R.K. Gupta, J.
1. The present appeal has been preferred by the convicted appellants against their judgment of conviction dated 22nd July, 2004 passed by 13th Additional Sessions Judge (Fast Track Court), Jabalpur in Sessions Trial No. 671/2003 whereby all the appellants have been convicted under Section 304B of the Indian Penal Code and have been sentenced to 7 years' R.I. and a fine of Rs. 500/- each; in default of payment of fine a further sentence of four months' each has been imposed. They have also been convicted for an offence punishable under Section 498A of the Indian Penal Code and sentenced to three years' RI and a fine of Rs. 200/- each and in default of payment of fine, two months' RI.
2. The prosecution story, in brief, is that deceased Madhuri alias Sangita was married to appellant No. 1 on 10-6-2003. Appellant No. 2 Bharat Bhushan and appellant No. 3 Chandrabhushan are the elder brothers of appellant No. 1. Appellant No. 4 is the wife of appellant No. 2.
3. According to the prosecution story, the marriage was performed on 10-6-2003 and the deceased has committed suicide on 17-8-2003, i.e., after the period of two months and seven days. The prosecution story further states that marriage was settled on payment of dowry but still on the day of marriage the accused persons demanded further dowry, i.e., a sum of Rs. 50,000/-, Colour TV and motorcycle. The other relatives intervened, thereafter marriage ceremony could be performed. Subsequently, at the time of 'Vidai', again all the appellants refused to carry the girl in their house as no dowry was paid and were trying to go alone without the girl. Subsequently, again the relatives intervened and thereafter deceased Madhuri was taken by the appellants to their house. The prosecution story further shows that the marriage could be completed under stress and strain. The marriage was performed from the house of appellant No. 3. Appellant Nos. 3 and 4 were living separately.
4. The prosecution story further shows that deceased Madhuri came to her parents' house on 5-8-2003 and thereafter did not go to her in-laws house. The prosecution story further states that after when Madhuri came in her parental house on 5-8-2003, then attempts were made by her father Raghunandan Prasad to settle the issue with regard to dowry and invited all the accused persons for the same but they refused. Subsequently, on 17-8-2003, Madhuri committed suicide. Merg Intimation was also given, which is Ex. P-9 and FIR was also lodged. The necessary investigations were carried out and thereafter a challan against all the accused/appellants was filed, all the appellants denied their guilt.
5. Before the learned Sessions Judge, for the purposes of proving the guilt of the accused personst he prosecution examined nearly about 18 witnesses. The accused/appellants also examined two witnesses in their defence. The learned Trial Court held the appellants guilty on the basis of the testimony of Raghunandan Prasad (P.W. 4) father of the deceased, Krishna Kumar (P.W. 5) brother of the deceased, Mukesh Vishwakarma (P.W. 6) Anr. brother of the deceased, Tarabai (P.W. 7) who is the mother of the deceased and Ramarani (P.W. 8) who is the Bhabhi of the deceased. Prakash Bindhujha (P.W. 10) turned hostile and Barelal (P.W. 11) also turned hostile. They are the neighbours, therefore, their testimony has not been believed by the learned Trial Court.
6. The learned Counsel for the appellants submitted that in the present case, there are material contradictions in the statement of prosecution witnesses and their testimony, keeping in view their contradictions, could not have been relied upon by the learned Trial Court. The learned Counsel fro the appellants also submitted that Ex. P-9 is the Merg intimation which has been signed by Raghunandan Prasad (P.W. 4) but in the said Merg Intimation, nothing has been mentioned that the suicide has been committed by the deceased as she was subjected to cruelty or harassment due to dowry, therefore, whole of the prosecution story has to be disbelieved.
7. For the purposes of considering the aforesaid argument of the learned Counsel for the appellant with regard to the facts mentioned in Ex. P-9 Merg Intimation, it may be seen that the Merg Intimation is a requirement under Section 174 of the Criminal Procedure Code. According to the same, in the Merg Intimation the cause of death has to be intimated. In the present case, there had been no dispute that deceased Madhuri had not committed suicide. Factum of suicide is already mentioned in the Merg Intimation. Thus, the requirement under Section 174, Criminal Procedure Code is complete as the cause of death 'suicide' is mentioned in the Merg Intimation. Section 174, Criminal Procedure code makes obligatory on the part of police to inquire and report on suicide in the manner as mentioned in the aforesaid section. Thus, the perusal of the said section itself indicates that where the death has occurred under the suspicious circumstances or an unnatural death, then the apparent cause of death has to be mentioned in the Merg Intimation. All details with regard to factum which induced the deceased to commit suicide or the names of the persons are not to be mentioned in the Merg Intimation, as this is not the requirement of Section 174, Criminal Procedure Code.
