D.M. Dharmadhikari, J.
1. Despite stringent laws and provisions for deter- rent punishments in them, crimes against women could not be contained because of absence of change in attitude of society towards women and the curse of age-old vicious customs.
2. In this case, the victim is a graduate married young girl Sushma Gupta who was found dead with extensive burns all over her body and eight injuries on her person. She has left behind her child Dheeraj, only aged about one year at the time of her death.
3. Deceased Sushma was daughter of Amarnath Gupta (P.W. 4) who is an Advocate at Allahabad. Ravi Gupta and Rajesh Gupta (P.W. 11) are her brothers. Nirmala (P.W. 5), Manjula (P.W. 6) and Sarla (P.W. 14) are her sisters. Nathulal Gupta (P.W. 15) is the husband of Sarla and is brother-in-law of the deceased.
4. Sushma was married to Pankaj Gupta (appellant No. 2) on 2nd of February, 1987. He is son of Ram Vishnu Gupta (appellant No. 1) who is an Advocate practising at Shahdol. Accused-appellant No. 3 Kusumlata is the wife of Ram Vishnu Gupta and is mother-in-law of the deceased. Ram Vishnu Gupta lives in three-storeyed house of which ground floor is used by the members of the family consisting of himself, his wife, his son (i.e., the three appellants) and two daughters. The ground floor of the house is used for living and in the front portion facing the road there is a shop of furniture run by Pankaj Gupta, husband of the deceased. The first floor of the house is used for running a lodge in the name of Ajanta Lodge in which there were inmates in different rooms. The top most portion of the house i.e. third floor is used for a school. The house is located in an inhabited area. Deceased Sushma gave birth to the child Dheeraj on 7.9.1988.
5. In the intervening night of 7th and 8th of October, 1989 which, accordingly to the witnesses, was auspicious festival day of Durgashtami, at or after mid-night Sushma met her death with burns and injuries on her body. Her father-in-law appellant Ram Vishnu Gupta got recorded a Merg intimation in Police Station, Shahdol in the early hours at about 4.00 on 8.10.1989. In the report it has been informed to police that his son Pankaj woke up with the cries of the child at 3.30 in the morning. He then got up to find that Sushma was not in the bed room. They all searched her in the house and found that the door leading to toilet was open but she was not found in the toilet. They then found that the store room of the house was closed from inside. They thereafter used torch to find that in the store room Sushma was lying dead. According to the informer, accused Ram Vishnu Guptd, she committed suicide by setting herself ablaze.
6. On receiving intimation on telephone through one of his relations, sent by the husband of the deceased, Amarnath Gupta, father of the deceased came to Shahdol from Allahabad and lodged a report (Ex. P/2) on 8.10.1989 some time in the evening. In the written report lodged by the father of the deceased it was complained that the accused persons were not happy and satisfied with the marriage function and for that reason they tormented and treated Sushma with cruelty. The father raised a doubt that his daughter had either been killed by putting her to fire or she had been so much tormented as to lead her to commit suicide.
7. The Investigation Officer of Police Station Shahdol Shailendra Pratap Singh (P.W. 16), Sub Inspector, on receiving the Merg intimation from the father-in-law of the deceased, went to the place of incident and prepared an inquest memo (Ex. P/15). A tin of kerosene, a match-box, pieces of broken bangles, torn pieces of red blouse and sari and pieces of burnt part of the skin found in the store room where the dead body was lying were seized under seizure memo Ex. P/25. An alleged suicidal note on the letter-head of Lions Club, Chhatarpur was found underneath the pillow on the bed of the deceased. It has been mentioned that it contained a death-note stating that T am committing suicide at my own will and no one should be held guilty for the same'. The seizure memo of the suicidal note is Ex. P/26. Three inland letters dated 23.6.1989, 30.6.1989 and 14.7.1988 were also seized under seizure memo Ex. P/27. Two more letters were seized under Ex. P/28 and Ex. P/ 29 of which the first one dated 23.6.1989 was written by Alpana Gupta, daughter of accused Ram Vishnu Gupta to Amarnath Gupta, father of the deceased. The second letter (Ex: P/29) is by accused Pankaj Gupta to the deceased dated 30.6.1989.
8. Autopsy Surgeon Dr. Om Prakas Choudhary (P.W. 9) proved his post- mortem report (Ex. P/6) to show conditions the dead body of the deceased. He found on her head five injuries described as contusions of different dimensions and three injuries of different dimensions described as contusions in waist, groin and ankle. It is necessary and important to reproduce the full descriptions of the condition of the dead body and the injuries found thereon:
'Young female lying supine with all the four limbs semi-flexed. Both hands flexed, finger flexed. Head straight. Almost entire body is burnt from head to toe except lower portion of abdomen and some part of lower part of back. Smell of kerosene oil coming from body and clothes, eyes semi open, tongue caught between teeth. Charring is present at places and bubbles are also present at other parts of body, which contained fluid. The base of bubbles was red, skin is peeled off at places leaving reddish areas, singing of scalp hair and pubic hair present, six bangles were present over right wrist, one on the left.
