JUDGMENT
R.L. Anand, J.
1. This is a criminal appeal filed by two brothers Krishan and Sat Pal sons of Bhala, and has been directed against the judgment and order dated 9.10.1987, passed by the Court of Additional District and Sessions Judge, Hisar, who convicted the appellants Under Section 304-B/201, IPC and sentenced them to undergo R.I. for a period of 7 years Under Section 304-B, IPC and RI for one year Under Section 201, IPC. The Trial Court also held that both the substantive sentences shall run concurrently.
2. The brief facts of the case can be described in the following manner :
3. Complainant Pirthi had four sons and two daughters. The name of one of his daughters was Hardei, who was married with Krishan, appellant in village Kharak Punia about 4/5 years before her death, which took place on the night intervening 2/3.11.1986. According to the complainant, he had spent about Rs. 15,000/- or Rs. 16,000/- on the marriage. However, Krishan, appellant, and his father Bhala, since deceased, were not satisfied with the dowry and they used to taunt and harass Hardei for bringing insufficient dowry and used to say that the) had contracted relationship with miserly people. Hardei started visiting her matrimonial home about 3/4 years before her death. She had given birth to a female child. This child was about one years and 9 months old at the time of her death. About a month before, the matter was reported to the police by Pirthi. Hardei had come to the house of her parents as she was tired of the maltreatment at the hands of the accused. She narrated her tale of woe to her parents. However, after some days, Badlu, grand-father of the accused came to village Bhongra and in the presence of Manphul, Amin Lal and Munshi, assured Pirthi that Hardei will not be harassed any longer and that she should be sent on his assurance. Pirthi took him on his words and sent Hardei after 10/15 days with his son Raj Kumar. Raj Kumar left her in Kharak Punia and returned to Bhongra. On 3.11.1986, Pirthi sent his son Raj Kumar to village Kharak Punia to enquire about the welfare of Hardei. Raj Kumar returned to Bhongra on the same day and told that Hardei had already died and that she had already been cremated. No intimation about her death or cremation was sent to her parental side. On getting this information, Pirthi, Bhartu and Dalipa went to village Kharak Punia to find out the facts for themselves. They made enquiries about the cause of death of Hardei and came to know that accused Krishan and Satpal and their father Bhala used to harass and maltreat Hardei and frustrate, she was driven to commit suicide.
4. Pirthi lodged this report with the police on 6.11.1986 on which the investigation was taken into hand. The police went to village Kharak Punia. The accused were not available on 6th and 7th November, 1986. The police went to Kharak Punia on 9.11.1986 and on that day the leather string, Ex. P1, was produced by Bhaia, since deceased, which was taken into possession vide recovery memo, Ex. PD. On the identification of Bhala, the burnt pieces of bones and ash were taken into possession by the police from the cremation ground after making a sealed parcel in a gunny bag.
5. Risal Singh was present in the Panchayat in which Pirthi disclosed about the death and cremation of his daugther Hardei and was one of the persons who advised Pirthi to go to village Kharak Punia to enquire about the facts for himself. On 6.11.1998, the Panchayat, again, collected, before whom Pirthi told about what he had ascertained in village Kharak Punia and about the matter having been reported by him to the police. Risal Singh and some other villagers had gone to village Kharak Punia on 7.11.1986 to enquire into the matter and after getting information that Hardei had been driven to commit suicide, they returned to their village.
6. On 8.11.1986, the appellants and their father Bhala came to Risal Singh and made an extra judicial confession about their having harassed Hardei as a result of which she committed suicide and she having been cremated. They promised to return all articles of dowry. On 9.11.1986, Risal Singh brought the appellants and their father Bhala to village Kharak Punia and produced them before the police.
7. On the completion of the investigation of the case, challan was presented Under Sections 306/498/201, IPC against the appellants in the Court of the Area Magistrate, who supplied the copies of the documents and vide commitment order dated 8.6.1987, committed the accused to the Court of Sessions. Bhala died on 9.1.1987, much prior to the presentation of the challan and for that reason, the challan was not submitted against him.
