines cruelty in different terms, the Court must be precautious in applying the said provisions of law. If the statement merely shows that the girl was beaten on some occasion, it would not mean that she was subjected to cruelty amounting to abetment. That beating or cruelty should be a wilful conduct on the part of the accused which is of such a nature which is not only likely to drive the woman to commit suicide, but amounts to abetment for commission of the suicide. For attraction of Section 306, the Court must be satisfied that the accused persons by their conduct created such an inhuman situation or were subjecting the deceased to such cruelty which amounted to abetment and led to the death either in unnatural form or as a suicide. The evidence available on record does not meet the standard or proof required by the law. The convictions of the accused persons recorded under Section 306, in the opinion of this Court are certainly wrong. Those deserve to and are accordingly set aside.
12. So far as Section 498A is concerned, from the evidence of PW 1 Deenadyal and PW 2 Khemchand, it is clear that the girl was beaten on some occasion. From this statement, it can safely be held mat the accused persons were rightly convicted under Section 498A. The sentence awarded to the accused persons under Section 498A is maintained. It appears that the accused persons are in jail from the date of recording their conviction by the Trial Court. The Trial Court had taken them in custody on 2.11.93. The sentence awarded to them under Section 498A is two years' R.I. and fine of Rs. 200/-, in default of payment of fine they are required to undergo for one month's R.I. The period already undergone by the accused would not only meet the substantive sentence, but would also show that the default sentence has also been undergone by them. The appeal of each of the accused is partly allowed. Their conviction recorded under Section 306, IPC is set aside, but the conviction and sentence recorded for commission of offence under Section 498A are maintained.
13. The Registrar is directed to make the payment to the learned Counsel in each of the case separately as these are three different appeals.