JUDGMENT
R.P. Awasthy, J.
1. It is an appeal against the finding of holding the appellant guilty committing an offence punishable under section 306 of I.P.C. and sentencing him to rigorous imprisonment of seven years.
2. Prosecution case is that Smt. Anusuiyabai daughter of G. Venkatrao (PW/2) and Smt. G. Ammaji (PW/3) residents of Waltair, Andhra Pradesh was married to the present appellant on 28.1.78. After he marriage Anusuiya came to reside with the accused/appellant, who was during the said period, working as Khalasi in General Store Railways at Raipur. It was decided while performing marriage of Anusuiyabai with the appellant that G.Venkatrao (PW/2) would give to the appellant one cot with mattress worth Rs. 600/. Apart from the said articles, the appellant was making a demand of Almirah also, from G. Venkatrao. The latter (Shri G. Venkatrao) could not give the said articles in dowry of the marriage of his daughter with the accused/appellant. Accused/appellant continued to make demand for the said articles being given to him, from G. Venkatrao and he also used to pester and pressurise Smt. Anusuiyabai for her gather giving the said articles in dowry to him.
3. Accused/appellant had illicit relations with one Chandra Bhaga Bai who was also serving in General Store Railways, Raipur. On account of non-fulfillment of demand of cot, mattress and Almirah as well as, on account of his illicit relations with Chandra Bhaga Bai, the accused used to subject Smt. Anusuiya to cruelty. One daughter was born out of the said wedlock to Anusuiya on 31.1.82.
4. On 10.7.82 Raju (accused/appellant) left his quarter at W.R.S. Colony, Raipur for his duty in General Stores at about 9.30 or 10.00 a.m. Anusuiya gave her daughter aged about six months to her neighbour, the wife of Nair, in the ground floor of the said quarters. Therefore, she went to the quarter of the accused/appellant where they were residing in the first floor. Smt. Anusuiya closed the door of the room and put fire on her clothes after pouring kerosene oil on herself. On her thus, putting fire on herself, smoke started coming out from the said room.
5. People gathered there and they broke open the door of the said house. They found Anusuiya burning. People brought her to the hospital but she died on the same date at about 11.25 a.m.
6. An intimation was sent from the hospital to the S.O. of P.S., City Kotwali, Raipur, where a report of untimely death of Anusuiya was recorded. On the same report (Ex. P/12) of untimely death of Anusuiya being recorded Sub- Inspector of Police, Shri A.P. Pathak went to the house of the accused/appellant where dead body of Anusuiya was Kept. Shri A.P. Pathak conducted usual death inquest and sent the said dead body to Civil Surgeon, Raipur, where Dr. S. Sanyal (PW/1) conducted post-mortem examination on the dead body of Smt. Anusuiya. As per report (Ex. P/1) Smt. D. Anusuiya had sustained 90% of ante-mortem burn injuries. Prior to her death, she had written suicide note (Ex. D/3), by virtue of which she has expressed that she was dying as she had no desire to live. She had also expressed in the said suicide note that her clothes and articles should be returned to her parents.
7. Since the matter was not investigated properly by the Police Officials concerned Shri D.S. Dhurve ordered as per letter (Ex, P/10) that offence be registered against the accused/appellant and the matter be investigated. On receiving the said letter Shri L.P. Tiwari (PW/6) registered the offence as per report (Ex. P/11) at Police Station, Khamtarai, Raipur. During the course of investigation Shri L.P. Tiwari seized letters (Ex. P/2 and Ex. P/4 to Ex. P/8 from G. Venkatrao (PW/2 ) as per seizure memo (Ex. P/9). Shri M. Vishawnathan translated the letters (Ex. P/2 and Ex. P/4 to Ex. P/8) and Hindi translation is contained in (Ex. P/4C to Ex. P/7C).
8. After completion of investigation, a report Under Section 173 Cr.P.C. was filed in the Competent Court. The accused /appellant denied the said allegations and pleaded not guilty.
