IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Crl. A. No. 267-DBA of 2008
DATE OF DECISION : 14.01.2009
State of Haryana
.... APPELLANT
Versus
Partap
..... RESPONDENT
CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MRS. JUSTICE DAYA CHAUDHARY
Present: Mr. Partap Singh, Senior DAG, Haryana,
for the appellant.
Ms. Amita Arora, Advocate, Amicus curiae,
for the accused-respondent.
***
SATISH KUMAR MITTAL , J.
The State of Haryana has filed this appeal against the judgment
of acquittal of the sole accused Partap, passed by the Court of Additional
Sessions Judge (I), Faridabad, on 22.5.2007 in Sessions Case No. 57 of
2006, arising from FIR No. 194 dated 27.8.2006, registered at Police Station
Sarai Khawaja, Faridabad, under Section 304-B of the IPC.
In brief, the aforesaid FIR (Ex.PA/1) was registered on the
complaint made by Jagdish Parsad, uncle of Archana (deceased), on
27.8.2006, on the allegation that marriage of his niece Archana was
solemnized in the year 2003 with Partap (accused-respondent) resident of
Village Mayore, PS Vilgram, District Hardoi (U.P.). In the marriage, the
Crl. A. No. 267-DBA of 2008 -2-
dowry was given by his brother Bachey Lal (father of Archana), according
to his status. However, accused Partap insisted again and again for bringing
more dowry. He used to give beatings to Archana. Due to that reason,
Archana used to remain upset. After some time, the accused brought
Archana from his village Mayore to Faridabad, where also he demanded
dowry and gave beatings to her. On 26.8.2006, at about 10.00 P.M., he got
the information that Archana has died. On receiving that information, he
came to the house of Partap, where he found that Archana was lying on the
floor with bluish marks on her neck. Near the dead body, broken bangles
were also lying. It appeared to him that Archana has died due to
strangulation and he doubted that accused Partap has committed this crime.
The aforesaid complaint was made to the police at 2.50 A.M. (night) on
27.8.2006, on the basis of which the aforesaid FIR was registered at 3.20
A.M. on the same day. Subsequently, the inquest report (Ex.PC) was
prepared and the dead body was taken to the Hospital for post mortem. The
post mortem of the deceased was conducted by a Board of three Doctors.
They found ligature marks high in the neck going backwards and upwards
missing behind right pinna. On left side, it was backwards and upwards and
disappearing in hair line. There was no subcutaneous haemorrhage or
fracture of hyoid bone. No external mark of injury was seen. In the opinion
of the Board of Doctors, the deceased died due to asphyxia as a result of
hanging, which was antemortem in nature and sufficient to cause death in
the ordinary course of nature.
Crl. A. No. 267-DBA of 2008 -3-
After completion of investigation, the police filed the challan.
The charge under Section 304-B IPC was framed against the accused to
which he pleaded not guilty and claimed trial.
In support of its case, the prosecution examined 11 witnesses,
including PW.9 Jagdish (uncle of the deceased), PW.10 Bachey Lal (father
of the deceased) and PW.11 SI Sudeep Singh (the Investigating Officer) and
also led other documentary evidence. The accused in his statement under
Section 313 Cr.P.C. denied the prosecution version and stated that he was
falsely implicated in the case, though he was innocent. He did not lead any
evidence in his defence.
The trial court, after considering and appreciating the evidence
led by the prosecution, acquitted the accused, while coming to the
conclusion that the prosecution has failed to prove that Partap being
husband of deceased Archana harassed her on account of demand of dowry
and on that account, she committed suicide on 26.8.2006, within 7 years of
her marriage, and that soon before her death, she was subjected to any
cruelty.
