1. This appeal is directed against the judgment dated 6.9.1995 passed by 1st Additional Sessions Judge, Balaghat in Sessions Trial No. 29/91 convicting appellant Tikaram for offences under sections 498-A, 306 and 304-B of the IPC and directing him to undergo rigorous imprisonment of 3 years and fine of Rs.200/- under section 498-A of the IPC, rigorous imprisonment of 7 years and fine of Rs.200/- under section 306 of the IPC and rigorous imprisonment of 7 years and fine of Rs.200/- under section 304-B of the IPC.
2. As per prosecution story deceased Kesharbai was married with appellant No.1 Tikaram. Appellant No. 2 Beniram is the father- in-law and appellant No. 3 Benubai is the mother-in-law of the deceased. During pendency of this appeal they have died. However, as per orders dated 1.2.1998 and 21.6.2004 the appeal stood abated against them. However, this appeal only survives for appellant No.1 Tikaram. At the time of solemnization of the marriage accused persons demanded golden ring and bicycle from the father of the deceased. The assurance to fulfill the said demand has been given after reaping the crops. It is alleged that appellant Tikaram, husband of the deceased and other accused persons have subjected her with cruelty to fulfill the demand of dowry. In this respect the deceased made complaint to her mother and father. On 29.10.1990 at about 11 a.m. Kesharbai fell down in a well. Co- accused Thunna alias Nanholal (brother-in-law of the deceased) seen the incident and made a cry to help. The dead bodies of Kesharbai and her son have been brought up with the help of villagers while she was died. Marg was registered and investigation was performed by the police. Offence under sections 498-A, 304-B and 306 of the IPC was registered. As the offence was triable by the Court of Session, however, the case was committed to frame the charges before the Sessions Court. The charges for offences under sections 498-A/34, 304-B and 306 of the IPC were framed against accused Tikaram, Beniram, Benibai and Thunna alias Nanholal.
3. The accused persons have abjured their guilt and under section 313 Cr.P.C. put their defence that the deceased fell down in the well while picking up lime and she has not committed suicide. In defence statement of one Jugram (DW-1) has been adduced.
4. The trial Court considering the statement of 12 prosecution witnesses, particularly relying upon the statements of Chunnilal (PW-8) and Ramchand (PW-9) recorded a finding that the charges as framed against the appellants has been fully established by the prosecution beyond reasonable doubt and the appellants are unable to explain any natural circumstance in which death of the deceased has taken place within a period of 7 years. However, convicted three of them and acquitted co-accused Thunna alias Nanholal (Devar of the deceased).
5. Learned counsel appearing on behalf of the appellants has drawn my attention to the statement of Chunnilal (PW-8) to demonstrate the fact that there is no evidence available on record that soon before the death, deceased was subjected to cruelty and harassment establishing nexus to the death. In absence of such evidence, conviction under section 304-B of the IPC is not warranted. It has been further contended by Shri Vineet Mishra, counsel appearing on behalf of the appellants that the evidence of abetment as defined under section 107 of the IPC is not available. However, the charge under section 306 of the IPC cannot be found proved. The finding as recorded by the trial Court in this regard is without any basis and material available on record. Therefore, the conviction under sections 306 as well as under section 304-B of the IPC as directed by the trial Court is liable to be set aside. Learned counsel further submits that the evidence of cruelty is not available against any of the accused persons in view of the prosecution allegation as well as in the statements of prosecution witnesses. Therefore, offence under section 498-A of the IPC is also not made out. Therefore, the appeal filed by the appellants may be allowed by setting aside the judgment of conviction and sentence passed by the trial Court.