9. After recording evidence in the case, the Trial Court held the accused/ appellant guilty and sentenced him as detailed above.
10. It has been argued for the appellant/accused that there is no evidence worthy of credence to indicate that the appellant had subjected Smt. Anusuiya to cruelty. The incident had taken place prior to the amendment of Section 113A and, therefore, the said provision would not be applicable in the present case. It has further to be seen that father of Smt. Anusuiya viz. G. Venkatrao (PW/2) had reached Raipur on 11.7.82 and he resided for seven long days in the house of appellant, but he did not inform the Police regarding his daughter being subjected to cruelty by the accused. As a matter of fact, G.Venkatrao was demanding monthly allowance for maintenance of the daughter of the accused at the rate of Rs. 200/- per mensem. The accused was willing to pay maintenance allowance at the rate of Rs. 50/- per mensem, when accused declined to pay the said maintenance allowance at the rate of Rs. 200/- per month. G. Venkatrao lodged the First Information Report. The contents of the letters (Ex. P/2C and Ex. P/ 4C to Ex. P/7C) do not go to indicate that Anusuiya was subjected to cruelty. Therefore, the appellant/accused deserves to be held not guilty and he should be acquitted of the charge framed against him.
11. In reply the learned Government Advocate has fully supported the finding given and sentence awarded by the Trial Court.
12. From suicide note (Ex. D/3), it is fully established that Smt. Anusuiya committed suicide. Other evidence on record goes to indicate that the said suicide was committed by pouring kerosene oil on her clothes and putting fire on herself. Therefore, main point for determination in the present case was and is as to whether the prosecution has succeeded in establishing that the accused was subjecting Anusuiya to cruelty, on account of which she committed suicide.
13. In paragraphs No. 8 and 9 of the judgment delivered by the Trial Court, the evidence available on record has been discussed. G. Venkatrao (PW/2) and his wife G. Ammaji (PW/3) both have deposed that the accused/appellant used to make illegal demands from them for giving one cot, mattress, Almirah and other articles which could not be given to him. Apart from it Anusuiya had told her mother G. Ammaji (PW/3) and her father G. Venkatrao (PW/2) that the accused/ appellant had illicit relations with one lady by name Chandra Bhaga Bai. On account of both of the said reasons, the accused used to torture Smt. Anusuiya or subjected her to cruelty. This fact is corroborated by the contents of letter (Ex.P/2C) in which demand of money for reimbursing the purchase of cot and mattress as well as for purchasing one Almirah has been made. In the letter (Ex. P/4C), it has been expressed that the accused/appellant was not happy with the said marriage. In letter (Ex. P/7C) demand of amount for purchasing the cot has again been made.
14. It has been argued for the accused/appellant that G. Venkatrao has admitted in para No.l6 of his deposition that it is customary in their community to give cot and mattress in marriage for purchase of which the accused/appellant was making a demand of Rs. 600/-. Therefore, since it was customary to give a cot and mattress in the marriage, it cannot be said that the accused subjected Smt. Anusuiya to cruelty by making a demand of the said articles.
15. In this respect, it has to be seen that in some communities, it is customary to give dowry in marriage of their daughter. But, merely on this account, if a person makes an illegal demand of dowry and subjects his wife to cruelty on account, of non-payment of such a dowry, the accused/appellant/husband cannot be absolved from the offence only on the ground that it was customary in the said community to give dowry in marriage. Therefore, it would hardly be material, if it was customary to give a cot and mattress in marriage of a person’s daughter.
16. It has also to be seen that G. Venkatrao and his wife Smt. G. Ammaji have both deposed that Anusuiya told them that accused had illicit relations with one Chandra Bhaga Bai. One S. Jairam N. Subbaiya (PW/9) has been examined as a witness in the present case. In the diary statements of the said witness which are contained in File-B of the record of the present case, it is specifically mentioned by the said witness that he had come to know that after the incident accused/ appellant had kept Chandra Bhaga Bai as his wife. However, the said part of the statement of S. Jairam (PW/9) was not confronted to him when he was examined as as prosecution witness. As the case may be the fact remains that according to parents of Anusuiya, they were told by her that the accused/ appellant had illicit relations with one Chandra Bhaga Bai.