8. The learned Additional Sessions Judge vide his order dated 24.7.1987, charge sheeted the appellants Under Section 304-B and Section 304 read with Section 201, IPC. The charges were read over and explained to them to which they pleaded not guilty and claimed trial.
9. In order to prove the charges, the prosecution examined Shamsher Singh, draftsman, PW 1, Constable Surinder Singh PW 2, Pirthi, complainant and father of the deceased, PW 3, Manphul, PW 4, Risal Singh, PW 5 and SI Roshan Lal, PW 6. The remaining witnesses were given up as unnecessary.
10. On the closure of the prosecution evidence, the statements of the accused were recorded Under Section 313, Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to the accused. Accused denied those circumstances and the plea of Krishan, appellant, was as follows :
“My marriage with Hardei took place about 8/9 years ago and the Muklawa was performed about a year thereafter. It was a very simple marriage. A female child was born to her, that child is now 3-3/1/2 years old and is being brought-up by me. We never demanded anything from Hardei or her parents. Hardei had been ailing for quite some time and her parents knew about her ailment. When she died, we sent Dalip to village Bhongra to inform her parents upon which Pirthi and Raj Kumar reached our village at about 12/1.00 p.m. on 3.11.1986. They attended the funeral of Hardei. The entire village was present. Badlu never went to Bhongra. He is aged about 86 years and is suffering from Asthma. After the cremation, Pirthi and Raj Kumar left the village. Two days after the cremation, Pirthi came to us and asked for returning the articles of dowry. We offered him everything we had in our possession. He asked for gold and silver ornaments which we did not have. He, thereafter, left our village threatening that he would take the articles through the police and therefore, he got this false case registered against me and my co-accused in order to harass us. My father Bhala died during the pendency of this trial.”
11. The defence taken up by Satpal before the Trial Court was the same as his real brother Krishan.
12. When called upon to enter defence, the accused examined DW 1 Dalip, who deposed that at the time of the cremation of Hardei, Pirthi and Raj Kumar alongwith the Panchayat of village Bhongra came to village Kharak Punia alongwith 40/50 persons and in their presence the cremation of Hardei took place. Similar is the statements of Mewa and Badlu, DWs 1 and 2, respectively.
13. The learned Trial Court relied upon the prosecution story and convicted and sentenced the appellants in the manner as stated above. Aggrieved by the said judgment and order, the present appeal.
14. I have heard Mr. Baldev Singh, Senior Advocate, on behalf of the appellants and Mr. J.P. Dhull, Advocate, for Haryana State and with their assistance have gone through the record of this case.
15. Before I proceed further, I must say that the learned Trial Court fell in error when it decided to frame the charges against the appellants Under Sections 304-B and 304-B read with Section 201, IPC, for the simple reason that Section 304-B, IPC was brought on the statute of the IPC on 19.11.1986. The crime in this case has been allegedly committed on the night intervening 2/3.11.1986.In this view of the matter, the learned Trial Court was not justified in framing the charge Under Section 304-B, IPC nor it was justified in recording the conviction. Also, the learned Trial Court committed a wrong when it invoked the provisions of the Indian Evidence Act. Also, it may be mentioned that the challan against the appellants was presented Under Sections 306/498-A/201, IPC, and not Under Section 304-B, IPC, obviously, for the reason that this section came on the Statute on 19.11.1986. The offence was also registered Under Sections 306/498-A/201, IPC.
16. Be that as it may, now, it is to be seen whether the offence Under Section 306, IPC, is made out or not.
17. Section 306, IPC, lays down that if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
18. The learned Counsel for the appellants submits that before attracting the provisions of Section 306, IPC, it has to be proved by the prosecution that Hardei had committed suicide and that there was abetment to her from the side of the appellants as to drag the deceased for the commission of suicide. The Counsel also submitted that the deceased might have died in different circumstances and the information about her death was given to her father as a result of which the Panchayat of village Bhongra alongwith the father of the deceased came to village Kharak Punia in order to attend the cremation. The Counsel also submitted that since there is no evidence of suicide and also there is no evidence of abetment, in these circumstances, the conviction of the appellant cannot be even maintained Under Section 306, IPC.