Shri Partap Singh, learned Senior Deputy Advocate General,
Haryana, appearing on behalf of the appellant-State, submitted that the trial
court has wrongly acquitted the accused while recording wrong findings,
which are totally contrary to the evidence led by the prosecution. In this
regard, he submitted that the trial court has recorded a finding that death of
the wife occurred after 7 years of the marriage, therefore, the offence under
Crl. A. No. 267-DBA of 2008 -4-
Section 304-B IPC has not been made out. According to the learned
counsel, the said finding is contrary to the statements of PW.9 Jagdish and
PW.10 Bachey Lal, father of the deceased, who have categorically stated
that the marriage of deceased Archana was solemnized with the accused in
the year 2003. Learned counsel submitted that in cross-examination of these
two prosecution witnesses, even it was not suggested that marriage of the
deceased had taken place prior to the year 2003. While totally ignoring the
statements of these two witnesses, the trial court, while relying upon a
casual observation by PW.11, SI Sudeep Singh, the Investigating Officer,
where he stated that marriage of the deceased with the accused was
solemnized in U.P. 7-9 years ago, again said 5-6 years ago, has recorded a
perverse finding that marriage of the deceased was solemnized with the
accused more than 7 years prior to the alleged occurrence. Learned counsel
further submitted that a wrong finding has also been recorded by the trial
court that both Archana and the accused were residing separately. He has
recorded the said finding while observing that PW.9 Jagdish has stated so,
whereas no such statement was made by this witness, either in his
examination-in-chief or in his cross-examination. Thirdly, learned counsel
for the appellant-State submitted that while ignoring the statements of PW.9
Jagdish and PW.10 Bachey Lal, a wrong finding has also been recorded by
the trial court to the effect that the prosecution has failed to prove that soon
before the death of Archana, she was subjected to any harassment by the
accused in connection with any demand of dowry. In the alternative, learned
Crl. A. No. 267-DBA of 2008 -5-
counsel for the appellant-State submitted that if there is lack of sufficient
evidence with regard to harassment by the accused to the deceased soon
before her death in connection with demand of dowry, there is sufficient and
positive evidence available on the record (i.e. statements of PW.9 Jagdish
and PW.10 Bachey Lal), which clearly establish that within 7 years of her
marriage, Archana was subjected to cruelty by her husband-accused.
Therefore, under Section 113-A of the Indian Evidence Act, it is presumed
that the suicide committed by the deceased had been abetted by the accused.
Thus, the accused is liable to be convicted under Section 306 IPC. Learned
counsel submitted that the aforesaid two witnesses have categorically stated
that the deceased was being harassed by the accused after consuming liquor.
After consuming liquor, he used to give beatings to her and also demand
money from her for consuming liquor. These allegations clearly fall under
the definition of `cruelty’ as defined in Explanation to Section 498-A IPC.
Learned counsel further submitted that though the charge under Section 306
IPC has not been framed against the accused, but while recording the
statement of accused under Section 313 Cr.P.C., the aforesaid allegations
and the evidence, which duly constitute the offence under Section 306 IPC,
were duly put to the accused. Therefore, sufficient opportunity of defence
was granted to the accused with regard to the offence under Section 306
IPC. Even otherwise, the offence under Section 306 IPC is lesser to the
offence under Section 304-B IPC, for which the charge has been framed
against the accused. Therefore, without remanding the matter for grant of
Crl. A. No. 267-DBA of 2008 -6-
opportunity of defence to the accused, he can be convicted for the offence
under Section 306 IPC.
On the other hand, Smt. Amita Arora, Advocate, amicus curiae,
appearing on behalf of the respondent-accused, submitted that keeping in
view the evidence available on the record, the trial court has rightly
acquitted the accused for the offence under Section 304-B IPC. She
submitted that one of the material ingredients of the offence under Section
304-B IPC i.e. soon before her death she was subjected to cruelty or
harassment by her husband or his relative in connection with demand of
dowry has not been established at all. PW.9 Jagdish and PW.10 Bachey Lal
have not at all stated that the deceased was subjected to harassment by the
accused soon before her death in connection with the demand of dowry. She
submitted that if the finding of the trial court that the marriage of the
deceased was solemnized with the accused 7 years prior to the alleged
occurrence is taken as contrary to the evidence, even then the offence under
Section 304-B IPC is not made out against the accused. Learned counsel
further submitted that as far as offence under Section 306 IPC is concerned,
there is no reliable and trust worthy evidence to prove that the deceased was
subjected to cruelty, which abetted her to commit suicide. The allegation
levelled by PW.9 and PW.10 that the accused used to consume liquor and
give beatings to the deceased and demand money from her for consuming
liquor, as stated by them while appearing in the Court, is totally an
improvement, as these witnesses did not state these facts before the police
Crl. A. No. 267-DBA of 2008 -7-
under Section 161 Cr.P.C. Learned counsel, while further referring to the
statements of these two witnesses and pointing out the contradictions in
their statements before the police and in the court, submitted that they are
not reliable witnesses at all and on the basis of their statements regarding
the aforesaid allegations, no presumption as to abatement of suicide by a
married woman within 7 years of the marriage under Section 113-A of the
Indian Evidence Act can be raised. Therefore, the accused is also not liable
to be convicted for the offence under Section 306 IPC.