8. The Apex Court considered the object and scope of Section 174, Criminal Procedure code in its judgment as reported in : AIR1975SC1252 , Podda Narayana Ors. v. State of Andhra Pradesh. Para 11 of the aforesaid judgment deals with the aspect where similar argument was advanced on behalf of the accused before the Apex Court. It was submitted in the said case before the Apex Court that if in the Merg Intimation the names of the witnesses and the overt act have not been mentioned therein, then the omission as such would have the effect of rejecting the prosecution case. The relevant portion of Para 11 is as under:
A perusal of this provision would clearly show that the object of the proceedings under Section 174 is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstance he was assaulted appears to us to be foreign to the ambit and scope of the proceedings under Section 174. In these circumstances, therefore, neither in practice nor in law was it necessary for the police to have mentioned these details in the inquest report.....The High Court has thus rightly explained that the omissions in the inquest report are not sufficient to put the prosecution out of Court, and the learned Additional Sessions Judge was not at all justified in rejecting the prosecution case in view of this alleged infirmity.
9. Anr. judgment in this reference shall be relevant which is reported in : 1987CriLJ838 , Eqbal Baig v. State of Andhra Pradesh, where a similar question arose for consideration before the Apex Court. The question was raised that if the names of certain witnesses have not been mentioned in the FIR and also in the inquest report, whether the evidence before the Court is liable to be ignored Para 5 of the judgment deals with the aforesaid question, which is reproduced as under:
Learned Counsel appearing for the appellant frankly conceded that there are number of witnesses who had named this appellant but the leave was granted mainly on the ground that in the First Information Report and inquest report, the name of this appellant was not mentioned and as this was a case of trade-union rivalry, the possibility that this appellant was implicated as an afterthought could not be ruled out.
In Para 6, the Apex Court came to a conclusion that:.In the face of all the evidence, the High Court came to the conclusion that this appellant stabbed deceased Yellaiah with a knife. It was also contended that in the inquest report also the name of this appellant was not mentioned. It could not be contended that the inquest report is the statement of any person wherein all the names ought to have been mentioned.
10. Thus, on the basis of the aforesaid two judgments of the Apex court it is apparent that the inquest report has not been treated to be a statement of any person wherein everything should be included, including the names of the persons.
11. In view of the aforesaid, the first submission of the learned Counsel for the appellants does not find support and is liable to be rejected. In the Merg Intimation the factum of dowry and the persons who have subjected the deceased to cruelty or harassment even though are not mentioned but the facts are mentioned in the First Information Report. During the course of investigation also if the witnesses have stated the facts with regard to the dowry, cruelty and harassment, then that has to be considered.
12. The next argument of the learned Counsel for the appellants also deserves to be considered. Before dealing with the other contradictory aspect of the matter it would be necessary to deal with the submission of the learned Counsel for the appellants with regard to appellant Nos. 3 and 4. Learned Counsel for the appellants submitted that so far as appellant Nos. 3 and 4 are concerned, they had been living separately. Though the marriage was performed from their house. After the marriage, appellant No. 1, a newly wedded husband, and deceased Madhuri alias Sangita, were asked to live with their parents. Parents were living separately and the appellant Nos. 3 and 4 were living separately though he is elder brother of appellant No. 1. The learned Counsel for the appellants submitted that there is no material on record so far as appellant Nos. 3 and 4 are concerned to hold them guilty. It is submitted that the prosecution has not produced any material on record to show that soon before the suicide, i.e., 17-8-2003, appellant Nos. 3 and 4 have made any demand of dowry from the parents of the deceased. On this, it is submitted that since the appellant Nos. 3 and 4 were living separately, therefore, their case has to be judged separately and not to be coupled with the case of appellant Nos. 1 and 2.
13. In this reference, it may be seen the meaning and scope of the two sections, i.e., Section 304B and 498A of the Indian Penal Code. Section 498A of Indian Penal Code provides 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. The word 'cruelty' has also been explained in this connection, which means- '(a) 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 (whether mental or physical) of the woman'. Sub-clause (b) further defines the word 'harassment' as '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'.