Following injuries present over body-
(1) contusion 1' x 1' over right fronto parietal region of scalp;
(2) contusion 2' x 1' over left parietal occipital region of scalp;
(3) contusion 1' x 1' over fronto parietal region of scalp;
(4) contusion 1' x 1' over left parietal region of scalp;
(5) contusion 2' x 1 1/2' over left occipital region of scalp;
(6) contusion 2' x 2' size on the right side of lumber region of scalp;
(7) contusion 1' x 1' size on the upper part of groin right side;
(8) contusion 1' x 1' over right ankle.
All contusions are red, on dissection underlying tissues showed ecchymosis and haemorrhage.'
The autopsy surgeon also found in the stomach semi-solid food to indicate that the deceased must have died after she had taken her night meals. In the opinion of the doctor, all the injuries found on her body were caused by hard and blunt object and were ante-mortem in nature. In his opinion, the cause of death was asphyxia and shock caused by extensive burns.
9. A spot map was prepared in the course of investigation showing the situation of the house, the different rooms in which the inmates of the house were sleeping and the location of the store room in which the deceased was found dead.
10. The alleged suicidal note found underneath the pillow of the bed of deceased Sushma was sent for opinion of the handwriting expert to Bhopal with two of her admitted writings. On comparison of the disputed writing in the suicidal note with the admitted writing sent for comparison, the handwriting expert M.N. Pandey, who is the Additional State Examiner of Questioned Documents, Madhya Pradesh, Bhopal, submitted a report Ex. P/32 opining that the disputed writing is similar in characteristics to the admitted writing of the deceased.
11. Surprisingly, the alleged suicidal note recovered, seized and sent to handwriting expert for his opinion has not been produced in the trial. Prosecution alleges its disappearance to the accused and the accused criticised the prosecution for suppression of such vital piece of evidence which according to them would have conclusively established the suicidal death of the deceased.
12. Apart from the evidence of father, brother-in-law, brother and sisters, named above, of the deceased, the prosecution examined Shravan Kumar Gupta (P.W. 2), the alleged mediator in the marriage, to prove that the accused suffered cruel and ill-treatment from the accused and was leading an unhappy married life. The prosecution also examined Dr. S.P. Singh (P.W. 8) who is Legal Scientific Assistant posted at Shahdol on the police mobile van to assist the investigation. According to this witness, he went on a spot inspection of the alleged place of crime and submitted his report (Ex. P/5). Alongwith his report, he has annexed a sketch map of the shop and dimension of the store room and results of his experiment that the bolt on the upper portion of the door of the store room could be operated and closed with a loop of rope from outside through the ventilator.
13. The defence of the accused person is that Sushma having come from a different family background was feeling ill-at-ease in her married life at Shahdol. She was particularly unhappy because she was not permitted to move out of the house all alone. On the fateful day she insisted on her husband in the night to take her out for Durgashtami Devi Darshan and to see illumination in the town. The husband states that being fatigued at that hour and the child being in fever he refused to take her in the night for outing. The husband-wife quarrelled on the issue and it appears that in the night when all the members in the house were sleeping she went inside the store room, closed it from inside and burnt herself to death by committing suicide. The above defence has been specifically taken by the husband Pankaj and the two other accused in their statements under Section 313, Criminal Procedure Code.
14. The learned Trial Judge, i.e. the Ilnd Additional Sessions Judge, Shahdol by his judgment dated 1st February, 1994, on detailed appreciation of the evidence on record, came to the conclusion that the medical and circumstantial evidence on record was sufficient to hold that Sushma was first given a beating and when she fell unconscious was put to fire in the store room. In order to make out a case of suicide, Ram Vishnu Gupta who is an Advocate practising on the criminal side got the door of the store room closed from inside by operating its bolt from outside and made a false report to the police of a suicidal death. The suicide note was also not relied upon by the learned Trial Judge saying that after seizure it was shown by the police to Amarnath Gupta, father of the deceased who saw her signature on the note but denied that the contents of the note stating that she was committing suicide of her own free will were in her writing.
