Hari Singh Vs. State of Punjab - Court Judgment

SooperKanoon Citationsooperkanoon.com/635649
SubjectCriminal
CourtPunjab and Haryana High Court
Decided OnMay-31-2002
Case NumberCriminal Appeal No. 663-DB of 2000
Judge Amar Bir Singh Gill and; V.M. Jain, JJ.
Reported inI(2003)DMC654
ActsDowry Prohibition Act, 1961 - Sections 2; Indian Penal Code (IPC), 1860 - Sections 304B and 306
AppellantHari Singh
RespondentState of Punjab
Appellant Advocate R.K. Handa, Adv.
Respondent Advocate Rita Kohli, DAG
Cases ReferredIn Ramesh Kumar v. State of Chhattisgarh
Excerpt:
- v.m. jain, j.1. this is an appeal against the judgment and order dated 16.11.2000 passed by the additional sessions judge, patiala, convicting accused appellant hari singh under section 304b, i.p.c. and sentencing him to undergo imprisonment for life. however, co-accused smt. debo was acquitted by the learned trial judge.2. the facts of the case, in brief, are that on 24.5.1998, smt. nachhatro made statement ex. ph, before s.i. kuldip singh, at the spot, on the basis of which formal fir ex. ph/1 was recorded in ps g.r.p.s., patiala at 10.15 p.m. on 24.5.1998, under section 304b, i.p.c. in the said statement, ex. ph, it was alleged by smt. nachhatro that she was resident of village khanpur, p.s. kharar, district ropar and that her husband, who was a labourer, had expired about three years ago. she stated that her younger daughter nirmala @ nimo deceased was married to accused had singh in the month of february, 1996 and that she had given dowry articles in the marriage according to her capacity. it was alleged that after some days of the marriage, accused had singh came to village khanpur along with smt. nirmala deceased and at that time her daughter nirmala told her that her husband and mother-in-law smt. debo accused were harassing her for bringing insufficient dowry and that they were demanding more dowry. it was alleged that being poor, they were not in a position to give more dowry. it was alleged that because of their demand for more dowry, accused hari singh and smt. debo, accused used to maltreat smt. nirmala, deceased and used to give her beating for bringing less dowry. it was alleged that whenever her daughter smt. nirmala used to come to her, she would always complain against her husband and mother-in-law about maltreatment and demand of dowry. it was alleged that she (smt. nachhatro) and her sons used to send her back to the house of her in-laws, after making her understand. it was alleged that they had been telling the accused that they could not meet their demand for more dowry, being poor. it was alleged that on 16.5.1998, her daughter smt. nirmala along with her husband had singh accused came to their house at village khanpur and at that time smt. nirmala told her and her sons raghbir singh and ranbir singh that her husband and mother-in-law were pressing hard for bringing rs. 20,000/-. it was alleged that thereupon she and her sons asked had singh accused as to why he was demanding money, whereupon hari singh told them that he wanted to construct house and for that reason he wanted money. it was alleged that they told him that since they had no money, they would give after a few days after arranging it. it was alleged that on that day i.e. on 24.5.1998, hari singh, accused told her at her house that smt. nirmala was missing from his house since morning. it was alleged that they made a search and came to know at zirakpur that a woman was killed after jumping under a train, whereupon they went to the spot and identified the dead body. it was the dead body of her daughter smt. nirmala. it was alleged that her daughter nirmala had committed suicide by jumping under the train, due to harassment by her husband hari singh and her mother-in-law smt. debo, on account of demand of dowry. on 24.5.1998, while si kuldip singh was posted as sho, g.r.p.s., .patiala, he was informed about the rail accident between railway stations ghaggar and chandigarh and accordingly he reached the spot and found the dead body of a lady crushed under the train. the dead body was identified as nirmala @ nimo, wife of hari singh. thereafter, si kuldip singh recorded statement ex. ph of smt. nachhatro and thereafter sent the same to p.s. with his endorsement, on the basis of which formal fir ex. ph/1 was recorded. sub-inspector kuldip singh inspected the spot and lifted blood stained stones arid took the same into possession, after those were duly sealed. kuldip singh prepared rough site plan ex. pl and sent the dead body for post-mortem examination through police constable. after post-mortem examination, the constable produced clothes of the deceased before si kuldip singh and he took the same into possession vide recovery memo. on 27.5.1998, si kuldip singh arrested accused hari singh. on 2.6.1998, si dalip singh arrested accused smt. debo. si kuldip singh recorded statements of the p.ws. after completion of investigation, challan was submitted in the court.3. learned additional sessions judge charged both the accused, namely hari singh and smt. debo, under section 304b and in the alternative under section 306,i.p.c., to which charges both the accused pleaded not guilty and claimed to be tried. the prosecution, in support of its case, examined p.w. 1 mhc mangal singh; p.w. 2 constable gurjit singh; p.w. 3 constable jasvir singh; p.w. 4 sanjiv kapoor, junior engineer; p.w. 5 asi shambu dutt; p.w. 6 hc sohan ram; p.w. 7 dr. adarshjot kaur; p.w. 8 smt. nachhatro, complainant; p.w. 9 ranbir singh, and p.w. 10 si kuldip singh. the statements of accused under section 313, cr. p.c. were recorded, in which they denied the prosecution allegations against them and stated that they were innocent and had been falsely implicated in this case. accused hari singh stated that he never demanded dowry and that the cause of the death was not dowry but was illicit relations of his wife smt. nimo with her brother-in-law kuki, who resided at chandigarh. he stated that his father along with member panchayat of their village had gone to the village of smt. nimo i.e. khanpur and there sucha singh met them and he called a panchayat of their community and told them about the illicit relations between smt. nimo and kuki. it was alleged that sucha singh asked smt. nachattar kaur, p.w. to advise her daughter to stay away from kuki. it was alleged that about the illicit relations of smt. nimo with kuki, the entire village i.e. village pir machhaila, knew about it. smt. debo accused, in her statement, stated that she was not residing with her son but was residing with her husband separately. she also made a similar statement as made by accused hari singh about the illicit relations of smt. nimo and kuki. in their defence, the accused examined d.w. 1 ajit singh and d.w. 2 prem singh.4. learned additional sessions judge, after hearing both sides and after perusing record, acquitted accused smt. debo but convicted accused hari singh under section 304b, i.p.c and sentenced him to undergo imprisonment for life, vide judgment and order dated 16.11.2000. aggrieved against this judgment and order of the learned addl. sessions judge, hari singh, accused has filed the present appeal in this court.5. we have heard the learned counsels for the parties and have gone through the record carefully.6. learned counsel appearing for the accused appellant submitted before us that no case under section 304b, i.p.c. was made out, inasmuch as neither there was any demand for dowry nor there was any harassment on that account. it was submitted that even the allegation regarding demand of rs. 20,000/- was false and in any case this demand was not towards dowry but towards construction of a house. it was further submitted that the deceased was having illicit relations with her brother-in-law and when they were caught in compromising position, she committed suicide, out of shame. it was submitted that the evidence of d.w. 1 ajit singh and d.w. 2 prem singh would fully prove about the illicit relations of smt. nirmala @ nimo with her brother-in-law kuki. it was, further submitted that the letter ex. pj, allegedly written by smt. nimo deceased and produced by p.w. 9 ranbir singh, was not proved on the record and would also not help the prosecution, as the said letter was written about two years prior to the present occurrence.7. on the other hand, learned counsel appearing on behalf of the state submitted that from the testimony of p.w. 8 smt. nachhatro and p.w. 9 ranbir singh, it was proved on the record that