14. Section 304B of the Indian Penal Code relates to dowry death. 'Dowry' has been given the same meaning as defined in Section 2 of the Dowry Prohibition Act, 1961. The legislature has further amended the Evidence Act with regard to presumption as to dowry death by inserting a new section by means of adding Section 113B. According to the same, when the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment or in connection with any demand for dowry, the Court shall presume that such persons has caused a dowry death. In view of the cumulative effect of the present three sections that unnatural death of a woman resulting within a period of 7 years of her marriage, then presumption by the force of Section 113B would be that the death had been due to dowry, as she was subjected to cruelty or harassment for the same. Thus, the presumption as such is not an absolute but presumption as such is rebuttable.
15. In this reference, it may be seen the statement of Raghunandan Prasad (P.W. 4) to deal with the aspect whether appellant Nos. 3 and 4 even though were living separately after the marriage of appellant No. 1, whether yet they can be held guilty for subjecting the deceased to cruelty or harassment. The statement of Raghunandan Prasad (P.W. 4) is relevant where in Para 5 of his deposition he has stated that in the month of August an attempt was made by inviting all the accused to settle the issue but all the appellants refused to come to settle the issue on the ground that they are from groom side, therefore, they will not come. Krishna Kumar (P.W. 5), the brother of deceased in Para 4 of his examination-in-chief has corroborated the same story wherein this witness has deposed that the attempts were made to call the persons from in-laws house of the deceased so that the matter could be settled but they refused to come and to discuss anything. Thus, on the basis of examination of the statement of aforesaid two witnesses, it is apparent that the attempts were made by Raghunandan Prasad (P.W. 4) and Krishna Kumar (P.W. 5) to settle the dispute with regard to dowry but the accused persons refused to come and discuss the matter.
16. It may be seen that appellant No. 3 is an elder brother of appellant No. 1 (husband of deceased). The marriage was performed from his house. The mental agony of the deceased would certainly be that when her parents are attempting to settle the matter by discussing the same and making request to the accused persons including the appellant Nos. 3 and 4 to come and settle the matter with regard to dowry and when appellant Nos. 3 and 4 refused to come and settle the matter, then the question would be whether such a conduct would amount to cruelty for the purposes of proving the guilt ?
17. It may also be seen that the word 'cruelty' has been explained under Section 498A of Indian Penal Code. According to the same, 'cruelty' is a wilful conduct of such a nature which is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical. In the present case, the mental agony of a newly wedded girl, i.e., deceased would certainly be very poor when her parents are making efforts to call the accused persons including the appellant Nos. 3 and 4 to come and settle the dispute with regard to dowry and when the accused persons are refusing to come and settle merely on the ground that they are from groom side. In the opinion of this Court such a conduct would certainly be resulting into an act of cruelty and would also result in mental distress to a woman, i.e., newly married girl who is married just only two months before her suicide. Thus, keeping silence and not taking any step to settle the issue with regard to dowry by the appellant Nos. 3 and 4 would certainly cause a mental distress to a woman and would be an act of cruelty, though by physical actual act the accused Nos. 3 and 4 had not been responsible for the same. Accused Nos. 3 and 4 being the elder brother and Bhabhi of the accused No. 1 should have come forward to settle the dispute with regard to dowry but not taking any step towards the settlement and just to keep silence on the issue shall also be an act of cruelty. He thus completely neglected to deal and settle the dispute. The newly wedded woman certainly would have high hopes from elder brothers an Bhabhi, of the appellant No. 1 but if such an elder brother remains inactive and neglects by not taking any participation to settle the dispute, then person as such acting in this manner shall also be responsible for subjecting cruelty on the woman as she may lose all the hopes to settle the issue with regard to dowry.