15. The learned Trial Judge also held that there is ample evidence to hold that all the accused were treating Sushma with cruelty within the meaning of Section 498A. The learned Trial Judge, therefore, convicted all the accused persons under Section 302, Indian Penal Code for committing murder of the deceased, Sushma, under Section 498A, Indian Penal Code for cruelty towards her; under Section 304B, Indian Penal Code for causing a dowry death and Section 193, Indian Penal Code for giving false evidence. He held that the alternative charge under Section 306, Indian Penal Code of abetment to commit suicide is not made out against the accused. He, however, acquitted accused Pankaj Gupta, husband of the deceased and accused Kusumlata, the mother-in-law of the deceased of alleged offence under Section 201, Indian Penal Code for causing disappearance of evidence of offence or giving false information to screen the offender. He, however, found accused Ram Vishal Gupta guilty also of offence under Section 201, Indian Penal Code as he made a false report of suicide of Sushma to the police. The Trial Judge sentenced all the accused to R.I. for 10 years each under Section 304B, Indian Penal Code, imprisonment for life each under Section 302, Indian Penal Code, R.I. for 3 years each under Section 498A, Indian Penal Code and R.I. for 2 years each under Section 193, Indian Penal Code. Accused Ram Vishnu Gupta was further sentenced to one year's rigorous imprisonment under Section 201, Indian Penal Code.
16. We have heard at length Mr. S.C. Datt, learned Senior Counsel for the accused-appellants, and Mr. B.P. Athya, Dy. G.A., for the State. On behalf of the accused, the conviction has been assailed mainly on the ground that at the earliest opportunity the father of the deceased had not complained of any dowry demand. The evidence of close relations like brother and sisters of the deceased is somewhat exaggerated and is insufficient to make out any case of alleged cruelty against the deceased within the meaning of Section 498A, Indian Penal Code. It is submitted that it is not that every kind of physical agony or mental tension that is caused to a woman in married life would amount to cruelty. It is only wilful conduct, with intention to cause physical torture or mental agony to a woman in married life would amount to cruelty to hold the person responsible guilty of an offence. It is said that merely because the deceased on account of change in environment and disparity in life style of her family of in-laws and her parental family felt unhappy in the family of her husband it cannot be held that the members of her husband's family treated her with cruelty. It is submitted that the evidence on record is wholly insufficient to hold the accused guilty of dowry death punishable under Section 304B, Indian Penal Code and no case is made out under Section 498A, Indian Penal Code. Strong reliance is placed on the decision of the Supreme Court in Pyarelal v. State of Haryana,(1997) 2 SCC 552;and Kanchi Ramachandrav. State of A.P., 1995 (Supp.) 4 SCC119, and a decision of Andhra Pradesh High Court, for the purpose of Section 498A, Indian Penal Code, in Viralu v. State of A.P., 1998 Vol.3 Crimes 549.
17. Assailing the finding of the Trial Judge on the nature of death of deceased to be homicidal, on behalf of the accused, learned Counsel argued that prosecution is guilty of suppression of vital piece of evidence i.e. the suicidal note which was admittedly recovered, seized and sent for opinion of the handwriting expert which was in favour of the accused. It is submitted that the suicidal note left by the deceased and the fact that the dead body of the deceased was found in a store room bolted from inside were clear pieces of evidence to conclusively prove that the deceased met a suicidal death and not homicidal as alleged by the prosecution and held by the Trial Judge. It is pointed out from the inquest memo and other police papers exhibited in the case that the door of the store room had to be broke opened to recover the dead body of the deceased.
18. The learned Counsel for the accused very severely criticised the report and conduct of the so called Scientific Expert Dr. S.P. Singh (P.W. 8). It is submitted that he went for the spot inspection after the inquest had already been done and the body was sent for post-mortem. The store room was not locked and sealed. He prepared his spot inspection report after the store room was cleaned and put in order. The observations made by him and noted in the report do not show the condition of the store room as it was found when, in the presence of Panchas, the door was broke open to prepare the inquest memo. It is submitted that the witness in his report Ex. P/5 has tried to overdo his job by stating in his deposition that the suicidal note was not in the handwriting of the deceased. By making such a statement contrary to the opinion of the handwriting expert, the above so called Scientific Expert has shown his partisan attitude and has tried to oblige the complainant party.
20. The learned Counsel for the appellants also scoffed at the contents of the report of the above witness in which by giving a sketch map he has stated the result of his experiment that with the use of a loop of a thread or string the bolt on the upper side of the door of the store room could be fastened from inside by any person from outside. It is submitted that the alleged Scientist can claim no expertise on that part of the subject and his report has no evidentiary value as he did not conduct that experiment in presence of any Panchas and he prepared his spot inspection report all alone.
21. So far as the ante-mortem injuries like contusion on head, waist and thigh are concerned, on behalf of the accused it is submitted that is also not indicative conclusively of the death being homicidal. It is submitted that even assuming on the basis of post-mortem report that the deceased was given a beating by her husband, it is likely that she got up in the midnight and quietly locked herself in the store room for self-immolation.
22. It is submitted that even the alternative charge under Section 306, Indian Penal Code is not made out. If the beating to the deceased, just few hours before her suicide, is taken to be a case of cruelty, the offence made out would be only under Section 498A, Indian Penal Code against the husband alone, deserving punishment only for the period of imprisonment already undergone by him.