17. It has to be seen that G. Venkatrao was a resident of Waltair. He was not conversant with Hindi language. He has given statement to the effect that when police did not inquire from him for seven days when he stayed in the house of the accused/appellant at Raipur, he made complaints in writing to Superintendent of Police, Chief Minister and Prime Minister. Thereupon, the police started investigation. From the tenor of the said statement, it appears that G. Venkatrao was expecting the police to come to him to enquire regarding the said matter. When the police did not enquire anything from him, he sent written complaints.
18. Under the given circumstances that G. Venkatrao was not conbersant with Hindi Language, was a resident of Waltair and, therefore, was a stranger at Raipur the statement given by him that he did not himself go to Police Station on account of fear of police, does no appear to be unnatural. Therefore, merely because G. Vanktrao did not lodge any report at Police Station for seven days when he had come to Raipur regarding subjection of cruelty by accused of his daughter, D. Anusuiya, it cannot be said that in view of the said circumstances, the testimony given by G. Venkatrao and his wife is suspect or is not worthy of credence. Specially, so when the said statements given by the said two witnesses find support from the contents of the letters (Ex. P/2C and Ex. P/4C to Ex. P/7C).
19. It has also to be seen that G. Venkatrao has deposed that the letter (Ex. P/ 8) was found in the drawer of the accused/appellant which was addressed by one Acharjee. Shri L.P. Tiwari has deposed that he had seized the said letter from G. Venkatrao as per seizure memo (Ex. P/9), which has been mentioned at Serial No. 2 as per seizure Memo (Ex. P/9). In the address the said letter had been addressed to Smt. Chandra Bhaga Bai, but has been written to the present appellant. In the said letter dated 17.4.82 greetings have been sent to the accused /appellant. However, in his statement recorded under section 313, Cr.P.C, the said material available on record has not been put to the appellant. Therefore, the said evidence (if at all) cannot be and is not being read in evidence. However, from the letter (Ex. P/2C and Ex. P/4C to Ex. P/7C), the statements given by G. Venkatrao and B. Setty Ramrao (PW 9) and Smt. G. Ammaji find support that the accused/ appellant was making demand of amount from the parents of his wife Smt. D. Annsuiya. From the testimony given by all of the said three witnesses, it further appears that the accused had illicit relations with some other lady. The suicide note (Ex. D/3) produced by the appellant himself, goes to indicate that Smt. D. Anusuiya had expressed her desire that her clothes and articles should be returned to her parents. This also goes to indicate that Smt. Anusuiya was dissatisfied with the attitude of the accused/appellant and, hence had expressed her desire that the articles belonging to her should not remain with the appellant but should be returned to her parents.
20. The said evidence coupled with the circumstances that Smt. D. Anusuiya died within four years of her marriage with the accused when she had a daughter of very tender age goes to indicate and establish that Smt. D. Anusuiya was subjected to cruelty by the accused on account of the proved facts that there was non-fulfillment of illegal demand made by the accused/appellant and his illicit relations with some other lady.
21. It has to be seen that since the amendment made in Section 113A of the Evidence Act pertains to procedural or inferential law pertaining to appreciation of evidence, it would be retrospectively operative (Please see A.I.R. 1990 S.C. at Page 209 Para No. 36). In view of the said reasonings, it is held that the Trial Court has not committed any error in holding the accused/appellant guilty for committing an offence punishable under Section 306 of the I.P.C.
22. However, the sentence awarded to the accused/appellant of rigorous imprisonment for seven years is reduced to rigorous imprisonment for three years. The period during which the accused/appellant remained under custody shall be adjusted in the quantum of sentence awarded by this Court to him.
23. Therefore, but, for reducing the quantum of sentence as has been detailed above, the present appeal fails and is disallowed.
