Full Judgment
M.A.A. Khan, J.
1. Smt. Sushila deceased was married to Subash appellant on 5-7-87. While living with her husband and other appellants who are her husband's mother, elder brother, younger brother and elder brother's wife, Smt. Sushila died on 31-5-88 of burn injuries. The case of prosecution is that the deceased used to be harassed and treated with cruelty by the appellants for bringing insufficient dowry. It is further alleged that Smt. Sushila's mother P.W. 2, Smt. Kalavati, her sister-in-law P.W. 1 Smt. Maya Devi and her brother P.W. 4 Chanan Mai though tried to satisfy the demand of the appellants for dowry by giving a T.V. set, an electric fan and other articles yet their demand went on increasing. It is further alleged that on 22-5-88 when the above witnesses reached the house of the appellants they demanded a sum of Rs. 4,000/- from them failing which Smt. Sushila was to be tortured. After 8 or 10 days of the said incident, Smt. Sushila died of burn injuries and the incident was witnessed by several persons including P.W. 5 Lal Chand Shankla and P. W. 10 Smt. Nathi.
2. The FIR of the above incident was lodged by P.W. 4 Chanan Mal on 2-6-88. After investigation of the case the police charge-sheeted Bajrang Lal and Smt. Choti Devi appellants only for offences under Sections 304B, 306 and 498A, IPC and the learned Magistrate committed the case to the Court of Sessions against those two appellants only. The learned Additional Sessions Judge framed charges against Bajrang Lal and Smt. Choti Devi on 19-1 -89 for offences under Sections 304B, 498A and 306, IPC. However, on 1-3-89 Chanan Mal moved an application Under Section 319, Cr. P.C. through the Additional P.P. for summoning the remaining appellants as further accused in the case. On 2-3-89 the learned Additional Sessions Judge, accepted such prayer of the prosecution and summoned Subash, Sham Sunder and Smt. Slouching appellants as further accused in the case. After holding the trial of all the appellants the learned Additional Sessions Judge, vide his judgment and order dot. 15-5-91, found all the appellants guilty of the offences under Sections 304B and 498A, IPC and convicted and sentenced them for 10 years R.I. and fine of Rs. 500/- each and two years R.I. with fine of Rs. 500/- each respectively. They were acquitted of the offence Under Section 306, IPC. Hence this appeal.
3. Mr. H. S. Sandhu, the learned counsel for the appellants, submitted at the very out set that three appellants, namely Barging Lal, Sub hash and Sham Sunder have already been released from jail after having undergone the sentences awarded to them by the trial Court, after obtaining the benefit of remission in their respective sentences. It was, therefore, submitted that their appeal has become infructuous and may be dismissed for that reason. The learned Public Prosecutor has not disputed the facts as submitted by the- learned counsel. The record of the lower Court varifies the facts submitted by Mr. Sandhu. The appeal of Bajrang Lal, Subash and Shyam Sunder was not thus pressed by Mr. Sandhu and the same is accordingly dismissed.
4. For smt. Choti Devi it was submitted that she was a lady of about 60 years of age and has also remained in jail for more than six months. Mr. Sandhu further submitted that in the family set up the male appellants, particularly Bajrang Lal and Subash appellants played the dominating role and had the final say in family matters. It was thus submitted that though there may be satisfactory evidence against Bagrang Lal, Subash and Shyam Sunder appellants for their having treated the deceased with cruelty soon before her death of burn injuries, yet there was no such evidence against Smt. Choti Devi and Smt. Sulochana appellants. For Smt. Sulochana appellant it was submitted that she had not been charge-sheeted by the police and the cognizance taken against her by the learned Sessions Judge was bad in law in view of the provisions of Section 319, Cr.P.C.
5. I have examined the record of the lower Court in the light of the submissions advanced by Mr. Sandhu in respect of Smt. Choti Devi and Smt. Sulochana appellants. The occurrence which is stated to have taken place soon before the death of Sushila is dated 22-5-88. It was on that day that the demand for Rs. 4,000/- towards dowry is alleged to have been made by the appellants from the relatives of Smt. Sushila deceased. In such incident Smt. Sulochana is not stated to have taken any part. It is specifically mentioned that it was Smt. Choti Devi who had particularly made such a demand on 22-5-88.
6. For constituting the offence punishable Under Section 304B, IPC it is necessary that soon before death of the married lady she must have been harassed or cruelly treated for demand for dowry. The evidence against Smt. Choti Devi and Smt. Shakuntala Devi appellants on that ingredient of the offence Under Section 304B does not stand proved to my satisfaction in the facts and circumstances of the present case. Both of them deserves to be acquitted of the offence Under Section 304B, IPC.
7. There is however, sufficient evidence on the point that they had harassed and treated the deceased with cruelty for demand for more dowry from Smt. Sushila's relations. The offence Under Section.' 498A, IPC thus stands proved against both of them.
8. It is true that since the learned Additional Sessions Judge had recorded no evidence, as defined in Section 3 of the Evidence Act, so as to act Under Section 319, Cr. P.C. against such other persons who were not accused in the case, the summoning of Smt. Kaushlya Devi appellant as one of the Additional accused in the case was bad in law. But the additional accused, so summoned by the learned Sessions Judge Under Section 319, Cr. P.C. do not appear to have ever challenged the order dt. 2-3-1989 passed by the learned Sessions Judge against them. The Additional Sessions Judge not only completed the trial of the additional co-accused jointly with the original accused but also found them guilty of the offence they had been charged with. The appeal of two such additional accused has already become infructuous. Under these circumstances, when Smt. Kaushlya Devi herself appears to have undergone a part of sentence awarded to her for offence Under Section 498A, IPC it would not be proper to declare the trial against her as vitiated and without jurisdiction. The opinion expressed by this Court in the peculiar facts and circumstances of this case shall not make precedent for other cases.
9. In the result the appeals of Bajrang Lal, Subash & Shyam Sunder are dismissed.
10. Smt. Choti Devi and Smt. Kaushlya Devi are acquitted of the offence Under Section 304B, IPC.
11. The conviction of Smt. Choti Devi & Smt. Kaushlya Devi appellants for the offence Under Section 498A, IPC is hereby confirmed, but the sentence awarded to them for that offence by the trial court is reduced to the period already undergone by them. They shall however, pay an amount of Rs. two thousand five hundred each as fine which shall be, if realised be paid to Smt. Kalavati and in her absence to P.W. 4 Chanan Mai, by way of compensation. In case of dafault of fine they shall have to undergo R.I. for three months.
12. The judgment and order of the trial Court stand modified to the extent mentioned above. The appeal shall be treated as partly allowed.