23. It is submitted that so far as accused Ram Vishnu Gupta and his wife Smt. Kusumlata is concerned, there is neither evidence of dowry demand nor cruelty by them. They are, therefore, liable to be acquitted of all the charges levelled against them. The learned Counsel places strong reliance on State of Maharashtra v. Ashok Shukla, AIR 1997 SC 3111=111 (1997) CCR 159 (SC)=II (1997) DMC 685 (SC); and Gurbachan Singh v. Satpal Singh, AIR 1990 SC 209. It is also submitted that the learned Trial Judge should not have placed reliance on the circumstance that as per opinion of the doctor beating given to her would have rendered her unconscious. It is submitted that this circumstance was never put to the accused in their examination under Section 313, Criminal Procedure Code and, therefore, it cannot be used against the accused. Reliance is placed on Fateh Singh v. State ofM.P., AIR 1953 SC 468; and Sharad Birdhichand v. State of Maharashtra, AIR 1984 SC 1622.
24. After hearing the arguments advanced by the Counsel appearing for the accused and the State, we have carefully and meticulously re-examined the evidence on record. In our considered opinion, the Trial Judge is perfectly justified on the evidence on record to convict and sentence the appellants.
Evidence on cruelty under Section 498A, Indian Penal Code.
25. In the instant case, the father, brother-in-law, brother and sister of the deceased have entered the witness box to prove that after marriage whenever the deceased met them she was sad and unhappy. She was virtually imprisoned in the house and was not allowed to move freely and mix with anyone in the neighbourhood. On behalf of the accused it has been stated that it was a custom in their family not to allow women to go out all alone. According to the husband he was extremely busy in looking after his business of furniture and running of lodge and, therefore, he could not devote sufficient time for the family. Learned Counsel on behalf of the accused argued that, merely because of the change in life style of the deceased who came from a family of Allahabad, it cannot be said that the accused treated the deceased cruelly. Placing reliance on the Andhra Pradesh decision in the case of Viralu v. State of A.P., (supra), decision the learned Counsel argued that mens rea should be taken to be the main ingredient of offence under Section 498A, Indian Penal Code. It is submitted that on the part of the accused there was no intention to cause her any mental or physical pain. She might have been feeling ill-at-ease in the traditional family of the accused living in a comparatively smaller town like Shahdol, but that would not be a circumstance to infer any commission of cruelty on the part of the accused.
26. We are not at all impressed by the argument advanced on behalf of the accused. In the instant case, the father has stated that when the deceased returned to them after marriage she had stated that her in-laws were unhappy with the cash and kind received in marriage. They have demanded an additional sum of Rs. 50,000/-. On behalf of the accused it is submitted that this statement of the father is an improvement as no mention of such demand is to be found in his written report to the police (Ex. P/2) and in his statement under Section 161, Criminal Procedure Code. The learned Trial Judge has given no importance to this omission stating that it was not expected of the father to give all details at the first available opportunity particularly when such report and statements were made while the father was in great tension because of the sudden death of his daughter and in most mysterious circumstances.
27. We have scanned carefully the evidence on alleged cruelty meted by the accused to the deceased as deposed by the father, brother-in-law, brother and sisters of the deceased. Giving some allowance to exaggerations and embellish- ments which are normally expected from close relations when they have lost a most near and dear one of their family, we find that there are two glaring instances not disputed on the part of the accused which go to indicate that the accused did not treat the deceased with love and affection and in fact had ill-treated and tortured her. It has come in evidence of all the above witnesses that in the marriage of her elder brother Ravi Gupta, her in-laws did not attend the function and only the couple had gone to participate in the same. After marriage in the same afternoon accused Pankaj, her husband, insisted on taking Sushmaback to Shahdol. The other members of the family insisted that they should stay on for 'at home' or marriage reception function, but accused Pankaj was adamant and obstinate in taking her with him. In his statement under Section 313, Criminal Procedure Code accused Pankaj denied that he had left the marriage function without attending 'at home' or reception party. This part of evidence of all the relations of the deceased which is consistent cannot be disbelieved.
28. In the marriage of her real second brother Rajesh (P.W. 11), the elder sister of the deceased, Sarla (P.W. 14) with her husband Nathulal Gupta (P.W. 15) from Bilaspur went to Shahdol to take the deceased for the marriage to Allahabad. The accused, however, did not send her for the marriage.
