JUDGMENT
S.K. Kulshrestha, J.
1. The appellants have preferred this appeal against the judgment dated 18.8.1992 of the learned Sessions Judge, Damoh, passed in Sessions Trial No. 51/90, by which the appellants have been convicted for offences under Sections 304B and 306 of the Indian Penal Code and each of them has been sentenced to 7 years’ rigorous imprisonment under each count sentences to run concurrently and subject to the set off under Section 428 of the Code of Criminal Procedure.
2. Halkibahu was married to the son of the appellant No. 1 Babu Singh and appellant No. 3 Kapuribai and brother-in-law of the appellant No. 2 Draupadibai, namely, Bahadur, some three years prior to the date of commission of suicide by her on 12.1.1990. \
3. As per the case of the prosecution, the parents of the deceased, namely, Dhopatsingh (PW 5) and Girjarani (PW 6), had given cash amount of Rs. 12,000/-, a watch and a radio in dowry but had not given a “Gold Mohar” and the accused persons were, therefore, harassing her and thus subjecting her to cruelty in order to pressurise her to persuade her parents to give the same. The appellants and the deceased were not financially in a position to afford a “Gold Mohar”. As per the prosecution case, on 12.1.1990, on the festival of Sankranti Dhopatsingh (PW 5) had gone to the house of the accused persons to bring his daughter and he was informed by his daughter, the deceased Halkibahu, that the accused persons were harassing her because he had not given them the “Gold Mohar”. On hearing the said complaint made by the deceased to her father, the appellants had slapped her and taken her inside the house. The prosecution alleges, on account of the said cruel conduct in pursuance of the demand of dowry, Halkibahu committed suicide by hanging. Inquest on the dead body was held on 3.1.1990 by the Investigating Officer V.C. Verma (PW 7) and report Ex.P 3 was prepared, to which Asharam (PW 3), Mukundsingh (PW 4) and Dhopatsingh (PW 5) were witnesses. The body was forwarded alongwith requisition Ex. P1 to the Govern- ment Hospital for post-mortem examination and the rope was seized from the house of the appellants under seizure memo Ex. P4. Spot map Ex. P5 was prepared and the case was registered against the appellants on 16.1.1990 under Section 306 of the Indian Penal Code vide Ex. P6. Autopsy was preformed by Dr. S.K. Jain (PW 1) on 14.1.1990 and a ligature mark was found on the neck of the deceased, on the basis whereof the docor opined that she had committed suicide.
4. After investigation, the accused persons were prosecuted for offences under Sections 304B and 306 of the Indian Penal Code.
5. The accused persons abjured their guilt and claimed that they were innocent and had been falsely implicated on account of enmity but did not lead any evidence in defence. After trial, the learned Sessions Judge convicted and sentenced the appellants, as stated above.
6. Counsel for the parties to the appeal were heard. Learned Counsel for the appellants has not disputed that Halkibahu has died and has further not disputed that the death was on account of her having committed suicide. Even otherwise, from the evidence of the doctor and the other prosecution witnesses, it is amply borne out from the record that Halkibahu had committed suicide. It has also not been disputed that Halkibahu had been married to Bahadur, son of the appellants Nos. 1 and 3 (Babu Singh and Kapuribai respectively) and brother-in-law of the appellant No. 2 Draupadibai about three years prior to the date of the incident. What has been seriously stressed by the learned Counsel for the appellants is the fact that the story of demand of dowry was concocted with a view to harass the appellants and the evidence of the parents of Halkibahu, therefore, could not be relied upon to find conviction of the appellants.
7. Prosecution has examined seven witnesses. Dr. S.K. Jain (PW 1) has deposed to the autopsy being performed by him and has opined that the death of Halkibahu was due to asphyxia on account of hanging. Mahendra Kumar (PW 2) had taken the dead body for post-mortem examination. Asharam (PW 3) is Panch to the inquest Ex. P3 and to the seizure of rope vide Ex. P4 and spot map Ex. P5. He has also ventured to state that he was Pandit and that everything settled at the time of marriage had been fulfilled by the bride side at the time of Betrothal itself. Mukund Singh (PW 4) is also a witness to the inquest and he has stated that the father of the deceased was present at that time and had not made any complaint about any ill treatment by the accused persons to his daughter. Dhopatsingh (PW5) is the father of the deceased while Girjarani (PW 6) is the mother of the deceased. V. C. Verma (PW 7) had conducted the investigation and has deposed to the steps taken by him during investigation. The prosecution case, thus, mainly hinges on the evidence of the parents of the deceased, namely, Dhopatsingh (PW 5) and Girjarani (PW 6).