6. On the other hand, Smt. Sheetal Dubey, learned Govt. Advocate appearing on behalf of the State has drawn my attention to the statements of Chunnilal (PW-8) and Ramchand (PW-9) to demonstrate the fact that the evidence of continuous demand of dowry since the date of marriage is available, therefore, the trial Court has not committed any error in convicting the appellant for the offence under section 304-B of the IPC. Learned Govt. Advocate argued in support of the finding of conviction recorded under section 306 of the IPC, but she is not in a position to demonstrate before this Court that the ingredients of abetment of commission of suicide is available on the basis of material collected and the evidence recorded before the trial Court. It is also urged by Smt. Dubey that allegation of the prosecution subjecting the deceased with cruelty is fully established coupled with the demand of dowry. Therefore, conviction under section 498-A of the IPC as directed by the trial Court may be maintained.
7. After hearing the learned counsel appearing on behalf of the parties I have gone through the statement of Chunnilal (PW-8), father of deceased Kesharbai. As per his statement it is apparent that demand of one golden ring and bicycle was there since the date of marriage in 1988 and continued only up-to May, 1989. Thereafter some meetings were organised and thereafter the appellant and deceased were residing in the in-laws house. After those meetings evidence of the demand of dowry and subjecting the deceased with cruelty is missing. The date of incident is 19.10.1990 i.e. after more than one year. As per ingredients under section 304-B of the IPC, prosecution is required to produce some evidence of demand of dowry and subjecting the deceased with cruelty and harassment which is conspicuously missing in this case. It is further seen that the statement of mother of the deceased has not been recorded. Statement of Ramchand (PW-9) who is cousin and son of elder brother of Chunnilal (PW-8), father of the deceased, has been recorded which is akin to the statement of Chunnilal (PW-8), but in their statement no material has been brought before the Court regarding cruelty, harassment and demand of dowry soon before the death. In view of this, I am of the opinion that charge under section 304-B of the IPC cannot be established by the material available on record and the trial Court has committed error in convicting the appellants under section 304-B of the IPC.
8. So far as conviction for the charge under section 306 of the IPC is concerned, looking to the prosecution version and the evidence as available on record no whisper of evidence is available to demonstrate the charge of abetment of commission of suicide. It is relevant to mention here that after 15 days of the death of Kesharbai statement of her father was recorded by the investigating agency wherein the allegation of demand of dowry has been made first time, without showing any instigation to commit suicide. In this view of the matter, conviction under section 306 of the IPC is not warranted. The trial Court committed an error in convicting the appellant for the said charge.
9. Now in dealing with the conviction under section 498-A of the IPC and on reading the statement of the father of the deceased it is apparent that demand of dowry was made to the deceased and she was subjected to cruelty immediately after the marriage. Such demand of dowry and cruelty cannot be soon before her death but some evidence is available to that effect. In view of the foregoing discussion and looking to the material I am of the opinion that conviction of the appellant under section 498-A of the IPC deserves to be maintained and the finding recorded by the trial Court remains unaltered to the said charge. At this stage Shri Mishra, learned counsel appearing on behalf of the appellant submits that during the pendency of the trial and the appeal before this Court the appellant has remained in custody for more than two and half years. However, maintaining the conviction under section 498-A of the IPC the sentence of imprisonment already undergone may be treated as sufficient. On the other hand, Smt. Dubey, learned Govt. Advocate appearing on behalf of the State on the point of sentence submitted that it is discretion of the Court what sentence may be awarded.
10. In view of the foregoing discussion conviction and sentence for the charge under sections 304-B and 306 of the IPC are set aside. The finding as recorded by the trial Court while convicting the appellant under section 498-A of the IPC is maintained but the sentence is reduced to the period already undergone looking to the date of incident and pendency of the case which has taken place about 20 years back. However, the sentence already undergone would be sufficient in the facts and circumstances of the case.
11. In the result, the appeal is allowed in part. The conviction and sentence for the charge under sections 304-B and 306 of the IPC are set aside while conviction of the appellant under section 498-A of the IPC is maintained but the sentence awarded by the trial Court is reduced to the period already undergone by him. The appellant is on bail. His bail-bonds shall stand discharged.