S.P. Srivastava, J.
1. The appellant, who stands convicted under Section 306, IPC and sentenced to undergo ten years rigorous imprisonment and to pay a fine of Rs. 1000/-, providing that in case of default in deposit of fine he has to undergo six month's simple imprisonment, has now come up in appeal praying for the setting aside of the impugned order and for his acquittal.
2. I have heard the learned counsel for the appellant as well as the learned Government Advocate representing the State and have carefully perused the record.
3. The appellant had been married with Shahnaz Bano alias Seema. Seema was found dead on 25-4-92 in her room which was locked from inside. She was aged about 19 years at that time while the present appellant was aged 24 years. The First Information Report was recorded on 25-4-92 at about 17.15 hours in which the time of incident was disclosed to be 2.00 O'clock in the afternoon. After recovery of the dead body of Seema it was sent for post-mortem. In the post-mortem done on 26-4-92 no external injury was found visible over the body. However, one ligature mark over upper part of the neck which was dark-brown in colour was detected. This ligature mark was all over the neck except over right angle of jaw. Its direction was left to right upwards which was just above the hyoid bone and was of the width of one cm.
4. According to the medical expert the death had been caused due to asphyxia on account of hanging. Duration of death was reported to be within 24 hours of the post-mortem.
5. After completion of the investigations challan was filed. Appellant was charged under Section 304B, IPC as well as under Section 306, IPC. The appellant denied the charges and asserted that he had been falsely implicated with ulterior motive by the relatives of the deceased Seema who wanted to recover money from him which he refused to pay.
6. The prosecution in support of its case examined in all 14 witnesses. The accused-appellant in support of his defence examined five witnesses.
7. The Trial Court after consideration of the evidence brought on record came to the conclusion that Seema, the wife of the accused was being harassed by the appellant who pressurised her for bringing an amount of Rs. 20,000/- from her parents or bring one scooter. It was also found by theTrial Court that evidence led by the prosecution was sufficient to prove that the appellant harassed and tortured the deceased wife who was not given food and was also beaten. The Trial Court also found that when the accused had gone to bring Seema from her parental home at Rajakheda village her mother did not permit Seema to go back to her husband's place and asked the accused to bring some elderly person. Where after the accused again went to village Rajakheda alongwith his maternal uncle Shakoor to bring Seema to his home. This finding has been recorded by the Trial Court in Paragraph 24 of the judgment.
8. The record of the Trial Court indicates that this incident had taken place about 25 days before the date of death of Seema. It is clear from the perusal of the statement of P.W. 2, Smt. Shahjehan, the mother of the deceased.
9. The Trial Court further came to the conclusion that the dead body of Seema was recovered after breaking open the door of the room which was bolted from inside. In the room it is not disputed that Seema was all alone. The defence witness Nos. 1 and 2 had disclosed that the dead body of Seema was hanging from the roof. Holding that Seema had committed suicide and she had been harassed by her husband with the object to pressurise her to bring either a scooter from her parents or bring Rs. 20,000/- in lieu thereof, the Trial Court with the aid of the presumption available under Section 113A of the Evidence Act found the accused-appellant to be guilty of having committed the offence envisaged under Section 306, IPC.
10. The Trial Court drew support for its conclusion from the observations made by the Hon'ble Apex Court in the case of Girijashanker and Ors v. State of M.P., reported in 1989 C,Cr. J. 72 as well as the decision of the Apex Court in the case of State of Punjab v. Iqbal Singh, reported in 1991 Cr.LJ 1897.
11. The accused, however, was not found guilty under Section 304B, IPC and was acquitted so far as that charge was concerned.
12. The learned counsel for the appellant has strenuously urged that in the facts and circumstances of the present case the conviction of the appellant under Section 306, IPC with the aid of Section 113A of the Evidence Act is not sustainable in law. What has been urged in this connection is that on the own showing of the prosecution the matter had been amicably settled and whatever harassment etc. may have been there prior to Seema's coming to her husband's place alongwith her husband and maternal uncle Shakoor 25 days before the date of death the same stood condoned and in the absence of any evidence whatsoever that any such demand was raised or there was any activity on the part of the accused-appellant which could fall in the category of 'harassment', the presumption envisaged under Section 113A of the Evidence Act could not be deemed to have been available on the basis whereof theconviction under Section 306, IPC could be sustained. It was also contended that the presumption envisaged under Section 113A of the Indian Evidence Act is a rebuttable presumption and it was incumbent on the part of the prosecution to lead positive evidence of harassment during the period of 25 days after the couple, forgetting the past, had decided to live together and acting upon the settlement Seema came with her husband to live with him. There is absolutely no evidence which may in any manner indicate that after coming back from her parent's house 25 days prior to the date of incident she was meted out with any such harassment which could in any manner create a situation which could fall within the ambit of the expression 'abetment' envisaged under Section 107, IPC. In support of the aforesaid submission learned counsel for the appellant has placed reliance on the observations of the Apex Court in the case of Mahendm Singh and Anr. Gayatribai v. State of M.P., reported in 1995 SCC (Cr.) 1157. In the aforesaid decision the Apex Court had observed as follows :--
'Abetment has been defined in Section 107, IPC to mean that a person abets the doing of a thing who firstly instigates any person to do a 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 act or illegal omission, the doing of that thing. Neither of the ingredients of abetment are attracted on the statement of the deceased. The conviction of the appellants under Section 306, IPC merely on the allegation of harassment to the deceased is not sustainable.'