8. Dhopatsingh (PW 5) has deposed that the eceased was his daughter and that at the time of her wedding, Rs. 12,000/- in cash, (sic) and a radio had been given by him but he could not give a “Gold Mohar” as (sic) been the parties. He has further deposed that on account of his having not give, (sic) old Mohar” the accused were harassing his daughter. The statement of Dhopatsh (sic) PW (5) further shows that he had gone to bring his daughter, where he was informed by her that her in-laws were harassing her, as he had not fulfilled the demand of a “Gold Mohar”. According to this witness, at this juncture, her parents-in-law and sister-in-law (respectively accused- appellants 1,3 and 2) heard her complaining and her mother-in-law gave her a few slaps and her sister-in-law (accused-appellant No. 2) took her dragging inside. He has further deposed that the accused then told him that she will be sent with him only after he gave them a “Gold Mohar” and, therefore, the witness had to return back home. Later he learnt that his daughter was ill and rushed to the place where he found that his daughter had died. In cross-examination, he has admitted that he was present at the time of the inquest and had signed the inquest memo Ex.P 3.
9. Girjarani (PW 6) has also repeated the story and has stated that her daughter was frequently coming to live with them because she was a young girl and preferred to live in the house of the parents. She has made a general statement about the ill-treatment administered to her (her daughther) by her in-laws on account of the demand of a “Gold Mohar”. She corroborates the story of her husband that when he had gone to bring his daughter back, her daughter had complained to him and her father-in-law had given her a few slaps and the other accused persons had then come and taken her inside, beating and dragging her.
10. With regard to the incident, when Dhopatsingh (PW5) had gone to bring back his daughter, the evidence of Girjarani (PW 6) is apparently based on the knowledge she may have derived from her husband. Thus, the evidence of Dhopatsingh (PW 5) acquires greater significance and deserves to be considered first.
11. Dhopatsingh (PW 5) has referred to the demand of a gold coin (Gold Mohar), which, according to him, remained unsatisfied on account of his economic condition. However, he has made merely a general allegation that the in-laws of her daughter were troubling his daughter, as informed by her during her visits to his house. It has also to be borne in mind that Dhopatsingh (PW 5) was also a witness to the inquest memo Ex.P 3. The said memo recites that on the basis of the information available till then, the deceased had died on account of hanging and for finding out the cause of her death, post- mortem examination of the body was necessary. In this connection, this witness has admitted his presence at the time of the inquest and has stated that the police did not enquire anything from him at that time and the police had come to his village only after three or four days. This witness further admits that he did not himself volunteer to tell the police that the accused were demanding dowry, but in the same breath, he retreats from the said position and states that he had informed the police that his daughter had been killed but the police “Munshi” had abused him and said that he was no one to question the police. The Trial Court has also permitted the defence Counsel to confront him with the statement Ex.Dl to the police about commission in regard to not having given a “Gold Mohar” as stated but it is regretted that such a course was permitted as reference to the demand of “Gold Mohar” finds place in Ex.D 1. Girjarani (PW 6), the mother of the deceased, corroborates the statement of Dhopatsingh (PW 5) about the demand of Gold Mohar by the appellant No. 2. Thus, though it is true that Dhopatsingh (PW 5) and Girjarani (PW 6), both, referred to the demand of “Gold Mohar” by the in- laws, the evidence is not certain as to which member of the family related to the husband of the deceased had actually made the said demand and harassed the deceased in this behalf. Section 304B of the Indian Penal Code relating to the dowry death reads as under:
“304-B. Dowry death. (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.
Explanation.-For the purposes of this sub-section, “dowry” shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to impris- onment for life.”