accused hari singh had been harassing smt. nimo deceased on account of dowry and they had also been demanding rs. 20,000/- from her mother. it was further submitted that letter ex. pj was fully proved on the record, from the evidence led by the prosecution. it was further submitted that it was proved on record that smt. nirmla had died an unnatural death within seven years of her marriage on account of harassment given to her by accused hari singh, on account of dowry, soon before her death. it was submitted that the presumption, as given in section 113b of the indian evidence act, would clearly prove the offence under section 304b, i.p.c. against accused hari singh. it was further submitted that the story put forth by the accused about the illicit relations between the deceased and her brother-in-law kuki is highly improbable, especially when the evidence of d.w. 1 ajit singh and d.w. 2 prem singh is not worthy of any reliance.8. in the present case, as referred to above, accused appellant hari singh and his co-accused smt. debo (since acquitted) were charged under section 304b, i.p.c. and in the alternative under section 306, i.p.c. the learned addl. sessions judge, while holding accused hari singh guilty had held that from the statements of p.w, 8 smt. nachhatro and p.w. 9 ranbir singh, it stands proved beyond reasonable doubt that accused hari singh had been demanding dowry and since the demand was not fulfilled, accused hari singh had harassed his wife smt. nirmala, due to which she had died an unnatural death, leaving behind two minor children. it was further held that from the letter ex. pj, it was proved that the deceased was being maltreated by the accused in the matrimonial home. the learned trial court accordingly found that the prosecution was successful in proving its case against accused hari singh beyond reasonable doubt and, accordingly, he was held guilty of the charge framed against him under section 304b, i.p.c. and was sentenced to undergo imprisonment for life.9. as per the case of the prosecution, the marriage of smt. nirmala @ nimo deceased with accused hari singh had taken place in the month of february 1996. present occurrence had taken place on the morning of 24.5.1998. smt. nirmala deceased had committed suicide by jumping in front of a running train, on the morning of 24.5.1998.10. the case of the prosecution is that smt. nirmala had committed suicide because she was being harassed by accused hari singh as she had failed to fulfil the demand for dowry and also demand for rs. 20,000/- made by accused hari singh. on the other hand, case of the accused is that smt. nirmala deceased had committed suicide out of shame because she was having illicit relations with her brother-in-law kuki. in order to prove its case, prosecution had examined p.w. 8 smt. nachhatro and p.w. 9 ranbir singh (brother), who had proved letter ex. pj. on the other hand, in order to prove its case, accused had examined d.w. 1 ajit singh and d.w. 2 prem singh.11. letter ex. pj was produced in the court by p.w. 9 ranbir singh, when he appeared in the witness box. he stated that his sister had written the said letter to his elder brother, regarding demand of dowry. he stated that he recognised the handwriting of his sister in letter ex. pj. during cross-examination, he admitted that the letter ex. pj was not signed by smt. nirmala. he, however, stated that the name of his sister is mentioned in the column meant for the name of sender and that it was in the hand of his sister. he stated that his sister had studied upto 5th class, but he had not brought certificate regarding her qualification, though it was lying at the house. he stated that he had only brought one letter written by his sister, even though she had also written other letters. he admitted that dowry was not specifically mentioned in the letter ex. pj and stated that the demand for sandhara amounted to the demand of dowry. he stated that he was under matric.12. in our opinion, letter ex. pj would not prove that smt. nirmala @ nimo was being harassed due to demand of dowry and its non-fulfilment. in the said letter, the reference is only to sandhara and not dowry. in fact, p.w. 9 randhir singh had himself admitted that in the letter ex. pj, demand of dowry had not been specifically mentioned. however, only demand of sandhara was mentioned. there is nothing to indicate that demand of sandhara was equivalent to demand of dowry. under section 304b, i.p.c. it has been specified that dowry shall have the same meaning as it has been given in section 2 of the dowry prohibition act, 1961. as per section 2 of. the dowry prohibition act, 1961, dowry would mean any property or valuable security given or agreed to be given either directly or indirectly by one party to a marriage to the other party to the marriage or by the parent of either party to a marriage or by any other person to either party to the marriage or to any other person, at or before or any time after the marriage, in connection with the marriage of the said party. in the said definition of dowry, there is nothing to indicate that demand for sandhara would also be covered by the definition of dowry. sandhara is generally given on the occasions of festivals like lohri, karva chauth, holi, etc. from the girl's side to the boy's side. furthermore, letter ex. pj is dated 27.5.1996 i.e. about 2 years prior to the present occurrence i.e. 24.5.1998. under these circumstances, in our opinion, this letter ex. pj could not be made the basis for holding that soon before her death smt. nirmla, deceased was subjected to cruelty or harassment by her husband for or in connection with any demand of dowry. under these circumstances, in our opinion, letter ex. pj in any case would not improve the case of the prosecution, with regard to the offence under section 304b, i.p.c.13. now we are left only with the oral testimony of p.w. 8 smt. nachhatro and p.w. 9 ranbir singh. p.w. 8 smt. nachhatro had deposed that one week after the marriage, accused hari singh had come along with nirmala deceased to her house and at that time, nirmala had told her that hari singh accused was harassing her for bringing less dowry and she had told her daughter nirmala that she would complete the dowry slowly part by part. she stated that till her daughter died, accused were harassing her daughter for bringing less dowry. she deposed that accused hari singh had come along with nirmala and had demanded rs. 20,000/- and she had assured hari singh that she would pay the said amount. during cross-examination, she deposed that at the time when talks for marriage took place through mediator, there was no talk regarding dowry. she stated that when hari singh came to her house after marriage, she had not asked hari singh as to why he was asking for money. she stated that she had told the panchayat of her vicinity regarding the demand of dowry and she was not advised to go to the police by the panchayat. she stated that she had not talked to the panchayat of the village of her in-laws about the demand of dowry. she stated that the accused had demanded rs. 20,000/- for the construction of the house. p.w. 9 ranbir singh deposed that after 3 months of the marriage, accused had started demanding dowry. he stated that about 8 days prior to her death, accused hari singh and smt. nirmla deceased had come to their house and at that time smt. nirmla had told them that the accused were demanding rs. 20,000/- for construction of separate house, as they were being separated from joint residence. he stated that he had promised accused hari singh that after a month he would give as much money as he could arrange. he stated that on the next day, they left for their house. during cross-examination, he stated that his mother had talked to him regarding the demand of rs. 20,000/-.14. in our opinion, from the evidence led by the prosecution, in the form of statements of p.w. 8 smt. nachhatro and p.w. 9 ranbir singh, it could not be said that accused hari singh had harassed or maltreated smt. nirmala deceased on account of any demand for dowry, soon before her death. smt. nirmala deceased was having two children at the time of occurrence. there is nothing to indicate that the complainant side had ever lodged any complaint, either with the police or with the panchayat of the village of the accused, about the demand of dowry. the demand for rs. 20,000/- for the construction of house could not be termed as demand for dowry. in our opinion, the prosecution has