JUDGMENT
J.S. Sekhon, J.
1. Suresh Kumar along with his father Chunni Lal mother Kishno (appellants) and brother Janak Raj (since acquitted) were tried on charge for offences punishable under Section 304B, 498A and 306 of the Indian Penal Code. Aforesaid Janak Raj was acquitted of the said charges. The remaining three accused-appellants were found guilty of the said charges by the learned Addl. Sessions Judge, Gurdaspur, Sutesh Kumar appellant was awarded 7 years’ rigorous imprisonment and a fine of Rs. 1000/- under Sections 306 and 304B of the Indian Penal Code. In default of payment of fine, further R.I. for six months; he was also sentenced to undergo three years’ R.I. and a fine of Rs. 500/- under Section 498A, IPC in default of payment thereof to undergo further R.I. for three months while Chunni Lal and Mst. Kishno were awarded four years’ R.I. under Sections 306 and 304B of the Indian Penal Code, and a fine of Rs. 1000/- each under Section 306 IPC or in default of payment thereof to suffer further R.I. for six months. Both the aforesaid appellants were further sentenced to undergo two years R.I. and a fine of Rs. 500/- each under Section 498A IPC and in default of payment thereof three months R.I. All the substantive sentences were ordered to run concurrently. Feeling aggrieved against their conviction and sentence, the appellants have come up in appeal.
2. In brief, the facts of the prosecution case are that Mst. Kailasho alias Kailash Kumari sister of Tilak Raj (PW-3) and Mulakh Raj (PW-4) of village Behmrapur was married with Suresh Kumar, accused-appellant, of village Madhopur Koolian about 8 months prior to this occurrence. She visited her parents village after the Muklawa ceremony and informed her brothers and mother that her parents-in-law, husband and Dewar were harassing her on the ground of having brought inadequate dowry. Her brothers then accompanied her to the house of her in-law and persuaded them to behave nicely towards her. Lateron, whenever Kailasho (deceased) visited her parents house, she apprised her brothers that her in-laws were insisting and pressurising her for fetching more dowry. Her brothers and mother used to pacify her and left her at her in-laws house. About 11/2 months prior to this occurrence Chunni Lal, father-in-law of the deceased gave beating to her and asked that she should take back the articles of dowry to her parents house or to fetch a television and a sofa-set. She conveyed this message to her brothers, upon which they along with their mother Giano Devi visited the house of the in-laws of the deceased and assured them that they would gift these articles at the proper time, On 8.7.1987 Tilak Raj and Mulakh Raj (PWs) went to village Madhopur Koolian to assertain the welfare of their sister when she appraised them that her dewar often quarrelled with her. They tried to persuade her in-laws not to quarrel with her but to no effect. On 12.7.1987, at about 8 a.m. they received a message that their sister was taken ill and is admitted in the Hospital. Accordingly, these two witnesses along with their mother Giano Devi rushed to Civil Hospital Sujanpur but failed to locate Mst. Kailasho there. They then went to the house of her in-laws in Village Madhopur Koolian and found her lying dead with burn injuries on the floor of a room, None of the accused or any other member of their family was present there. They suspected that their sister has either committed suicide due to harassment of her husband Suresh Kumar etc. or the accused had killed her by setting her on fire after sprinkling kerosene oil. Leaving Mulakh Raj near the deadbody aforesaid Tilak Raj PW left for Police Station Sadar Pathankot for lodging the report but happened to meet ASI Dhian Lal in the area of Village Sujanpur and lodged report Ex. PB. It was concluded at 3.30 p.m. On 12.7.1987, on its basis, a case under Section 306 of the Indian Penal Code, was got registered against the accused at 6.10 p.m. vide FIR Ex. PB/1 at the Police Station through ASI Harbhajan Singh. Special report of the case was conveyed to the Illaqa Magistrate………… through Constable Prem Pal at 8.30 p.m. on the same evening.