We have heard the arguments of learned counsel for both the
parties and have perused the impugned judgment as well as the trial court
record.
From the medical evidence, available on the record, i.e. Post
Mortem Report (Ex.PB) and statement of PW.2 Dr. A.K. Lohan, it has been
clearly established that the deceased has died an un-natural death by
committing suicide. Further, it is the case of the prosecution that marriage of
the deceased was solemnized with the accused in the year 2003 i.e. within 7
years of her death. However, a contrary finding has been recorded by the
trial court to the effect that marriage of the deceased was solemnized with
the accused more than 7 years prior to the alleged occurrence. In our
opinion, this finding is totally perverse and against the evidence on the
record. From the very beginning, PWs Jagdish and Bachey Lal, uncle and
father of the deceased, have categorically stated that marriage of Archana
was solemnized with the accused in the year 2003. In the Court, while
Crl. A. No. 267-DBA of 2008 -8-
appearing as PW.9 and PW.10, again they categorically stated the same fact.
Even no suggestion was put to them by the defence counsel that marriage of
the accused with Archana was not solemnized within 7 years of the alleged
occurrence. In our opinion, this fact was not controverted at all by the
defence. The trial court, while relying upon an observation made by the
Investigating Officer in his statement as PW.11 before the Court that
marriage of the deceased with the accused was solemnized in U.P. 7-9 years
ago, again said 5-6 years ago, has wrongly recorded a finding that marriage
was solemnized more than 7 years prior to the alleged occurrence. In our
opinion, this finding cannot be sustained. The prosecution has established
that marriage of the deceased was solemnized with the accused in the year
2003 i.e. within 7 years of the alleged occurrence. The trial court has also
recorded a perverse finding to the effect that both the accused as well as the
deceased were residing separately. It has been observed that in his
statement, PW.9 Jagdish has so stated. A perusal of the said statement
reveals that the aforesaid witness has not stated so at all. Learned counsel
for the accused-respondent could not controvert this factual position. In
view of this, the said finding of the trial court is also not sustainable.
Further, the finding recorded by the trial court with regard to
the alleged harassment caused by the husband to the deceased wife in
connection with demand of dowry soon before her death, in our opinion, is
in confirmity with the evidence available on the record. A perusal of the
statements of PW.9 Jagdish and PW.10 Bachey Lal shows that these
Crl. A. No. 267-DBA of 2008 -9-
witnesses have stated nothing that soon before the alleged occurrence, the
accused harassed the deceased on account of demand of dowry. Both these
witnesses have stated that the deceased was harassed by the accused after
consuming liquor. He used to beat her and demand money from her for
consuming liquor. Therefore, in our opinion, the prosecution has failed to
establish that the deceased was subjected to cruelty soon before her death in
connection with demand of dowry. It is well settled that in case, the
prosecution has failed to prove this fact, then no offence under Section 304-
B IPC can be said to have been made out. In this regard, reference can be
made to the judgment of the Supreme Court in Pawan Kumar versus State
of Haryana, 1998 (3) SCC 309. Thus, the acquittal of the accused by the
trial court for the offence under Section 304-B IPC is to be upheld.
Now, the question which arises for consideration is as to
whether in the facts and circumstances of this case, the accused is liable to
be convicted for the offence under Section 306 IPC. Undisputedly,no charge
under Section 306 IPC was framed in this case. However, it is well settled
that the accused can still be convicted for the offence actually committed by
him, if the said offence is proved on the basis of the evidence available on
record. The only precaution to be taken is that the accused has not been
misled by non-framing of the charge for that particular offence. But, if the
incriminating evidence which led to the commission of the said offence has
been put to the accused at the time of recording of his statement under
Section 313 Cr.P.C., then it is to be taken that the accused was not mis-led
Crl. A. No. 267-DBA of 2008 -10-
by non-framing of the said charge. In this regard, reference can be made to a
decision of the Supreme Court in the case of K. Prema S. Rao v. Yadla
Srinivasa Rao, (2003) 1 SCC 217, wherein while acquitting the accused
under Section 304-B IPC, he was convicted for the lesser offence under
Section 498-A and 306 IPC, at the appellate stage.