failed to prove that smt. nirmala deceased was being harassed by the accused on account of insufficient dowry or for demand of dowry. thus, one of the ingredients of section 304b, i.p.c., is missing in this case. hence accused hari singh could not be convicted for the offence under section 304b, i.p.c.15. however, the matter does not rest here. accused hari singh was charged under section 304b, i.p.c. and in the alternative for the offence under section 306, i.p.c. even if the offence under section 304b, i.p.c. is not made out, on the facts and circumstances of the present case, because dowry was not the cause of death, yet, in our opinion, offence under section 306, i.p.c. is clearly made out against accused hari singh in this case. as referred to above, the marriage had taken place in february 1996, whereas the present occurrence had taken place on 24.5.1998 i.e. just after 2 years and 3 months of the marriage. smt. nirmala deceased had committed suicide by jumping in front of a running train. if she was compelled to commit suicide by accused hari singh, he would be guilty of the offence under section 306, i.p.c. from the facts and circumstances of the present case, it is fully proved that smt. nirmala deceased was compelled by accused hari singh to commit suicide. it has come from the evidence of p.w. 8 smt. nachhatro and p.w. 9 ranbir singh that accused hari singh had demanded rs. 20,000/- from srnt. nirmala deceased and her mother for the construction of house and since smt. nirmala and her family members failed to fulfil this demand, accused hari singh had harassed her to the extent that she committed suicide. evidence of p.w, 8 and p.w. 9 namely smt. nachhatro and ranbir singh, respectively, in our opinion, is cogent and convincing and would be sufficient to hold that accused hari singh had compelled, smt. nirmala deceased to commit suicide, especially when the evidence of these witnesses finds corroboration from letter ex. pj written by smt. nirmala deceased, regarding harassment.16. section 113a of the indian evidence act reads as under:'113-a. presumption as to abetment of suicide by a married woman-when the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or such relative of her husband.explanation-for the purpose of this section 'cruelty' shall have the same meaning as in section 498a of the indian penal code (45 of i860).'17. from a perusal of the above, it would be clear that when the question is whether commission of suicide by a woman had been abetted by her husband or by a relative of her husband and it is shown that she had committed suicide within a period of 7 years from the date of marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. it would also be clear from the above that for the purpose of this section, term 'cruelty' shall have the same meaning as given in section 498a, i.p.c. as per section 498a, i.p.c., cruelty would mean 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 of the woman or 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.18. in the present case, as referred to above, it was fully proved on the record that smt. nirmala deceased was harassed by accused hari singh with a view to meet his demand for rs. 20,000/- (for the construction of a separate house). it is also proved on the record that the conduct of accused hari singh was such that it was likely to drive smt. nirmala deceased to commit suicide. once it is proved that accused hari singh had caused cruelty to smt. nirmala deceased, the provision of section 113a of the indian evidence act would apply to this case, especially when smt. nirmala deceased had committed suicide within 7 years of her marriage. ,19. in pawan kumar v. state of haryana, ii (2001) dmc 7 (sc))=ii (2001) slt 646=air 2001 sc 1324, it was held by the hon'ble supreme court that incorporation of section 113a of the evidence act in the statute book, depicts legal presumption, though, however, the time period of within 7 years of marriage is the pre-requisite for such a presumption. in the reported case, the hon'ble supreme court upheld the findings of the courts below, holding the accused guilty for the offence under sections 306 and 498-a, i.p.c in ramesh kumar v. state of chhattisgarh, ii (2001) dmc 636 (sc)=vii (2001) slt 356=jt 2001 (8) sc 599, it was observed by the hon'ble supreme court that section 113a of the evidence act was introduced by criminal law (second) amendment act, 1983 w.e.f. 26.12.1983 to meet a social demand to resolve difficulty of proof where helpless married women were eliminated by being forced to commit suicide by the husband or in-laws and incriminating evidence was usually available within the four corners of the matrimonial home and hence was not available to any one outside the occupants of the house. after considering the provisions of section 113a of the evidence act, referred to above, it was held by the hon'ble supreme court as under:'a bare reading of section 113a shows that to attract applicability of section 113a, it must be shown that, (i) the woman has committed suicide; (ii) such suicide has been committed within a period of seven years from the date of her marriage; (iii) the husband or his relatives, who are charged had subjected her to cruelty. on existence and availability of the above said circumstances, the court may presume that such suicide had been abetted by her husband or by such relatives of her husband. the parliament has chosen to sound a note of caution. firstly, the presumption is not mandatory it is only permissive as the employment of expression 'may presume' suggests. secondly, the existence and availability of the above said three circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be drawn the court shall have to have regard to all the other circumstances of the case. a consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the court to abstain from drawing the presumption. the expression the other circumstances of the case' used in section 113a suggests the need to reach a cause and effect relationship between the cruelty and the suicide for the purpose of raising a presumption. last but not the least the presumption is not an irrebutable one. in spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. the phrase 'may presume' used in section 113a is defined in section 4 of the evidence act, which says whenever it is provided by this act that court may presume a fact, it may either regard such fact as proved, unless and until it is disproved or may call for proof of it'.'20. in the present case, as referred to above, from the evidence of p.w. 8 smt. nachhatro and p.w. 9 ranbir singh it stands fully proved on the record that accused hari singh had been harassing smt. nirmala deceased on account of insufficient sandhara, as mentioned in letter ex. pj and for having not met his demand for rs. 20,000/- and had thereby compelled her to commit suicide when the said demand was not met. in our opinion, the ingredients of section 306, i.p.c. are fully proved in this case against accused hari singh, inasmuch as it stands fully proved on the record that, (i) deceased smt. nirmala had committed suicide; (ii) she had committed suicide within seven years from the date of her marriage; and (iii) accused hari singh (husband) had subjected her to cruelty. once these allegations are proved on the record, in our opinion, the court is competent to presume that the suicide committed by smt. nirmala had been abetted by her husband hari singh, accused. this is especially so, keeping in view the other circumstances of the case, namely the allegations made by the accused against smt. nirmala deceased (regarding her character), which are found to be false, as per discussion in the subsequent paras.21. in the present case, accused hari singh, in his statement under section 313, cr. p.c, had taken the plea that the cause of death was illicit relations of his wife smt. nirmala @ nimo with her brother-in-law kuki. he stated that his father along with member panchayat of his village had gone to village khanpur i.e. village of smt. nimo and there the panchayat of their community was called and was informed about the illicit relations between smt. nimo and kuki. he stated that there smt. nachhatro was told to advise her daughter smt. nimo to abstain from kuki. he stated that the entire village i.e. village pir machhaila knew about the illicit relations of smt. nimo with kuki. in his defence evidence, accused examined d.w. 1 ajit singh and d.w. 2 prem singh, in support of his plea, about