3. SI Dhian Lal (PB-7) after despatching the statement Ex. PB of Tilak Raj PW to the Police Station, arrived at the spot and held inquest proceedings on the dead body of Smt. Kailasho. The dead body was entrusted to Constables Kishan Chand and Dilip Chand for post-mortem examination. He also inspected the spot and prepared its rough site plan Ex. PD. During spot inspection stove (Ex-Pi) and match box (P2) were also seized from the spot. He also recorded the statements of the witnesses.
4. The autopsy on the dead body of Mst. Kailasho was conducted by lady Dr. Mrs. Anupma Gill (PW-1) at Civil Hospital, Pathankot. She found that the entire body except abdomen and head, face except chin were having burns which were ante-mortem in nature and that the death had taken place due to shock resulting from extensive burns which were sufficient to cause death in the normal course of nature.
5. All the accused continued absconding |till they were arrested on 13.7.1987.
6. After completion of investigation, all the accused were arraigned for on such like allegations by submitting the charge-sheet before the committing Magistrate who committed the case against the accused to the Court of Sesszons,
7. Before the Trial Court, in order to prove its above referred case, the prosecution examined 7 witnesses, including the tendering of formal evidence of Constable Prem Lal on affidavit which was exhibited as PW 6/A, as he was not required for cross-examination purposes. The version of all the accused–appellants before the Trial Court was that Kailasho died due to accidental burns. Suresh Kumar accused further alleged that he was away to Mamoon Cantt, where he used to work as a Tailor on reaching at the village at about 8/9 p.m. and came to know that his wife had caught fire accidentally and that she has been removed to Sujanpur Hospital. He then went to Sujanpur and found her dead. His parents………and uncle were present near the dead body at Sujanpur Hospital. They brought the dead body to their house and sent message to the relatives besides informing the police. Brothers of the deceased arrived on the next day after the arrival of the police and they set the house of his father on fire. He also maintained having been arrested along with his parents and brother after the cremation and that he, his parents or brother had never malteated the deceased or demanded any dowry. It was also alleged that he along with the deceased used to reside separately from his parents and other members of his family.
8. Chunni Lal and Mst. Krishno appellants also stated that the deceased along with her husband Suresh Kumar used to reside separately from them since four months before the occurrence and that she had received burns while cooking meals on the stove at about 8 p.m. and that they removed her for treatment to the Hospital but the Hospital being closed at that time and they tried to take her for treatment to a private doctor but in meantime she died. They then brought the dead body to their house and informed her parents as well as to the Police.
9. The appellants, however, did not lead any defence before the Trial Court despite being called upon to do so.
10. The Trial Court believing the ocular evidence of Tilak Raj and Mulakh Raj P.Ws, brothers of the deceased, coupled with the medical evidence convicted and sentenced the appellants as referred to above. Their co-accused Janak Raj was given the benefit of doubt and acquitted, as being of tender age, he had no axe to grind in demanding dowry.
11. I have heard the learned Counsel for the parties beside perusing the record.
There is considerable force in the contention of Mr. Mann that it cannot be said to be a case of dowry death as there is no allegation regarding the appellants having treated Kailasho with cruelty soon before her death and one of the essential ingredient of dowry death contained in Section 304B of the Indian Penal Code is missing. The provisions of Section 304B runs as under :
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 1861).
(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 imprisonment for life.”
A bare glance through the same leaves no doubt that to fall within the definition of dowry death, the prosecution is required to prove that soon before her death, the deceased was subjected to cruelty or harassment by her husband or any relative of her husband for or in connection with any demand of dowry besides the other ingredients like the death of a woman having been taken place due to burns etc. within 7 years of her marriage.
12. Under Section 113B of the Evidence Act, 1872, also to raise a presumption of dowry death, the prosecution is to establish that soon before her death a woman was subjected to cruelty or harassment in connection with any demand for dowry. The explanation to this Section further provide that the dowry death shall have the same meaning as in Section 304B of the Indian Penal Code.