29. On behalf of the accused it is argued that there might have been some unavoidable circumstances and may be that she was not sent for the marriage because she was on the family way. The answer does not at all satisfy us. In Indian families marriage of real brother is such an important event that normally real sisters and her in-laws are important guests and their absence does not indicate a happy situation unless there are compelling reasons. The abovenamed witnesses examined on behalf of the prosecution stated that the accused deliberately did not send the deceased for the marriage. The brother-in-law of the deceased, Nathulal Gupta who is Executive Engineer in M.P. Electricity Board, posted at Bilaspur (P.W. 15) has stated that after marriage of the second brother of the deceased when they went to the accused at Shahdol with gifts for them, accused Kusumlata, mother-in-law of the deceased with pride and arrogance said to them that when they had not attended the marriage what was the necessity for sending gifts to them. All the above witnesses have stated that the deceased was not being treated with respect, love and affection. Nobody liked the food prepared and served by her. The members of the family including sister of the accused did not talk to her in a friendly way. In her statement under Section 313, Criminal Procedure Code, while disclos- ing her defence, accused Kusumlata, mother-in-law of the deceased, has stated that the deceased used to sit in her room, hours together and never talked to her four daughters.
30. The explanation under Section 313, Criminal Procedure Code of all the three accused for not attending the marriage of second brother of the deceased is that the deceased herself had not gone for the,marriage because they were not properly invited for the marriage. The above explanation of the accused for not attending the marriage is on the face of it false. It is most unlikely that the accused were not invited to the marriage of real brother of the deceased. The evidence of sister, brother-in-law and brother in the above regard is worth believable that the accused did not attend the marriage and did not send the deceased for the marriage as they were displeased with the parents of the deceased. The contents of the letter (Ex. P-29) sent by accused Pankaj to the deceased when the latter had gone to her parents also reflects his harsh attitude towards her. Its tone is in the nature of an order and the language is not such as is expected of between husband and wife. The language is very curt and rude. It does not contain words of courtsies or respects for elders and youngsters in the family normally expected in happy wedded life.
31. All the above witnesses have said that soon after the marriage function the deceased had conveyed to them that the accused were not satisfied with the marriage function and the cash and kind given to them in the marriage. Even accepting the submission made by the accused that they never demanded any additional dowry of Rs. 50,000/- which is nothing but an improvement made by the father of the deceased in his deposition in the Court, from the facts and events mentioned above it is clear that the deceased was ill-treated by the accused obviously for the reason that they were not satisfied with the kind of marriage function held and the gifts and items given to them. The witnesses examined on behalf of the prosecution have deposed that marriage gifts like scooter, sofa, beds and other furniture articles given in the marriage of the deceased were sold by the accused. In our considered opinion, the act on the part of the accused in not allowing full participation to the deceased in the marriage function of her first brother and refusal to her to attend the marriage of her second brother were not ordinary instances of ill-treatment. The injuries found on her body in the post-mortem also go to show that not only she was mentally tortured but was physically beaten. All the accused persons, therefore, are guilty of offence under Section 498A of the Indian Penal Code and the facts constitute existence of mens rea on their part.
Whether death is suicidal or homicidal
32. The most important question to be decided in this case is whether the deceased met a suicidal or homicidal death. On the basis of evidence on record, in our considered opinion, suicide is ruled out from the circumstances mentioned hereunder.
33. There was no motive for her to commit suicide. Even if the members of the family were not treating her with due care and affection and were in fact torturing her for not receiving sufficient cash and kind in marriage, she had already passed two years' married life and had a small child about one-year old. It was most unlikely that she would commit suicide leaving the child motherless.
34. The post-mortem report clearly reveals that she was given beating repeatedly on head, waist and ankle. Accused Pankaj in his statement under Section 313, Criminal Procedure Code has stated that they had merely quarrelled as she insisted on him to take her out for Devidarshan on the Asthami day in the festive season and he declined because it was late night, he was tired and the child was in fever. This explanation of the accused for quarrel between them is unbelievable. If her child was in fever it was most unlikely that she would have insisted the husband to take her out long with the child for seeing illumination and Devidarshan. The accused has not admitted that in the quarrel he beat the deceased. The post-mortem report, however, shows that she was given sufficient beating as the marks of contusions on her, in the opinion of the doctor, could be caused by blunt object. The doctor has also said that such injuries could not be caused by fall or dash against walls of the store room. It is thus clear that the husband had given a beating not only with fists but also by some hard and blunt object. The doctor has opined that the injuries sustained by her on her head might have rendered her unconscious. On behalf of the accused it is argued that this part of the opinion of the doctor having not been put to the accused under Section 313, Criminal Procedure Code it cannot be relied. Reliance is placed on the case of Fateh Singh (supra). The argument cannot be accepted. The above opinion of the doctor that the injuries on the head might have rendered her unconscious had been elicited by the accused himself in cross- examination of the doctor. That apart, the accused had taken a defence that he had never physically ill-treated or assaulted the deceased. The omission to put the above opinion of the doctor, which was elicited in cross-examination of the doctor, has not in any manner caused any prejudice to the defence of the accused who denied commission of homicidal death.
35. If there was a quarrel between the couple and beating given by the husband to the wife with a blunt object, it is unlikely that other members of the family were unaware of such a quarrel.