18. The word 'cruelty' though has already been defined and discussed under provisions of Indian Penal Code such as Section 498A as well as Section 304B of the Indian Penal Code. However, the meaning of the word 'cruelty' is also explained through the judicial pronouncements and as such will also be useful. The expression of the word 'cruelty' may also include the injury to person or to health. The Apex Court in : [1975]3SCR967 , the famous case in relation to the divorce, i.e., Dastane v. Dastane, had an occasion to consider the meaning of the word harm or injury to health, reputation, the working career or the like would be an important consideration in determining whether there was cruelty. The word cruelty also includes an action or omission which injuries the susceptibilities of the affected spouse and causes her mental agony to which the suffered alone can state. This has been the view in , Smt. Priti Parihar v. Kailash Singh. In this reference, Anr. judgment as reported in : AIR1979All316 , Gopal Krishan v. Mithilesh Kumari, with reference to Hindu Marriage Act, 1955 shall also be relevant wherein it is said that cruelty includes 'every wilful act, omission or negligence whereby unjustifiable physical pain, suffering or death is caused or permitted'. A consistent course of conduct inflicting immeasurable mental agony and torture will also constitute a cruelty. This has been the view expressed in : AIR1988Ker244 , Gangadharan v. T.K. Thankar.
19. It may be seen that while giving the statement under Section 313, Criminal Procedure Code before the Court, the appellant No. 3 while answering question No. 96 has merely stated that he has been falsely implicated in the matter. While answering the question No. 94 he states that all the witnesses have falsely deposed to implicate him. In his statement he does not give any explanation with regard to his own conduct that he had not been responsible for the demand of dowry. He also does not say that he has taken steps to resolve the issue but his attempts failed. Keeping in view the aforesaid conduct of the appellant No. 3 he cannot be absolved from the guilt and thus the learned Sessions Judge has rightly held him guilty for the offence. Similar are the facts and circumstances with regard to accused No. 4 therefore she also cannot be absolved from her responsibility. On the basis of the aforesaid assessment, it is apparent that appellant Nos. 3 and 4 have rightly been found guilty for the offence by the Trial Court.
20. Now the question arises with regard to accused No. 1 and accused No. 2. The accused No. 1 is the husband and accused No. 2 is the eldest brother of appellant No. 1. There had been ample evidence on record to demonstrate that there had been a demand for dowry which is clear from the statements of Raghunandan Prasad (P.W. 4), Krishna Kumar (P.W. 5), Mukesh Vishwakarma (P.W. 6), Tarabai (P.W. 7), Ramarani (P.W. 8) and Ku. Durga (P.W. 9). All these witnesses in one voice have stated that the marriage was settled by paying dowry. It is also stated by Raghunandan Prasad (P.W. 4) that at the time when the 'Barat Procession' came to his house immediately a demand of dowry was made but ultimately when the relatives intervened, then the matter was pacified. Subsequently again at the time of 'Vidai' an attempt was made to go without the bride but again when the relatives intervened, then after a great tussle the accused persons including appellant Nos. 1 and 2 agreed to take the bride in their house.
21. It has also come on record in the statement of Ku. Durga (P.W. 9), who is the cousin sister of deceased that when she used to meet the deceased then she used to tell her that there is a demand for dowry and there was also a threat that in case the dowry is not given then accused shall pour the kerosene oil and she shall be burnt. It is also stated that she was scared of.
22. Mother Tarabai (P.W. 7) also states the same set of story. Ramarani (P.W. 8) is the wife of brother of deceased. She also confirms the story with regard to demand of dowry. Krishna Kumar (P.W. 5) brother of deceased also states the same story with regard to demand of dowry. Raghunandan Prasad (P.W. 4) has already stated in detail in relation to demand made by all the appellants of dowry. First Information Report Exhibit P-18 also discloses the story with regard to demand of dowry and also the factum with regard to cruelty subjected to deceased by the appellants.
23. In the present case the learned Counsel for the appellants submitted that there had been contradictions in the statements of these witnesses who have been relied upon by the Trial Court for conviction of the appellants. Though, there are certain contradictions but the contradictions, as such, are of minor nature and such contradictions do not demolish the prosecution story completely. Certain contradictions are bound to happen when the parents, brothers have lost their daughter just on completion of two months after the marriage, due to suicide by the deceased. But it may be seen that on perusal of over all statements of the aforesaid witnesses there are no contradictions with regard to demand of dowry. There are also no contradictions with regard to the aspect that the attempts were made by the parents to negotiate and settle the issue with regard to dowry with the accused persons. Though, there may be certain minor omissions in the police diary which have been pointed out by the learned Counsel for the appellants during the course of argument but as this Court finds that there are no material contradictions which completely demolishes the prosecution story. Contradictions are also not of such a nature which do not inspire the confidence of this Court. All the witnesses in one voice have stated that there had been a demand of dowry right from the day of marriage and subsequently also.