13. It is note worthy that in the FIR lodged by Tilak Raj, PW3, it is mentioned that about 11/2 months prior to the present occurrence, Chunni Lal appellant had given beatings to the deceased and asked her either to take away the gifted articles back or to bring a Television and Sofa-set, and subsequently on 8.7.1987. when they had visited the house in-laws of her sister, she appraised them that her Dewar still quarrels with her. Thus in the FIR, there is no allegation against the present appellants regarding harassment or cruelty towards the deceased on account of having brought less dowry on the last occasion. During his testimony at the trial Tilak Raj PW3 improved upon his version by stating that on 8.7.1987 which they visited the house of the in-laws of his sister she complained that her Dewar Janak Raj used to quarrel with her and that all the accused used to complain that she has brought less dowry and that she should fetch more dowry. Be was duly confronted with this omission in his statement Ex. PB before the police but failed to give any satisfactory explanation. In these circumstances, the above referred vague assertion against the appellants in the testimony of Tilak Raj PW being not corroborated by his statement Ex. PB before the police, is of no consequence to infer that soon before her death which took place on 11.7.1987, she was subjected to cruelty or harassment by any of these appellants. This is not inadvertent omission on the part of Tilak Raj in his statement. Ex. PB before the police as his version shows that about 11/2 months prior to this occurrence when he and his other brother had agreed to give the Television and Sofa-set at the proper occasion, the accused-appellants had left obviously satisfied. The testimony of Mulakh Raj PW, another brother of the deceased, that on their visit on 8.7,1987 to the house of the in-laws of his sister she complained that she was being tortured is vague as he has not given the details of the harassment qua each of the appellants and this does not figure in his statement Ex. PD recorded during the investigation of the case. When confronted in the regard, he simply asserted having stated so before the police. Consequently, the omission of this witness reflects upon the veracity of his testimony in this regard and rendered it partially unbelievable. Thus, the order of the Trial Court regarding the conviction of the appellants under Section 304B of the Indian Penal Code, on the basis of presumption under Section 113B of the Evidence Act being not sustainable is set aside.
14. The question then arises whether Mat. Kailasho had received burns accidentally by catching fire from the stove while cooking dinner or she had committed suicide. In this regard, the evidence of Lady Doctor Mrs. Anupuma Gill, PW-1, would play the dominent role as no witness was present at the time of occurrence. Dr. Gill during autopsy had found that the entire body was having burns except abdomen and head, face minus chin. Thus, if a person cooking meals catches fire accidentally then the abdomen being the nearest part of the body would catch fire first. So, the non-suffering of any burn on the abdomen is in itself sufficient to conclude that the victim has not caught fire accidentally. The factum that the stove and match-box were lying intact when taken into possession by ASI Dhian Lal during spot inspection further rules out the possibility of the victim having suffered burns due to accidential fire while cooking meals, as it was not even suggested to him during cross-examination that the stove had burst or some kerosene oil was found spilled or that some cooked or un-cooked food material was lying scattered nearby.
15. The assertions of Chunni Lal and Mst. Kishno accused-appellants that they had removed the victim for treatment to Hospital is not acceptable as their contention that the Hospital was closed is too far fetched to be believable because in the Civil Hospital some-body does remain on duty in the Emergency Wards. Consequently, it appears to be a lame explanation on their part to prove that being innocent they have taken steps to save the life of the victim. The factum that the accused had sent the message at 8 a.m. on the next day i.e. on 12.7.1987 to the brothers of the deceased about her ailment although she had died during the night further shows that the appellants were trying to mis-lead the relations of the deceased in believing that these two appellants had taken all the necessary steps to save her life and were innocent.
16. On the other hand, the conduct of the accused in absconding from their house on the next morning before Tilak Raj and Mulakh Raj witnesses had arrived there further reveals their guilty conscience.