36. The accused want us to believe, as is argued on their behalf, that after she received the beating at the hands of her husband accused Pankaj, both of them with their child went to sleep in their bed room and the other members of the family also went to bed. It is suggested that she might have thereafter got up late in the night and silently closed herself in the store room and committed self immolation. The Investigating Officer has prepared a spot map (Ex. P/24) in which he has shown the location of different rooms of the house. A look to the spot map would reveal that the house is not a very big one and the hall where the in-laws of the deceased were sleeping is not far away from the bed room of the couple. The store room where the dead body of the deceased was found is very close to the other bed room occupied by sisters of accused Pankaj. Howsoever determinant the accused might have been to commit suicide, soon after engulfing herself in fire, it is unlikely that, as a natural instinct, she might not have shrieked or moved for help. The fire, smoke and her shriek would have been sufficient enough to arouse any of the inmates of the family sleeping in the nearby rooms. There is evidence led by the accused themselves that in the upper floor there was Ajanta Lodge run by them. As per the register of the lodge filed in the case, all the rooms were full and there were inmates. The house in which the accused and the deceased lived is in an inhabited locality and there are neighbours living all around. On the main road, being Durgashtami day, there was illumination and Devi Prasthapana and crowd. It is not believable that she could have self immolated silently and met her death without knowledge of anyone in the vicinity.
37. On behalf of the accused, the report of the Scientific Expert Dr. S.P. Singh (P.W. 8) has been severely criticised saying that he inspected the store room on 9.10.1989 after the inquest was already done and the room was set in order. After inquest it was neither locked nor sealed as per the statement of Investigating Officer Shivendra Pratap Singh (P.W. 16). For the above reason even if we exclude the spot inspection report of the Scientific Expert, we find that the inquest memo prepared by the Investigation Officer and the photographs Exs. P/16 to P/23 clearly reveal that the store room was very small and irregular in shape and size with dimensions not more than 9' x 7', full on all sides except a small space in the middle. In the Inquest Memo also it is not mentioned that the utensils, drums and boxes kept in the store room were disturbed in any manner except that one plastic container, due to heat, was found damaged by losing its shape. The situation of the room where the dead body was found did not show that there was any movement or struggle by the deceased which would have been there if she would have put herself to flames. A look at the photographs taken by the Investigating Officer soon after the report of death would testify the same.
38. Had the deceased immolated herself, there would have been fire and smoke which would have engulfed the whole house leading to emission of abnoxious smell sufficient to wake up the members of the family. The fact that the fire and smoke did not spread beyond the store room and was in control also is a circumstance against suicide. If it was a case of suicide, the conduct of the accused also does not appear to be natural. Soon after the report by her husband to the other accused that she was not seen on her bed, they would have made a search and on finding her in the store room would have forcibly broke open the room to ascertain whether she was alive or dead. In the report lodged by accused Ram Vishnu Gupta (Ex. P/4) it has been mentioned that they merely confirmed her death by peeping inside the store room with the help of a torch. It is most unnatural that although the accused persons had merely seen the body of the deceased from a distance and yet only by looking inside with a torch they were definite that she was dead.
39. The conduct of the accused is unnatural. They did not raise any hue and cry and none of them were seen weeping to attract the attention of neighbours or inmates of the lodge in the upper floor. That shows their guilty mind. They remained quiet even after finding her dead and quietly reported the matter to the police concluding without any investigation that she had self-immolated.
40. It is necessary to deal with two important aspects of the case pressed and highlighted on behalf of the accused. First is that a suicidal note left by the deceased under the pillow of her bed was recovered and the opinion of the handwriting expert was in favour of the accused. The prosecution, according to the accused, suppressed it.
41. So far as the suicidal note is concerned, no doubt, disappearance of that note is a mystery. The prosecution has suggested involvement of accused for its disappearance while the accused have accused the prosecution of its suppression from evidence. We have looked into the evidence and we find that the Investigating Officer has brought on record the opinion of the handwriting expert which has been exhibited as Exs. P/31 and P/32. We have also looked into the part statement of the father of the deceased who admits that a suicidal note was shown to him by the police in the police station. He has, however, stated that he found that the suicidal note contained signature of the deceased, but the writing therein stating that 'she was ending her life at her own will and nobody is at fault' was not in her hand- writing.
42. It is not necessary for us to accept one or the other version with regard to the genuineness of the suicide note. In view of the circumstances and evidence discussed above, we do not find that the manner in which the deceased was found dead and the conduct of the accused, her death was suicidal. In the Merg intimation given by accused Ram Vishnu Gupta, there is no mention of recovery of any suicide note. The suicide note was found by the Investigating Officer at 12 O'clock on 8th when he had gone for inquest and spot inspection. The suicide note was found by the police below the pillow of bed of the deceased. As we have noted above, if the deceased wanted to commit suicide it was not necessary for her to choose that particular day when there was nothing serious happened with her. Even otherwise, if the deceased was forced to commit suicide because of the ill-treatment received by her at the hands of the accused, it was most unlikely that in the suicidal note she would have completely absolved the accused by saying that nobody is responsible for her death.