Now, it is to be considered as to whether there is sufficient
evidence available on the record, on the basis of which the accused can be
convicted under Section 306 IPC. PW.9 Jagdish and PW.10 Bachey Lal, in
their statements before the Court, have categorically stated that after the
marriage, the accused harassed the deceased after consuming liquor and by
giving beating to her. He also used to demand money from her for
consuming liquor. Learned counsel for the accused-respondent submitted
that this portion of the statement of these witnesses cannot be relied upon,
as these two witnesses did not state these facts before the police while
making complaint and recording the statement under Section 161 Cr.P.C.
Learned counsel submitted that this version of the prosecution is after-
thought and cannot be relied upon. It is true that these facts do not find
mention in the complaint made by PW.9 Jagdish as well as the statement
(Ex.DA) made by PW.10 Bachey Lal before the police, but these witnesses,
while appearing before the Court, have stated that the police had not
correctly recorded their statements. Actually, the deceased was being
harassed by the accused. In our opinion, the statements of these two
witnesses on this point cannot be discarded, because they are consistent in
Crl. A. No. 267-DBA of 2008 -11-
their examination-in-chief as well as cross-examination that the deceased
was being harassed and given beating by the accused by consuming liquor
and he also used to demand money from her for consuming liquor. In our
opinion, the aforesaid statements are sufficient to raise presumption under
Section 113-A of the Indian Evidence Act, which provides that when the
question is whether the commission of suicide by a woman had been abetted
by 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
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. It has been established on record that the deceased had committed
suicide within a period of seven years from the date of her marriage and she
was subjected to cruelty by her husband during the said period. The
Explanation to Section further provided that for the purpose of this section,
“cruelty” shall have the same meaning as in section 498A of the Indian
Penal Code. Explanation to Section 498-A of the Code provides as under :
Explanation :- For the purpose of this section, “cruelty” means-
(a) any wilful conduct which is of such a nature as is
likely to drive the woman to commit suicide or to cause grave
injury or danger to life, limb or health (whether mental or
physical) of the woman; or
(b) 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
Crl. A. No. 267-DBA of 2008 -12-meet such demand.
In our opinion, if the husband used to harass the wife after consuming liquor
and give beating to her and demand money from her for consuming liquor,
the said conduct falls under the definition of `cruelty’ as defined above. In
this regard, reference can be made to the decision of the Andhra Pradesh
High Court in P. Bikshapathi and others v. State of Andhra Pradesh, 1989
Criminal Law Journal 1186. In this case, there is sufficient evidence
available on the record, which establish that within the seven years of her
marriage, the deceased was subjected to cruelty by the accused. The
probability of existence of nexus between the cruelty and the suicide can not
be ruled out. In our opinion, the alleged cruelty was such of the nature as
was likely to drive the woman to commit suicide. Therefore, keeping in
view all the facts and circumstances of the case, we are of the opinion that
the presumption can safely be raised against the accused under Section 113-
A of the Indian Evidence Act. In the instant case, neither there is any
evidence led by the accused nor any material available on the record, which
rebut the said presumption. In his statement under Section 313 Cr.P.C., the
accused has only stated that the allegations of consuming liquor, giving
beating to his wife and demanding money from her for liquor, were
incorrect. Except that denial, there is no evidence available on the record,
which rebut the aforesaid presumption. In our opinion, once the cruelty is
proved, there is a presumption of continuity, unless contrary is proved.
In view of the above, the accused-respondent is convicted
Crl. A. No. 267-DBA of 2008 -13-
under Section 306 IPC.
After taking into consideration the various factors, i.e. age of
the deceased, period of her marriage with the accused-respondent, the fact
that she committed suicide in the matrimonial house, we sentence the
accused-respondent Partap to undergo rigorous imprisonment for a period of
5 years with a fine of Rs. 5,000/-. In default of payment of fine, he shall
undergo rigorous imprisonment for a further period of six months.
The appeal is, accordingly, allowed. The accused-respondent
Partap, who is on bail, shall surrender to custody to serve the remainder of
his sentence.
( SATISH KUMAR MITTAL )
JUDGE
January 14, 2009 ( DAYA CHAUDHARY)
ndj JUDGE