13. The learned counsel for the appellant has further placed reliance on the observations of the Apex Court in the case of Swamy Prahaladdas v. State of M.P. and Anr., reported in 1995 SCC (Cr.) 943, wherein in spite of the fact that in a quarrel between the husband and the deceased wife and one another person the accused-appellant was said to have remarked for the deceased to go and the whereafter suicide had been committed, the Apex Court observed that those words were casual in nature which are often employed in the heat of the moment between quarrelling people. Nothing serious was expected to follow thereafter. The said act does not reflect the requisite mens-rea on the assumption that those words would be carried out in all events. Besides the deceased had plenty of time to weigh the pros and cons of the act by which he ultimately ended his life. In the circumstances, the Apex Court found that it could not be said that the suicide by the deceased was the direct result of the words uttered by the appellant. The summoning of the accused to face trial for offence under Section 306, IPC was quashed.
14. The learned Government Advocate, however, has urged that taking into consideration the preceding attitude of the accused-appellant and thefinding returned by the Trial Court that he had been throughout torturing and harassing the wife and compelled her to bring the amount of Rs. 20,000/- or a scooter in lieu thereof, the presumption envisaged under Section 113A of the Indian Evidence Act was clearly available to the prosecution and the Trial Court was justified in convicting the accused under Section 306, IPC with the aid of the aforesaid presumption. It was further been urged that the amicable settlement where under the deceased wife had agreed to come back to her husband's place 25 days before the date of incident was of no material consequence and could not be taken to have the effect of condoning the past harassment etc. so as to wipe out the effect of Section 107A, IPC and the presumption remained effective and available as claimed. In support of the aforesaid submission reliance has been placed on the observations of the Apex Court in the case of Gutubachan Singh v. Satpal Singh, reported in AIR 1990 SC 209. In the aforesaid decision it had been observed that there is ample and sufficient evidence that she had complained that she was taunted for bringing meagre dowry and that (it was) even insinuated that she was carrying 'an illegitimate child'. The aforesaid facts stand established by cogent and reliable evidence. These are grave and serious provocations enough for an ordinary woman in the Indian set up, to do what the deceased is alleged to have done. In the absence of any burn injury on the hands of the people around was taken to have indicated and established that there was no attempt to save the deceased though she was seen burnt. The attitude and conduct of the in-laws, the father-in-law, mother-in-law and the husband, after Ravinder Kaur, the deceased got burns in not informing the parents and not taking prompt steps to take her to hospital for giving medical assistance corroborated the inference that these accused connived and abetted the crime.'
14-A. It was emphasised by the Apex Court that even after the introduction of Section 498A of the IPC and Section 113A of the Indian Evidence Act, the proof must be beyond any shadow of reasonable doubt, but the doubt must be of a reasonable man. Having regard to the circumstances of the case in the absence of any direct evidence indicating the circumstances in which the death took place, the conduct of the accused and the nature of the crime with which the accused was charged was not found sufficient to raise even a doubt and the conviction was held to be properly made.
15. In the aforesaid case it may be noticed the Apex Court had found that the sisters of the deceased, Ravinder Kaur had visited her just two days prior to her death and the deceased had complained to them about the torture as well as cruel behaviour of her in-laws as before and they had not stopped maltreating her and torturing her and further that she was not happy there. Being depressed with the taunts and maltreatment the deceased committed suicide by sprinkling kerosene oil on her body and then setting herself on fire. The finding of the Trial Court that it was a case of suicide committed by the deceased, Ravinder Kaur, being depressed by the taunts and maltreatmentgiven to her by her in-laws and this forced her to take her own life was up-held. The view of the Trial Court that the attending circumstances showed that the deceased was not allowed to move till the process of burning had become irrecoverable and till she succumbed to her injuries was also up-held.
16. So far as the presumption available under Section 113A of the Indian Evidence Act was concerned the contention on behalf of the accused that the aforesaid provision was brought into effect subsequent to the commission of the offence i.e.,on June 23rd, 1983, and could not be taken recourse to while coming to a finding regarding the presumption as to abetment of suicide committed by a married woman against the accused persons was rejected holding that the presumption arising under Section 113A of the Evidence Act had been rightly taken into consideration by the Trial Court. It had to be construed as retrospective in operation.