43. It is proved from the medical evidence that she was beaten by her husband. If soon thereafter she had rushed towards the store room, closed it from inside and poured kerosene oil on her to put herself ablaze, the natural conduct expected from other members of the family was to rush to save her even, if necessary, by breaking open the door. The circumstantial evidence, also does not indicate that after receiving the beating she alongwith all members of the family went to bed and then late in the night she alone got up to stealthily commit suicide in the store room without possibility of knowledge to anyone sleeping nearby.
44. The other important feature of the case on which the accused placed heavy reliance to show their innocence is that the dead body of the deceased was found in store room bolted from inside. In the above respect, the report of the so called Scientific Expert has been severely criticised. It is argued that he can have no claim for being an expert and the experiment that he performed to show in his sketch annexed to the report that the bolt of the door from inside could be locked by operating it with a loop from outside is highly imaginary and not reliable since the experiment was not conducted in the presence of any independent Panchas and no Panchnama was prepared. True it is that the Scientific Expert Dr. S.P. Singh (P.W. 8) made the spot inspection on 9.10.1989 at 8 O'clock in the morning after the inquest and post-mortem had already been done. So far as the situation of the room and the material stored inside as shown by him in his report is concerned, the argument advanced on behalf of the accused may be accepted, but there is no reason for this Court to reject his testimony when he said that from the ventilator fixed above the only door of the store room with the use of a simple loop the inside bolt of the door could have been closed from outside. This part of the testimony of the Scientific Expert, P.W. 8 Dr. S.P. Singh, has not been subjected to challenge in cross- examination on behalf of the accused. He had visited the house in the capacity of an Aid and Assistant to the Investigating Officer. He was a Scientific Officer duly appointed by the State on the mobile van of the police. He visited the spot in his official capacity and merely because in his report he has made some adverse remarks on the opinion of the handwriting expert, his entire evidence cannot be said to be partisan. He has conducted the experiment with the bolt found on the inner side of the door of the store room, and the experiment worked well. In appreciating the evidence, we cannot lose sight of the fact that accused Ram Vishnu Gupta is an Advocate and also practises on the criminal side. He had full knowledge of the legal implications of their acts and conducts. The other accused is owner of a lodge and run a furniture mart. It was not difficult for them to close the bolt on the door of the store room by operating it through the ventilator from outside. There was enough time for the accused to plan closing of the door of the store room with a dead body inside and preparing a suicidal note to be kept underneath the pillow of the deceased. The photograph (Ex. P/17) taken by the Investigating Officer soon after reaching the spot clearly shows the condition of the door and the bolt found intact in its socket. The suggestion on behalf of the accused that in breaking open the door the bolt must have come out from its place is not borne out from this portion of the evidence and confirms the truthfulness of the experiment conducted by the Scientific Expert to show possibility of bolt having been closed by negotiating it from outside.
45. The evidence and circumstances on record indicate that the deceased was given a beating sufficient enough to result in her unconsciousness. In order to conceal that crime she was put to fire in the store room and a false report was made to the police that she had committed suicide without the knowledge of the members of the family.
46. We have been reminded by the learned Counsel for the accused by citing cases that this Court should not allow its mind to boggle with imaginations and guess and should keep it alive to the standard of proof required in a criminal case because the consequences of conviction are drastic leading to imposition of minimum of sentence of life imprisonment.
47. We have considered the evidence of cruelty, the effect of existence of suicide note and its disappearance, and the closure of the store room from inside where dead body was found. We have given reasons for coming to the conclusion that on the above facts and defence of the accused the death was suicidal. The death being neither suicidal nor accidental the only conclusion is that it was homicidal.
48. The last question that survives is whether accused can be convicted for offence under Section 304B, Indian Penal Code for causing dowry death. Learned Counsel for the appellants submits that definition of 'dowry' as per the Dowry Prohibition Act of 1961 would not include a mere expectation of some cash or kind from the parents of the deceased or the alleged harassment for insufficient dowry.