the illicit relations between smt. nimo deceased and her brother-in-law kuki. d.w. 1 ajit singh had stated that he got up early in the morning and saw kuki entering her room and at that time accused hari singh had left his village for ambala, two days prior thereto. he stated that smt. nirmala deceased and her brother-in-law kuki were having illicit relations. he stated that after seeing kuki entering her room, he informed the father-in-law of smt. nimo,.regarding the presence of kuki in the house. he stated that thereafter ram partap, father-in-law of smt. nimo went to the house of prem singh, sarpanch while he (ajit singh) remained standing on the road near his house. he stated that after half an hour, ram partap along with prem singh, sarpanch came there besides jai singh (present sarpanch). he stated that thereafter, he (ajit singh) and prem singh, sarpanch pushed the door of the room and they saw that kuki and smt. nimo, deceased were lying together on a bed in a compromising position. he stated that thereafter kuki came out of the room and they told him that it was not good for him and also advised him not to indulge in these things and thereafter kuki left the house of hari singh, accused. he stated that thereafter he (ajit singh) went to his own house. during cross-examination on behalf of the prosecution, he stated that he did not know the date and month of the incident referred to above. he, however, stated that kuki had entered the house of hari singh at about 3.30 a.m. he stated that his house (ajit singh's) was adjacent to the house of hari singh accused. he stated that when he and prem singh gave push to the door of the house of the accused, the door opened of its own. he stated that he identified kuki in the street light. he, however, stated that there was no light in the room of the house of hari singh, accused. he stated that he had not identified kuki or smt. nimo deceased inside the house. he stated that no written complaint was made to any person or authority, either by him or by the accused. he denied the suggestion that he had deposed falsely.22. d.w. 2 prem singh stated he was sarpanch of village pir machhaila from 1993 to 1998. he stated that about 2 1/2 years back, ram partap (father of accused hari singh) had come to him and told him that kuki was in the house of hari singh, accused. he stated that hari singh had left for ambala about two days prior thereto. he stated that kuki was brother-in-law of nirmala deceased. he stated that father of hari singh, accused had told him that kuki had illicit relations with nirmala @ nimo. he stated that he along with ram partap had come to the house of hari singh, accused and at that time jai singh, jarnail singh and ajit singh were present there. he stated that on inquiry, ram partap told him that kuki was inside the house of hari singh. he further stated that ram partap had not opened the door of the house but ajit singh had pushed the door of the room and door was opened and at that time nimo and kuki were lying on a bed in a compromising position. he stated that he had advised him that it was not good on his part and even earlier to this incident he had advised him not to indulge in these things. he stated that they also advised him to leave the village and he left. he stated that they also advised smt. nimo deceased not to indulge in such habits and ruin family life. he stated that thereafter they left for their house. he stated that subsequently, he came to know that smt. nimo had committed suicide. he stated that she had committed suicide because the relationship between smt. nimo and kuki had been exposed and she could not tolerate it and hence committed suicide. he stated that being the sarpanch he had visited the place of occurrence and had seen some police officials present there. later on, the thanedar had also reached there. he, however, stated that he had not disclosed anything to the thanedar qua this occurrence. during cross-examination on behalf of the prosecution, he stated that he knew kuki about 7-8 months prior to this occurrence though he did not lodge any written complaint nor had reported the matter to the police. he denied the suggestion that he had deposed falsely. he, however, stated that hari singh had two children out of wedlock with smt. nimo deceased.23. from a perusal of the stand taken by accused hari singh, in his statement under section 313, cr. p.c., and statements of d.w. 1 ajit singh and d.w. 2 prem singh, produced by the accused in his defence, it would be clear that even though accused hari singh in his statement had not said anything about smt. nirmala deceased having been found in a compromising position with her brother-in-law kuki, just prior to the occurrence, d.w. 1 ajit singh and d.w. 2 prem singh had deposed that they had seen smt. nirmala and her brother-in-law kuki in comprising position just prior to the incident. in our opinion, the defence story put up by the accused and his witnesses is highly improbable. d.w. 2 prem singh, sarpanch stated that after the suicide he had found some police officials present there and even the thanedar had reached there, yet he had not disclosed anything to the thanedar regarding the occurrence i.e. regarding nirmala deceased having been found in compromising position with her brother-in-law kuki, prior to the suicide, or that she had committed suicide out of shame. if any such thing had happened prior to the present occurrence, to the knowledge of ram partap, father of accused hari singh, besides d.w. 1 ajit singh and d.w. 2 prem singh, this would have been told to the police when smt. nirmala had committed suicide and accused hari singh and his co-accused were arrested in this case, at the instance of smt. nachhatro (mother of the deceased). however, admittedly, the police was not informed in this regard. furthermore, as referred to above, hari singh accused, in his statement under section 313, cr. p.c., had only stated that smt. nirmala deceased and her brother-in-law kuki were having illicit relations and that the panchayat of his village had gone to the village of smt. nirmala and panchayat of the community was convened and they were told about it. no witness has been examined in support of convening of any such panchayat. furthermore, hari singh, accused in his statement under section 313, cr. p.c, is absolutely silent about the incident of smt. nirmala and kuki just prior to the present occurrence. furthermore, the allegation of d.w. 1 ajit singh that smt. nirmala deceased and her brother-in-law kuki were having illicit relations is not even admissible, since it is based on hearsay evidence. d.w. 1 ajit singh had also stated that since there was no light inside the room of accused hari singh, he had not identified kuki and smt. nirmala deceased inside the house. if that be so, there was no question of d.w. 1 ajit singh or d.w. 2 prem singh having witnessed smt. nirmala deceased and her brother-in-law kuki in compromising position. d.w. 2 prem singh had staled that the father of the accused hari singh had told him that kuki had illicit relations with smt. nirmala. this evidence of d.w. 2 prem singh regarding illicit relations, is also hearsay. furthermore, ram partap (father of accused hari singh) had not been examined.24. in view of the above, in our opinion, the defence story put forth by the accused regarding the cause of suicide, cannot be accepted.25. once it is found that smt. nirmala deceased had committed suicide within seven years of her marriage and that accused hari singh (husband) had subjected her to cruelty, in our opinion, it could certainly be said that accused hari singh had abetted the suicide committed by smt. nirmala, deceased. this is especially so, when the cause for suicide alleged by the accused in his statement under section 313, cr. p.c. has been found to be false. in our opinion, the offence under section 306, i.p.c. is fully proved against accused hari singh, on the facts and circumstances of the present case and he is liable to be convicted thereunder.26. in view of our detailed discussion above, the present appeal is partly accepted. the conviction and sentence awarded to accused hari singh under section 304b, i.p.c. is set aside and instead accused hari singh is convicted for the offence under section 306, i.p.c. furthermore, taking into consideration the facts and circumstances of the present case, accused hari singh is sentenced to undergo r1 for 5 years, for the offence under section 306, i.p.c.
Judgment:

V.M. Jain, J.

1. This is an appeal against the judgment and order dated 16.11.2000 passed by the Additional Sessions Judge, Patiala, convicting accused appellant Hari Singh Under Section 304B, I.P.C. and sentencing him to undergo imprisonment for life. However, co-accused Smt. Debo was acquitted by the learned trial Judge.

2. The facts of the case, in brief, are that on 24.5.1998, Smt. Nachhatro made statement Ex. PH, before S.I. Kuldip Singh, at the spot, on the basis of which formal FIR Ex. PH/1 was recorded in PS G.R.P.S., Patiala at 10.15 p.m. on 24.5.1998, Under Section 304B, I.P.C. In the said statement, Ex. PH, it was alleged by Smt. Nachhatro that she was resident of Village Khanpur, P.S. Kharar, District Ropar and that her husband, who was a labourer, had expired about three years ago. She stated that her younger daughter Nirmala @ Nimo deceased was married to accused Had Singh in the month of February, 1996 and that she had given dowry articles in the marriage according to her capacity. It was alleged that after some days of the marriage, accused Had Singh came to Village Khanpur along with Smt. Nirmala deceased and at that time her daughter Nirmala told her that her husband and mother-in-law Smt. Debo accused were harassing her for bringing insufficient dowry and that they were demanding more dowry. It was alleged that being poor, they were not in a position to give more dowry. It was alleged that because of their demand for more dowry, accused Hari Singh and Smt. Debo, accused used to maltreat Smt. Nirmala, deceased and used to give her beating for bringing less dowry. It was alleged that whenever her daughter Smt. Nirmala used to come to her, she would always complain against her husband and mother-in-law about maltreatment and demand of dowry. It was alleged that she (Smt. Nachhatro) and her sons used to send her back to the house of her in-laws, after making her understand. It was alleged that they had been telling the accused that they could not meet their demand for more dowry, being poor. It was alleged that on 16.5.1998, her daughter Smt. Nirmala along with her husband Had Singh accused came to their house at Village Khanpur and at that time Smt. Nirmala told her and her sons Raghbir Singh and Ranbir Singh that her husband and mother-in-law were pressing hard for bringing Rs. 20,000/-. It was alleged that thereupon she and her sons asked Had Singh accused as to why he was demanding money, whereupon Hari Singh told them that he wanted to construct house and for that reason he wanted money. It was alleged that they told him that since they had no money, they would give after a few days after arranging it. It was alleged that on that day i.e. on 24.5.1998, Hari Singh, accused told her at her house that Smt. Nirmala was missing from his house since morning. It was alleged that they made a search and came to know at Zirakpur that a woman was killed after jumping under a train, whereupon they went to the spot and identified the dead body. It was the dead body of her daughter Smt. Nirmala. It was alleged that her daughter Nirmala had committed suicide by jumping under the train, due to harassment by her husband Hari Singh and her mother-in-law Smt. Debo, on account of demand of dowry. On 24.5.1998, while SI Kuldip Singh was posted as SHO, G.R.P.S., .Patiala, he was informed about the rail accident between Railway Stations Ghaggar and Chandigarh and accordingly he reached the spot and found the dead body of a lady crushed under the train. The dead body was identified as Nirmala @ Nimo, wife of Hari Singh. Thereafter, SI Kuldip Singh recorded statement Ex. PH of Smt. Nachhatro and thereafter sent the same to P.S. with his endorsement, on the basis of which formal FIR Ex. PH/1 was recorded. Sub-Inspector Kuldip Singh inspected the spot and lifted blood stained stones arid took the same into possession, after those were duly sealed. Kuldip Singh prepared rough site plan Ex. PL and sent the dead body for post-mortem examination through police Constable. After post-mortem examination, the Constable produced clothes of the deceased before SI Kuldip Singh and he took the same into possession vide recovery memo. On 27.5.1998, SI Kuldip Singh arrested accused Hari Singh. On 2.6.1998, SI Dalip Singh arrested accused Smt. Debo. SI Kuldip Singh recorded statements of the P.Ws. After completion of investigation, challan was submitted in the Court.

3. Learned Additional Sessions Judge charged both the accused, namely Hari Singh and Smt. Debo, Under Section 304B and in the alternative Under Section 306,I.P.C., to which charges both the accused pleaded not guilty and claimed to be tried. The prosecution, in support of its case, examined P.W. 1 MHC Mangal Singh; P.W. 2 Constable Gurjit Singh; P.W. 3 Constable Jasvir Singh; P.W. 4 Sanjiv Kapoor, Junior Engineer; P.W. 5 ASI Shambu Dutt; P.W. 6 HC Sohan Ram; P.W. 7 Dr. Adarshjot Kaur; P.W. 8 Smt. Nachhatro, complainant; P.W. 9 Ranbir Singh, and P.W. 10 SI Kuldip Singh. The statements of accused Under Section 313, Cr. P.C. were recorded, in which they denied the prosecution allegations against them and stated that they were innocent and had been falsely implicated in this case. Accused Hari Singh stated that he never demanded dowry and that the cause of the death was not dowry but was illicit relations of his wife Smt. Nimo with her brother-in-law Kuki, who resided at Chandigarh. He stated that his father along with Member Panchayat of their village had gone to the village of Smt. Nimo i.e. Khanpur and there Sucha Singh met them and he called a Panchayat of their community and told them about the illicit relations between Smt. Nimo and Kuki. It was alleged that Sucha Singh asked Smt. Nachattar Kaur, P.W. to advise her daughter to stay away from Kuki. It was alleged that about the illicit relations of Smt. Nimo with Kuki, the entire village i.e. Village Pir Machhaila, knew about it. Smt. Debo accused, in her statement, stated that she was not residing with her son but was residing with her husband separately. She also made a similar statement as made by accused Hari Singh about the illicit relations of Smt. Nimo and Kuki. In their defence, the accused examined D.W. 1 Ajit Singh and D.W. 2 Prem Singh.

4. Learned Additional Sessions Judge, after hearing both sides and after perusing record, acquitted accused Smt. Debo but convicted accused Hari Singh Under Section 304B, I.P.C and sentenced him to undergo imprisonment for life, vide judgment and order dated 16.11.2000. Aggrieved against this judgment and order of the learned Addl. Sessions Judge, Hari Singh, accused has filed the present appeal in this Court.

5. We have heard the learned Counsels for the parties and have gone through the record carefully.

6. Learned Counsel appearing for the accused appellant submitted before us that no case Under Section 304B, I.P.C. was made out, inasmuch as neither there was any demand for dowry nor there was any harassment on that account. It was submitted that even the allegation regarding demand of Rs. 20,000/- was false and in any case this demand was not towards dowry but towards construction of a house. It was further submitted that the deceased was having illicit relations with her brother-in-law and when they were caught in compromising position, she committed suicide, out of shame. It was submitted that the evidence of D.W. 1 Ajit Singh and D.W. 2 Prem Singh would fully prove about the illicit relations of Smt. Nirmala @ Nimo with her brother-in-law Kuki. It was, further submitted that the letter Ex. PJ, allegedly written by Smt. Nimo deceased and produced by P.W. 9 Ranbir Singh, was not proved on the record and would also not help the prosecution, as the said letter was written about two years prior to the present occurrence.

7. On the other hand, learned Counsel appearing on behalf of the State submitted that from the testimony of P.W. 8 Smt. Nachhatro and P.W. 9 Ranbir Singh, it was proved on the record that accused Hari Singh had been harassing Smt. Nimo deceased on account of dowry and they had also been demanding Rs. 20,000/- from her mother. It was further submitted that letter Ex. PJ was fully proved on the record, from the evidence led by the prosecution. It was further submitted that it was proved on record that Smt. Nirmla had died an unnatural death within seven years of her marriage on account of harassment given to her by accused Hari Singh, on account of dowry, soon before her death. It was submitted that the presumption, as given in Section 113B of the Indian Evidence Act, would clearly prove the offence Under Section 304B, I.P.C. against accused Hari Singh. It was further submitted that the story put forth by the accused about the illicit relations between the deceased and her brother-in-law Kuki is highly improbable, especially when the evidence of D.W. 1 Ajit Singh and D.W. 2 Prem Singh is not worthy of any reliance.