12. Section 113B of the Indian Evidence Act attaches presumption of such death being dowry death when it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry and reads as under :
113-B. Presumption as to dowry death.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 had been subjected by such person to cruelty or harassment for, or in connection with, any damand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation.-For the purpose of this section, “dowry death” shall have the same meaning as in Section 304B of Indian Penal Code (45 of 1860).”
13. The question that falls for consideration is whether soon before the death of Halkibahu, whether she was subjected to any cruelty or harassment with regard to the demand of dowry by any of the accused persons. What has been stated by the witnesses is that it was the deceased who had made complaint to her father with regard to the demand of dowry and that she was ill-treated by the appellants. The statement of Dhopatsingh (PW 5) indicates that the appellant No. 3 Kapuribai, the mother-in-law of the deceased, had slapped her and the appellant No. 2 Droupadibai had taken her inside, while the statement of Girjarani (PW 6) shows that it was the appellant No. 1 Babu Singh, who had given her slaps and the appellant No. 3 Kapuribai had caught hold of her and taken her inside. It is clear from the narration of events by these two witnesses that not much significance had been attached by the deceased to the demand of Gold Mohar by her in-laws and even the parents of the deceased had been quite indifferent which shows that no serious notice was taken nor significance attached. The demand of dowry by any of the appellants is also contra-indicated from the fact that Dhopatsingh (PW 5) did not immediately inform the police though present at the time of inquest that his daughter had been subjected to harassment and cruelty and there was a demand of dowry made by the appellants. The evidence of V.C. Verma (PW 7), the S.D.O. Police, cannot be believed when he says that the parents of the deceased, Dhopatsingh (PW 5) and Girjarani (PW 6) had told him that they would give their statements later on. It is clear from the evidence of the Investigating Officer V.C. Verma (PW 7) that both, Dho- patsingh (PW 5) and Girjarani (PW 6) were present at the time of inquest but none disclosed anything about any past incident. It is, therefore, difficult to conclude from the evidence of the prosecution that there had been demand of dowry from any of the appellants and that the deceased had been subjected to cruelty or harassment onaccount of any such demand and the charge under Section 304B, IPC, therefore, fails. Accordingly, the appellants are entitled to be acquitted of the said charge.
14. Second question that survives for consideration is with regard to conviction of the appellants for offence under Section 306, IPC. From the evidence as referred to above, it is clear that when Dhopatsingh (PW 5) had gone to the house of the accused to bring his daughter to his house, the incident had taken place, in which the deceased had been slapped and ill-treated and taken inside the house and there was refusal on the part of the appellants to send her with her father. The reason ascribed by Dhopatsingh (PW 5) is that because his daughter had complained to him, the appellants had so treated her. It does not stand to reason that the deceased, in order to complain about the demand of dowry, namely, the Gold Mohar, would not take care to ensure that she was not heard by other inmates of the house. The conduct of Dhopatsingh (PW 5) also indicates that if it were true that she had been subjected to such mal-treatment, he would not have kept quite at the time of the inquest only to wait for the police to come to his village and record his statement. There is no other evidence to indicate that at some point of time anterior to the recording of the statement by the police, any complaint was made by Dhopatsingh (PW 5) to anyone or any steps were taken to ensure safety of his daughter. It has been admitted by Girjarani (PW 6), the mother of the deceased, that she (the deceased) was frequently visiting them and staying with them for sufficient long periods as she was a young girl. All this indicates that the story about the demand of dowry and harassment as also the incident of beating has been subsequently introduced as an after-thought, otherwise there was no reason why the parents of the deceased would not unfold the same at the very first opportunity, especially when V.C. Verma, S.D.O. (Police) (PW 7), who conducted investigation, has admitted that both were present. It is, therefore, difficult to hold on the basis of such shaky evidence that any of the appellants had abetted the commission of suicide by the deceased, as there is nothing to indicate that there was any immediate cause which had driven the deceased to take that course. In any case, it is not found that there was any demand of dowry of harassment and it was on account of such a demand that the deceased had committed suicide. The conviction of the appellants for offence under Section 306, IPC can also not be sustained.
15. In the result, this appeal is allowed. The conviction of the appellants and the sentence passed against them is set aside and they are acquitted of the charges against them. The appellant Nos. 2 and 3 are on bail. Their bail bonds are discharged. The appellant No. 1 be released from custody forthwith, if not required in connection with any other matter.