17. Thus, there is no escape but to conclude that Mst. Kailasno had committed suicide.
18. The question then arises whether the appellants had abetted the commission of suicide by treating her with cruelty and harassment for her having brought less dowry. In this regard the presumption regarding abetment of suicide embodied in Section 113A of the Evidence Act is to be considered. Section 113A reads as under:–
“Presumption as to abetment of suicide by a married weman–When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative or 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 by such relative of her husband.”
Explanation–For the purposes of this Section, “Cruelty” shall have the same meaning as in Section 498A of the Indian Penal Code (45 to 1860).
A bare glance through the above provisions leaves no doubt that if a married woman had committed suicide within 7 years of her marriage and if it is proved that her husband or any 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 persons had abetted the commission of suicide. The explanation appended to this section further shows that the cruelty shall have the same meaning as defined in Section 498A of the Indian Penal Code.
19. The provisions of Section 498A of the Indian Penal Code read as under:
“Husband or relative of husband of a woman subjecting her to cruelty.–Whoever being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.”
Explanation–For the purposes of this Section, “Cruelty” means–
(a) any wilful conduct which is of such a nature as is likely to derive 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 meet such demand.”
The definition of cruelty figuring in the above referred explanation is of two types i.e. the one being wilful conduct which is of such a nature which is likely to derive a woman to commit suicide etc. while Clause (b) of the explanation deals with the harassment of a woman 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.
20. It is the consistent version of Tilak Raj and Mulakh Raj brothers of the deceased that the accused used to mal-treat and harass the deceased just after the Muklawa ceremony on the score that she had brought less dowry and that about 11/2 months prior to the occurrence Chunni Lal appellant had given beatings to her saying that she should take away the dowry articles or to fetch Television and Sofa-set. Tilak Raj and Mulakh Raj had undertaken to fulfil the demands of the accused-appellants regarding Television and Sofa-set at proper occasion. In these circumstances there is no escape but to conclude that Kailasho has committed suicide due to her harassment at the hands of the accused-appellants for having brought less dowry especially when she was a healthy, young and newly married lady and there is no circumstance on the file to show that she has committed suicide of her own accord due to some mental dis-order or for other extraneous reasons. The factum that according to Mulakh Raj PW 4. the deceased and her husband Suresh Kumar were living in a separate room, is of no consequence, as a perusal of the scaled plan Ex. PC of the spot prepared by Gurbux Singh Draftsman PW 5 as well as the rough site plan Ex PD prepared by AST Dhian Lal, shows that all the rooms are located in the same Court-yard of the house of Chunni Lal-appellant Obviously, a newly married couple would sleep in a separate room than that of the parents of the husband or elder brother. Consequently, the residing of the deceased in a separate room is of no consequence to absolve her parents-in-law of the offence of abetment for suicide especially when they had started harassing her on account of insufficiency of dowry articles and inferior gifts just after her Muklawa ceremony. Thus the order of conviction of these three appellants for an offence under Sections 306 and 498A of the Indian Penal Code, being well founded is hereby affirmed.
21. The Trial Court had already taken a lenient view in the matter of awarding sentence of the appellants under Section 306. IPC. The learned Trial Court has awarded sentence of four years each to Chunni Lal and Mst. Kalasho, under Section 306 of the Indian Penal Code. However, the sentence of 7 years awarded to Suresh Kumar husband is rather on the harsh side and the same is reduced to five years. The sentence of fine imposed upon all the appellants under Section 306 I.P.C. by the Trial Court is however maintained. There is no justification for awarding any sentence under Section 498A of the Indian Penal Code as the ingredients of cruelty being the necessary part of the presumption for abetment of suicide under Section 113A of the Evidence Act, covers the latter offence also by necessary implication. Thus the order of sentence under Section 498A, Indian Penal Code, is hereby set aside.
22. Accordingly, the appeal of the appellants stands partly accepted to the extent referred above. The appellants shall surrender to under-go the remaining sentence.