19. On the contrary, the submission of the State Counsel is that as the death of the lady had taken place in the house of her in-laws and it has come in the statement of Pirthi that he was not informed about the death of his daughter, therefore the appellants should be convicted Under Section 306 and 201, IPC.
20. After considering the rival contentions of the parties, this Court is of the opinion that the offence Under Section 306, IPC, has also not been proved. There is no postmortem report of the deceased. Cause of death, in these circumstances, will remain a mystery. With regard to the evidence of abetment, there is no allegation even in the FIR made by Pirthi that the accused had been taunting the deceased for committing suicide. The allegations of the FIR, in the opinion of this Court, constitute an offence Under Section 498-A, IPC. This section was there on the Statute. As per this section 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. Cruelty has also been explained in this very section which means 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 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.
21. The case of the prosecution is squarely covered under Explanation (b) attached with Section 498-A, IPC. Now, let us revert to the substantive piece of evidence. Pirthi was none else but the father of the deceased. In such like cases, the family members of the deceased are probable and natural witnesses. If the daughter of a family is not happy in the house of her in-laws she would always confide in her parents, brothers and other relations about her harassment and maltreatment. PW 3 Pirthi had categorically stated in his statement that the accused were not happy with the dowry given by him and whenver Hardei came to his house, she used to tell that the accused had been taunting her by saying that they had contracted relationship with miserly people and that they used to beat her. It has been further deposed by this witness that one month prior to her death, the deceased came to his house and told him about the harassment done to her by the accused who had also beaten her. She asked her father to keep her and that she would not go to the house of her in-laws. Further, it has come in the statement of this witness that 10 days after her arrival, the grand father-in-law of his daughter approached him and he assured him that his daughter may be sent to the house of her in-laws and no harm will be caused to her. Besides that, there is no evidence that there was instigation, goading or urging the deceased to commit suicide or to finish herself. In this view of the matter, Section 498-A, IPC, is definitely made out after going through the statement of Pirthi, whose statement has also been corroborated by Manphul Singh, PW 4. So far as the alleged evidence of maltreatment is concerned, it is pointed to the husband and not to the Devar of the deceased. Resultantly, there is no difficulty in convicting Krishan Under Section 498-A, IPC. Since the record of the case is barren about the evidence regarding cruelty vis-a-vis Satpal, therefore, he is extended benefit of doubt and he stands acquitted of the allegations Under Section 498-A, IPC.
22. With regard to the evidence Under Section 201, IPC, again we have to switch over to the statement of the PWs 3 to 5, who have consistently deposed that with regard to the death of Hardei, her father was never informed and the cremation has been done at the back of the parents of the deceased. In this manner, both the appellants cannot escape from the liability Under Section 201, IPC, because they wanted to screen themselves from the legal punishment fully realising that the offence Under Section 498-A, IPC, has been committed by Krishan, appellant, as he had been causing harassment to the deceased alongwith his father Bhala. Therefore, I convict both the appellants Under Section 201, IPC.
23. Section 498-A, IPC, is a lesser offence than Section 304-B and, therefore, conviction Under Section 498-A, IPC, can always be there though the charge in that regard has not been framed against the appellants.
24. The net result is that the appeal of the present appellants succeeds partly. Krishan appellant, is hereby convicted Under Section 498-A, IPC, and he is sentenced to undergo RI for 3 years. He is further convicted Under Section 201, IPC and stands sentenced to undergo RI for one year. Both the sentences of Krishan shall run concurrently. So far as Satpal, appellant, is concerned, he stands convicted Under Section 201, IPC and he is sentenced to undergo RI for one year. The conviction and sentence of both the appellants Under Section 304-B, IPC, is hereby set aside, for the reasons stated above.
25. Let a copy of this judgment be sent to the CJM, Hisar, so that the appellants may be above to serve the remaining sentence.