8. In the present case, as referred to above, accused appellant Hari Singh and his co-accused Smt. Debo (since acquitted) were charged Under Section 304B, I.P.C. and in the alternative Under Section 306, I.P.C. The learned Addl. Sessions Judge, while holding accused Hari Singh guilty had held that from the statements of P.W, 8 Smt. Nachhatro and P.W. 9 Ranbir Singh, it stands proved beyond reasonable doubt that accused Hari Singh had been demanding dowry and since the demand was not fulfilled, accused Hari Singh had harassed his wife Smt. Nirmala, due to which she had died an unnatural death, leaving behind two minor children. It was further held that from the letter Ex. PJ, it was proved that the deceased was being maltreated by the accused in the matrimonial home. The learned Trial Court accordingly found that the prosecution was successful in proving its case against accused Hari Singh beyond reasonable doubt and, accordingly, he was held guilty of the charge framed against him Under Section 304B, I.P.C. and was sentenced to undergo imprisonment for life.

9. As per the case of the prosecution, the marriage of Smt. Nirmala @ Nimo deceased with accused Hari Singh had taken place in the month of February 1996. Present occurrence had taken place on the morning of 24.5.1998. Smt. Nirmala deceased had committed suicide by jumping in front of a running train, on the morning of 24.5.1998.

10. The case of the prosecution is that Smt. Nirmala had committed suicide because she was being harassed by accused Hari Singh as she had failed to fulfil the demand for dowry and also demand for Rs. 20,000/- made by accused Hari Singh. On the other hand, case of the accused is that Smt. Nirmala deceased had committed suicide out of shame because she was having illicit relations with her brother-in-law Kuki. In order to prove its case, prosecution had examined P.W. 8 Smt. Nachhatro and P.W. 9 Ranbir Singh (brother), who had proved letter Ex. Pj. On the other hand, in order to prove its case, accused had examined D.W. 1 Ajit Singh and D.W. 2 Prem Singh.

11. Letter Ex. PJ was produced in the Court by P.W. 9 Ranbir Singh, when he appeared in the witness box. He stated that his sister had written the said letter to his elder brother, regarding demand of dowry. He stated that he recognised the handwriting of his sister in letter Ex. PJ. During cross-examination, he admitted that the letter Ex. PJ was not signed by Smt. Nirmala. He, however, stated that the name of his sister is mentioned in the column meant for the name of sender and that it was in the hand of his sister. He stated that his sister had studied upto 5th Class, but he had not brought certificate regarding her qualification, though it was lying at the house. He stated that he had only brought one letter written by his sister, even though she had also written other letters. He admitted that dowry was not specifically mentioned in the letter Ex. PJ and stated that the demand for Sandhara amounted to the demand of dowry. He stated that he was under Matric.

12. In our opinion, letter Ex. PJ would not prove that Smt. Nirmala @ Nimo was being harassed due to demand of dowry and its non-fulfilment. In the said letter, the reference is only to Sandhara and not dowry. In fact, P.W. 9 Randhir Singh had himself admitted that in the letter Ex. PJ, demand of dowry had not been specifically mentioned. However, only demand of Sandhara was mentioned. There is nothing to indicate that demand of Sandhara was equivalent to demand of dowry. Under Section 304B, I.P.C. it has been specified that dowry shall have the same meaning as it has been given in Section 2 of the Dowry Prohibition Act, 1961. As per Section 2 of. the Dowry Prohibition Act, 1961, dowry would mean any property or valuable security given or agreed to be given either directly or indirectly by one party to a marriage to the other party to the marriage or by the parent of either party to a marriage or by any other person to either party to the marriage or to any other person, at or before or any time after the marriage, in connection with the marriage of the said party. In the said definition of dowry, there is nothing to indicate that demand for Sandhara would also be covered by the definition of dowry. Sandhara is generally given on the occasions of festivals like Lohri, Karva Chauth, Holi, etc. from the girl's side to the boy's side. Furthermore, letter Ex. PJ is dated 27.5.1996 i.e. about 2 years prior to the present occurrence i.e. 24.5.1998. Under these circumstances, in our opinion, this letter Ex. PJ could not be made the basis for holding that soon before her death Smt. Nirmla, deceased was subjected to cruelty or harassment by her husband for or in connection with any demand of dowry. Under these circumstances, in our opinion, letter Ex. PJ in any case would not improve the case of the prosecution, with regard to the offence Under Section 304B, I.P.C.

13. Now we are left only with the oral testimony of P.W. 8 Smt. Nachhatro and P.W. 9 Ranbir Singh. P.W. 8 Smt. Nachhatro had deposed that one week after the marriage, accused Hari Singh had come along with Nirmala deceased to her house and at that time, Nirmala had told her that Hari Singh accused was harassing her for bringing less dowry and she had told her daughter Nirmala that she would complete the dowry slowly part by part. She stated that till her daughter died, accused were harassing her daughter for bringing less dowry. She deposed that accused Hari Singh had come along with Nirmala and had demanded Rs. 20,000/- and she had assured Hari Singh that she would pay the said amount. During cross-examination, she deposed that at the time when talks for marriage took place through mediator, there was no talk regarding dowry. She stated that when Hari Singh came to her house after marriage, she had not asked Hari Singh as to why he was asking for money. She stated that she had told the Panchayat of her vicinity regarding the demand of dowry and she was not advised to go to the police by the Panchayat. She stated that she had not talked to the Panchayat of the village of her in-laws about the demand of dowry. She stated that the accused had demanded Rs. 20,000/- for the construction of the house. P.W. 9 Ranbir Singh deposed that after 3 months of the marriage, accused had started demanding dowry. He stated that about 8 days prior to her death, accused Hari Singh and Smt. Nirmla deceased had come to their house and at that time Smt. Nirmla had told them that the accused were demanding Rs. 20,000/- for construction of separate house, as they were being separated from joint residence. He stated that he had promised accused Hari Singh that after a month he would give as much money as he could arrange. He stated that on the next day, they left for their house. During cross-examination, he stated that his mother had talked to him regarding the demand of Rs. 20,000/-.

14. In our opinion, from the evidence led by the prosecution, in the form of statements of P.W. 8 Smt. Nachhatro and P.W. 9 Ranbir Singh, it could not be said that accused Hari Singh had harassed or maltreated Smt. Nirmala deceased on account of any demand for dowry, soon before her death. Smt. Nirmala deceased was having two children at the time of occurrence. There is nothing to indicate that the complainant side had ever lodged any complaint, either with the police or with the Panchayat of the village of the accused, about the demand of dowry. The demand for Rs. 20,000/- for the construction of house could not be termed as demand for dowry. In our opinion, the prosecution has failed to prove that Smt. Nirmala deceased was being harassed by the accused on account of insufficient dowry or for demand of dowry. Thus, one of the ingredients of Section 304B, I.P.C., is missing in this case. Hence accused Hari Singh could not be convicted for the offence Under Section 304B, I.P.C.