24. Tarabai (P.W. 7) in her statement in Para 2 has further stated that when after the marriage her daughter went to her in-laws house then on the first she was not even provided with the food from 7:00 a.m. to 4:00 p.m. only for this reason that she has not brought sufficient dowry alongwith her. There had been a demand for dowry for Rs. 50,000/-, Colour T.V. and Motor cycle. Raghunandan Prasad (P.W. 4), Krishna Kumar (P.W. 5), Mukesh Vishwakarma (P.W. 6), Tarabai (P.W. 7), Ramarani (P.W. 8) and Ku. Durga (P.W. 9) have given a consistent story in their statements. In this reference the statement of Mukesh Vishwakarma (P.W. 6) is also relevant in Para 2 of his statement he has stated that when he had been in the house of in-laws of his sister then her sister informed him in relation to demand of dowry made to her by accused. Ku. Durga (P.W. 9) also has stated in her statement that when Mukesh had been to bring her sister then Mukesh was ill-treated and he was not even asked for the water. This witness was also present there. This witness is the cousin sister of the deceased. It is further stated that her sister was given a house by the side of the place when cows were kept. This witness also stated that accused persons were telling that in case the dowry is not brought then she will be made to live like a servant in the house.
25. The next submission of the learned Counsel for the appellant had been that the suicide has been committed in her parents house, therefore, the present accused persons cannot be held responsible for the same. In this reference, the judgment reported in 1997 Cr.LJ 1737, Surinder Kumar and Anr. v. State of Haryana, is relevant. It was a case where the girl has committed suicide in her parents house. She lived in her parents house for a period of 15 days yet it was held that merely because the girl has been living in her parents house and committed suicide that by itself would not be sufficient to absolve the accused persons from their responsibility and the conviction accordingly was sustained.
26. In the present case, it may be seen that the marriage was performed on 10-6-2003 and suicide was committed on 17-8-2003 just after completion of two months. There are no circumstances pleaded by the accused persons with regard to the poor character or mental status of the deceased. The presumption would have been rebutted by them by adducing some evidence but no evidence to rebut the presumption has been adduced. The death of the deceased was unnatural and was within 7 years of the marriage. There is ample evidence with regard to ill-treatment and harassment by the accused persons for the demand of dowry is also established.
27. In this reference it may also be seen the document on record, i.e., the complaint which is Ex. P-11-A signed by the deceased. This complaint was submitted by her against the demand of dowry and against the present appellants. It has been argued on behalf of the appellants with regard to the making of said complaint by the deceased. Even assuming that the said complaint was not made yet there is ample evidence on record to demonstrate that the deceased was subjected to cruelty and harassment. This complaint is made on 10-8-2003. A sufficient explanation has been given by the Investigating Officer M.M. Dubey (P.W. 18) with regard to the said document. There had also been cross-examination of this witness with regard to this document. The receipt of this complaint has been challenged by the defence during the course of cross-examination. It is submitted that rojnamcha was not brought with a view to prove the receipt of the aforesaid complaint. It may be seen that no attempt was made by defence to call for the rojnamcha sanha but it may be that merely because the receipt of this complaint is doubtful that by itself would not have effect of ignoring the other prosecution evidence and material brought on record.
28. The prosecution has also examined Suresh Vishwakarma (P.W. 13) who is the neighbour. This witness has also corroborated the deposition made by other witnesses, i.e., Raghunandan Prasad (P.W. 4), Krishna Kumar (P.W. 5), Mukesh Vishwakarma (P.W. 6), Tarabai (P.W. 7), Ramarani (P.W. 8) and Ku. Durga (P.W. 9). This witness has corroborated and supported the story of prosecution with regard to demand of dowry and cruelty. Anr. witness is Munnalal (P.W. 14). These two witnesses have attended the marriage ceremony and have also given the evidence with regard to demand of dowry on the day of marriage and have also corroborated the prosecution story with regard to cruelty and harassment subjected to the deceased by the present appellants. Thus, it is not a case where the prosecution story is corroborated only by the family members but there is other corroborative evidence on record also.
29. Thus, on the basis of the aforesaid discussion and the appreciation of the evidence, this Court does not find any fault with the order of conviction and sentence imposed by the learned Sessions Judge. The appeal is accordingly dismissed. Since the appellant Nos. 2, 3 and 4 are on bail, therefore, their bail bonds shall stand cancelled.