49. We are not required to examine this legal aspect in greater details in view of the authoritative pronouncement of the Supreme Court in the case of Pawan Kumar v. State of Haryana, AIR 1988 SC 958. The Supreme Court has noticed the amendment brought to the definition of 'dowry' in the Act of 1961. In the context of offences against a married woman the Apex Court has assigned it a wider meaning. In the opinion of the Supreme Court, any demand in cash and kind in connection with marriage at the time of marriage or after marriage would be covered within the wider definition of dowry'. The additional demand of dowry after the marriage is also covered as is held in the case of Premsingh v. State of Haryana, AIR 1998 SC 2626=11 (1998) DMC 238 (SC)=III (1998) CCR 171 (SC)=VI (1998) SLT 539 (SC). In the instant case even if we reject the testimony of the relations of the deceased that the accused demanded additional dowry of Rs. 50,000/- in cash we have found that she suffered cruel treatment by the accused persons because sufficient cash and kind was not given in the marriage. She was thus put to maltreatment and harassment for insufficient dowry which is covered by Section 304B, Indian Penal Code. It would also attract the presumption under Section 113B of the Evidence Act as the death has taken place within seven years of marriage. We respectfully rely on the following passage of the Supreme Court in the case of Paivankumar (supra):
'Applying this principle, it is clear that the earlier law was not sufficient to check dowry deaths hence aforesaid stringent provisions were brought in, so that persons committing such inhuman crimes on married women should not escape, as evidence of a direct nature is not readily available except of the circumstantial kind. Hence it is that interpretation which suppresses the mischief, subserves the objective and advances the remedy, which would be acceptable. Objective that men committing such crimes should not escape punishment. Hence stringent provisions were brought in by shifting the burden on to the accused by bringing in the deemed clause. As aforesaid, the definition of 'dowry' was amended with effect from 19th November, 1986 to include a period even after the marriage.
The offence alleged against appellants is under Section 304B, Indian Penal Code which makes 'demand of dowry' itself punishable. Demand neither conceives nor would conceive of any agreement. If for convicting any offender, agreement for dowry is to be proved, hardly any offenders would come under the clutches of Section 304B refers to 'Demand of dowry' it refers to the demand of property or valuable security as referred to in the definition of 'dowry' under 1961 Act. It was argued would not be a demand for dowry. We find from the evidence on record that within a few days after the marriage, the deceased was tortured, maltreated and harassed for not bringing the aforesaid articles in marriage. Hence the demand is in connection with marriage. The argument that there is no demand of dowry, in present case, has no force. In cases of dowry death and suicides, circumstantial evidence plays an important role and inferences can be drawn on the basis of such evidence. That could be either direct or indirect. It is significant that Section 4 of the 1961 Act was also amended by means of Act 63 of 1984, under which it is an offence to demand dowry directly or indirectly from the parents or other relatives or guardian of a bride. The word 'agreement' referred to in Section 2 has to be inferred on the facts and circumstances of each case. The interpretation that the appellant seeks that conviction can only be if there is agreement for dowry, is misconceived. This would be contrary to the mandate and object of the Act. 'Dowry' definition is to be interpreted with the other provisions of the Act including Section 3, which refers to giving or taking dowry and Section 4 which deals with penalty for demanding dowry, under the 1961 Act and the Indian Penal Code. This makes it clear that even demand of dowry on other ingredients being satisfied is punishable. This leads to the inference, when persistent demands for T.V. and scooter are made from the bride after marriage or from her parents, it would continue to be in connection with the marriage and it would be a case of demand of dowry within the meaning of Section 304B, Indian Penal Code. It is not always necessary that there be any agreement for dowry.'
50. In our considered opinion, on the basis of evidence discussed and relied upon by us showing ill-treatment of the deceased and her harassment physically and mentally for unsatisfactory marriage function with insufficient gifts and cash, the accused are guilty of causing dowry death punishable under Section 304B, Indian Penal Code. As the death has taken place within seven years of marriage, presumption under Section 113 of Evidence Act would also arise against the accused. We are not impressed by the argument for the accused that there is no evidence that soon before death she was subjected to cruelty. We have found that injuries on her body were caused on the same night on which she met her death with burns. All the ingredients of Section 304B are, therefore, conclusively made out against all the accused. The evidence on record proves that Pankaj Gupta, husband of the deceased physically assaulted the deceased and killed her by setting her on fire. He is, therefore, guilty of committing her murder punishable under Section 302, Indian Penal Code as well.
51. In the absence of clinching evidence against co-accused Ram Vishnu Gupta and Kusumlata Gupta that they took active part in committing murder of Sushma, they are acquitted of charge under Section 302, Indian Penal Code.
52. In the result, the entire appeal preferred by accused Pankaj Gupta is dismissed and his convictions and sentences as imposed by the Trial Court are maintained. The appeal preferred by accused Ram Vishnu Gupta and Kusumlata Gupta (appellant Nos. 1 and 3) partly succeeds. Their conviction and sentence under Section 302, Indian Penal Code are set aside and they are acquitted of the said offence. Their convictions and sentences under Sections 304B, 498A and 193 of Indian Penal Code are maintained. Appellant No. 3 Kusum Lata Gupta is on bail. Her bail bonds are cancelled and she is directed to be taken into custody and sent to prison for undergoing the remaining sentence.