15. However, the matter does not rest here. Accused Hari Singh was charged Under Section 304B, I.P.C. and in the alternative for the offence Under Section 306, I.P.C. Even if the offence Under Section 304B, I.P.C. is not made out, on the facts and circumstances of the present case, because dowry was not the cause of death, yet, in our opinion, offence Under Section 306, I.P.C. is clearly made out against accused Hari Singh in this case. As referred to above, the marriage had taken place in February 1996, whereas the present occurrence had taken place on 24.5.1998 i.e. just after 2 years and 3 months of the marriage. Smt. Nirmala deceased had committed suicide by jumping in front of a running train. If she was compelled to commit suicide by accused Hari Singh, he would be guilty of the offence Under Section 306, I.P.C. From the facts and circumstances of the present case, it is fully proved that Smt. Nirmala deceased was compelled by accused Hari Singh to commit suicide. It has come from the evidence of P.W. 8 Smt. Nachhatro and P.W. 9 Ranbir Singh that accused Hari Singh had demanded Rs. 20,000/- from Srnt. Nirmala deceased and her mother for the construction of house and since Smt. Nirmala and her family members failed to fulfil this demand, accused Hari Singh had harassed her to the extent that she committed suicide. Evidence of P.W, 8 and P.W. 9 namely Smt. Nachhatro and Ranbir Singh, respectively, in our opinion, is cogent and convincing and would be sufficient to hold that accused Hari Singh had compelled, Smt. Nirmala deceased to commit suicide, especially when the evidence of these witnesses finds corroboration from letter Ex. PJ written by Smt. Nirmala deceased, regarding harassment.

16. Section 113A of the Indian Evidence Act reads as under:

'113-A. Presumption as to abetment of suicide by a married woman-When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or such relative of her husband.

Explanation-For the purpose of this section 'cruelty' shall have the same meaning as in Section 498A of the Indian Penal Code (45 of I860).'

17. From a perusal of the above, it would be clear that when the question is whether commission of suicide by a woman had been abetted by her husband or by a relative of her husband and it is shown that she had committed suicide within a period of 7 years from the date of marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. It would also be clear from the above that for the purpose of this section, term 'cruelty' shall have the same meaning as given in Section 498A, I.P.C. As per Section 498A, I.P.C., cruelty would mean 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 of the woman or 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.

18. In the present case, as referred to above, it was fully proved on the record that Smt. Nirmala deceased was harassed by accused Hari Singh with a view to meet his demand for Rs. 20,000/- (for the construction of a separate house). It is also proved on the record that the conduct of accused Hari Singh was such that it was likely to drive Smt. Nirmala deceased to commit suicide. Once it is proved that accused Hari Singh had caused cruelty to Smt. Nirmala deceased, the provision of Section 113A of the Indian Evidence Act would apply to this case, especially when Smt. Nirmala deceased had committed suicide within 7 years of her marriage. ,

19. In Pawan Kumar v. State of Haryana, II (2001) DMC 7 (SC))=II (2001) SLT 646=AIR 2001 SC 1324, it was held by the Hon'ble Supreme Court that incorporation of Section 113A of the Evidence Act in the statute book, depicts legal presumption, though, however, the time period of within 7 years of marriage is the pre-requisite for such a presumption. In the reported case, the Hon'ble Supreme Court upheld the findings of the Courts below, holding the accused guilty for the offence Under Sections 306 and 498-A, I.P.C In Ramesh Kumar v. State of Chhattisgarh, II (2001) DMC 636 (SC)=VII (2001) SLT 356=JT 2001 (8) SC 599, it was observed by the Hon'ble Supreme Court that Section 113A of the Evidence Act was introduced by Criminal Law (Second) Amendment Act, 1983 w.e.f. 26.12.1983 to meet a social demand to resolve difficulty of proof where helpless married women were eliminated by being forced to commit suicide by the husband or in-laws and incriminating evidence was usually available within the four corners of the matrimonial home and hence was not available to any one outside the occupants of the house. After considering the provisions of Section 113A of the Evidence Act, referred to above, it was held by the Hon'ble Supreme Court as under:

'A bare reading of Section 113A shows that to attract applicability of Section 113A, it must be shown that, (i) the woman has committed suicide; (ii) such suicide has been committed within a period of seven years from the date of her marriage; (iii) the husband or his relatives, who are charged had subjected her to cruelty. On existence and availability of the above said circumstances, the Court may presume that such suicide had been abetted by her husband or by such relatives of her husband. The Parliament has chosen to sound a note of caution. Firstly, the presumption is not mandatory it is only permissive as the employment of expression 'may presume' suggests. Secondly, the existence and availability of the above said three circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be drawn the Court shall have to have regard to all the other circumstances of the case. A consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the Court to abstain from drawing the presumption. The expression The other circumstances of the case' used in Section 113A suggests the need to reach a cause and effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least the presumption is not an irrebutable one. In spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. The phrase 'may presume' used in Section 113A is defined in Section 4 of the Evidence Act, which says whenever it is provided by this Act that Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved or may call for proof of it'.'

20. In the present case, as referred to above, from the evidence of P.W. 8 Smt. Nachhatro and P.W. 9 Ranbir Singh it stands fully proved on the record that accused Hari Singh had been harassing Smt. Nirmala deceased on account of insufficient Sandhara, as mentioned in letter Ex. PJ and for having not met his demand for Rs. 20,000/- and had thereby compelled her to commit suicide when the said demand was not met. In our opinion, the ingredients of Section 306, I.P.C. are fully proved in this case against accused Hari Singh, inasmuch as it stands fully proved on the record that, (i) deceased Smt. Nirmala had committed suicide; (ii) she had committed suicide within seven years from the date of her marriage; and (iii) accused Hari Singh (husband) had subjected her to cruelty. Once these allegations are proved on the record, in our opinion, the Court is competent to presume that the suicide committed by Smt. Nirmala had been abetted by her husband Hari Singh, accused. This is especially so, keeping in view the other circumstances of the case, namely the allegations made by the accused against Smt. Nirmala deceased (regarding her character), which are found to be false, as per discussion in the subsequent paras.