17. In the present case what is apparent is that there is a quite large time gap between the amicable settlement with the consequential return of the deceased to her husband's house and the date of the incident. There is no proximity with any overt act showing harassment to the wife or indicating grave and serious provocation enough for taking recourse to suicide. There is nothing on record to show that there is any proximity of any act of harassment which may indicate that the suicide was consequential thereto. The evidence brought on record in the case of Gurubachan Singh (supra) did not have the effect of rebutting the presumption; whereas in the present case from the prosecution version itself the presumption stood effectively rebutted.
18. The learned Government Advocate, has further placed reliance on the decision of the Apex Court in the case of State of Punjab v. Iqbal Singh, reported in 1991 Cr.LJ 1897. In that case also it was found that the last straw on the camel's back fell when the deceased wife was severely beaten on the previous day i.e., 6th June, 1983 of the dale of incident on which she had died. In Paragraph 8 of the aforesaid decision it was indicated that the legislative intent was clear to curb the menace of dowry deaths etc., with a firm hand, pointing out that it must be remembered that since crimes are generally committed in the privacy of residential homes and in secrecy, independent and direct evidence is not easy to get and that is why the legislature has by introducing Sections 113A and 113B in the Evidence Act tried to strengthen the prosecution hands by permitting a presumption to be raised if certain foundational facts are established and the unfortunate event is proved to have taken place within seven years of the marriage. This period of seven years is considered to be a turbulent one after which the legislature assumes that the couple would have settled down in life. If a married woman is subjected to cruelty or harassment by the husband or his family members Section 498A, IPC would be attracted. In a circumstance where the husband or his relative by his wilful conduct creates a situation which he knows will drive the woman to commit suicide and she actually does so, the case would squarely fait withinthe ambit of Section 306, IPC. In such a case the conduct of the person would tantamount to inciting or provoking or virtually pushing the woman into a desperate situation of no return which could compel her to put an end to her miseries by committing suicide.
19. In the present case, however, on the prosecution case itself the wife had condoned the past harassment etc. and with the amicable settlement reached in the presence of the elder person of the family of husband had willingly returned back to her husband's house 25 days before the date of incident. No evidence was led by the prosecution which could lead to an inference that during this period there was repetition of harassment or any such thing was done which could provoke the wife to take the extreme step.
20. Taking into consideration the facts and circumstances of the case the ratio of the decisions of the Apex Court in the case of Swamy Prahaladdas (supra) and Mahendra Singh and another Gayatribai (supra) can be safely held to be attracted. Consequently, the finding of the Trial Court that the accused appellant was guilty of having committed an offence under Section 306, IPC is not liable to be sustained.
21. However, so far as the conviction of the accused-appellant under Section 498A, IPC is concerned the position is quite different. This conviction can be sustained even without the aid of Section 113A of the Indian Evidence Act. The Trial Court returned a finding against the appellant that the appellant had been coercing the wife and subjecting her to maltreatment to meet unlawful demand for a scooter and in lieu thereof for the payment of an amount of Rs. 20,000/- and the deceased was being harassed on account of her failure to meet such demand. The Trial Court has given cogent reasons in support of its aforesaid conclusion. The finding to the above fact is amply borne out from the evidence and the materials brought on record.
22. Taking into consideration the facts and circumstances of the case there can be no manner of doubt that the appellant-accused could well have been charged under the said provision which may now be applied in substitution. Both parties had led evidence in support of their respective cases and no prejudice is likely to be caused to the accused-appellant as from the very beginning he was in the know of the prosecution version in regard to the facts which was sought to be relied upon by the prosecution and were sufficient for bringing home the guilt as envisaged under Section 498A, IPC. I do not find any commitment in applying Section 498A, IPC in substitution of Section 306, IPC. However, the learned counsel for the accused-appellant has pointed out that the accused-appellant has already served out rigorous imprisonment for two months and had remained in judicial custody for a period of one month and 20 days. It is also pointed out that he had already deposited Rs. 1000/-towards fine.
23. Taking into consideration the totality of circumstances and thedistance of time I am of the opinion that so far as the offence under Section 498A, IPC is concerned interest of justice would be met by awarding a sentence for the period already undergone together with a fine of Rs. 1000/-.
24. In the result this appeal succeeds in part. The conviction and sentence of the accused-appellant for having committed an offence under Section 306, IPC is set aside. Instead, he is convicted under Section 498A, IPC and sentenced to the period of sentence already undergone and in addition with imposition of fine of Rs. 1000/-. The amount of Rs. 1000/- already deposited by the accused-appellant shall be adjusted against the fine imposed under this order.
25. The impugned judgment and order shallstand modified accordingly.
26. Criminal Appeal partly allowed.