21. In the present case, accused Hari Singh, in his statement Under Section 313, Cr. P.C, had taken the plea that the cause of death was illicit relations of his wife Smt. Nirmala @ Nimo with her brother-in-law Kuki. He stated that his father along with member Panchayat of his village had gone to Village Khanpur i.e. village of Smt. Nimo and there the Panchayat of their community was called and was informed about the illicit relations between Smt. Nimo and Kuki. He stated that there Smt. Nachhatro was told to advise her daughter Smt. Nimo to abstain from Kuki. He stated that the entire village i.e. Village Pir Machhaila knew about the illicit relations of Smt. Nimo with Kuki. In his defence evidence, accused examined D.W. 1 Ajit Singh and D.W. 2 Prem Singh, in support of his plea, about the illicit relations between Smt. Nimo deceased and her brother-in-law Kuki. D.W. 1 Ajit Singh had stated that he got up early in the morning and saw Kuki entering her room and at that time accused Hari Singh had left his village for Ambala, two days prior thereto. He stated that Smt. Nirmala deceased and her brother-in-law Kuki were having illicit relations. He stated that after seeing Kuki entering her room, he informed the father-in-law of Smt. Nimo,.regarding the presence of Kuki in the house. He stated that thereafter Ram Partap, father-in-law of Smt. Nimo went to the house of Prem Singh, Sarpanch while he (Ajit Singh) remained standing on the road near his house. He stated that after half an hour, Ram Partap along with Prem Singh, Sarpanch came there besides Jai Singh (present Sarpanch). He stated that thereafter, he (Ajit Singh) and Prem Singh, Sarpanch pushed the door of the room and they saw that Kuki and Smt. Nimo, deceased were lying together on a bed in a compromising position. He stated that thereafter Kuki came out of the room and they told him that it was not good for him and also advised him not to indulge in these things and thereafter Kuki left the house of Hari Singh, accused. He stated that thereafter he (Ajit Singh) went to his own house. During cross-examination on behalf of the prosecution, he stated that he did not know the date and month of the incident referred to above. He, however, stated that Kuki had entered the house of Hari Singh at about 3.30 a.m. He stated that his house (Ajit Singh's) was adjacent to the house of Hari Singh accused. He stated that when he and Prem Singh gave push to the door of the house of the accused, the door opened of its own. He stated that he identified Kuki in the street light. He, however, stated that there was no light in the room of the house of Hari Singh, accused. He stated that he had not identified Kuki or Smt. Nimo deceased inside the house. He stated that no written complaint was made to any person or authority, either by him or by the accused. He denied the suggestion that he had deposed falsely.

22. D.W. 2 Prem Singh stated he was Sarpanch of Village Pir Machhaila from 1993 to 1998. He stated that about 2 1/2 years back, Ram Partap (father of accused Hari Singh) had come to him and told him that Kuki was in the house of Hari Singh, accused. He stated that Hari Singh had left for Ambala about two days prior thereto. He stated that Kuki was brother-in-law of Nirmala deceased. He stated that father of Hari Singh, accused had told him that Kuki had illicit relations with Nirmala @ Nimo. He stated that he along with Ram Partap had come to the house of Hari Singh, accused and at that time Jai Singh, Jarnail Singh and Ajit Singh were present there. He stated that on inquiry, Ram Partap told him that Kuki was inside the house of Hari Singh. He further stated that Ram Partap had not opened the door of the house but Ajit Singh had pushed the door of the room and door was opened and at that time Nimo and Kuki were lying on a bed in a compromising position. He stated that he had advised him that it was not good on his part and even earlier to this incident he had advised him not to indulge in these things. He stated that they also advised him to leave the village and he left. He stated that they also advised Smt. Nimo deceased not to indulge in such habits and ruin family life. He stated that thereafter they left for their house. He stated that subsequently, he came to know that Smt. Nimo had committed suicide. He stated that she had committed suicide because the relationship between Smt. Nimo and Kuki had been exposed and she could not tolerate it and hence committed suicide. He stated that being the Sarpanch he had visited the place of occurrence and had seen some police officials present there. Later on, the Thanedar had also reached there. He, however, stated that he had not disclosed anything to the Thanedar qua this occurrence. During cross-examination on behalf of the prosecution, he stated that he knew Kuki about 7-8 months prior to this occurrence though he did not lodge any written complaint nor had reported the matter to the police. He denied the suggestion that he had deposed falsely. He, however, stated that Hari Singh had two children out of wedlock with Smt. Nimo deceased.

23. From a perusal of the stand taken by accused Hari Singh, in his statement Under Section 313, Cr. P.C., and statements of D.W. 1 Ajit Singh and D.W. 2 Prem Singh, produced by the accused in his defence, it would be clear that even though accused Hari Singh in his statement had not said anything about Smt. Nirmala deceased having been found in a compromising position with her brother-in-law Kuki, just prior to the occurrence, D.W. 1 Ajit Singh and D.W. 2 Prem Singh had deposed that they had seen Smt. Nirmala and her brother-in-law Kuki in comprising position just prior to the incident. In our opinion, the defence story put up by the accused and his witnesses is highly improbable. D.W. 2 Prem Singh, Sarpanch stated that after the suicide he had found some police officials present there and even the Thanedar had reached there, yet he had not disclosed anything to the Thanedar regarding the occurrence i.e. regarding Nirmala deceased having been found in compromising position with her brother-in-law Kuki, prior to the suicide, or that she had committed suicide out of shame. If any such thing had happened prior to the present occurrence, to the knowledge of Ram Partap, father of accused Hari Singh, besides D.W. 1 Ajit Singh and D.W. 2 Prem Singh, this would have been told to the police when Smt. Nirmala had committed suicide and accused Hari Singh and his co-accused were arrested in this case, at the instance of Smt. Nachhatro (mother of the deceased). However, admittedly, the police was not informed in this regard. Furthermore, as referred to above, Hari Singh accused, in his statement Under Section 313, Cr. P.C., had only stated that Smt. Nirmala deceased and her brother-in-law Kuki were having illicit relations and that the Panchayat of his village had gone to the village of Smt. Nirmala and Panchayat of the community was convened and they were told about it. No witness has been examined in support of convening of any such Panchayat. Furthermore, Hari Singh, accused in his statement Under Section 313, Cr. P.C, is absolutely silent about the incident of Smt. Nirmala and Kuki just prior to the present occurrence. Furthermore, the allegation of D.W. 1 Ajit Singh that Smt. Nirmala deceased and her brother-in-law Kuki were having illicit relations is not even admissible, since it is based on hearsay evidence. D.W. 1 Ajit Singh had also stated that since there was no light inside the room of accused Hari Singh, he had not identified Kuki and Smt. Nirmala deceased inside the house. If that be so, there was no question of D.W. 1 Ajit Singh or D.W. 2 Prem Singh having witnessed Smt. Nirmala deceased and her brother-in-law Kuki in compromising position. D.W. 2 Prem Singh had staled that the father of the accused Hari Singh had told him that Kuki had illicit relations with Smt. Nirmala. This evidence of D.W. 2 Prem Singh regarding illicit relations, is also hearsay. Furthermore, Ram Partap (father of accused Hari Singh) had not been examined.

24. In view of the above, in our opinion, the defence story put forth by the accused regarding the cause of suicide, cannot be accepted.

25. Once it is found that Smt. Nirmala deceased had committed suicide within seven years of her marriage and that accused Hari Singh (husband) had subjected her to cruelty, in our opinion, it could certainly be said that accused Hari Singh had abetted the suicide committed by Smt. Nirmala, deceased. This is especially so, when the cause for suicide alleged by the accused in his statement Under Section 313, Cr. P.C. has been found to be false. In our opinion, the offence Under Section 306, I.P.C. is fully proved against accused Hari Singh, on the facts and circumstances of the present case and he is liable to be convicted thereunder.

26. In view of our detailed discussion above, the present appeal is partly accepted. The conviction and sentence awarded to accused Hari Singh Under Section 304B, I.P.C. is set aside and instead accused Hari Singh is convicted for the offence Under Section 306, I.P.C. Furthermore, taking into consideration the facts and circumstances of the present case, accused Hari Singh is sentenced to undergo R1 for 5 years, for the offence Under Section 306, I.P.C.