JUDGMENT
D.J. Jagannadha Raju, J.
1. This criminal appeal is filed by the two accused who are convicted and sentenced by the Assistant Sessions Judge, Kothagudem in Sessions Case No. 97 of 1989. The Sessions Judge, by his judgment dated 28th May. 1990 convicted A.1 and A.2, the husband and the mother-in-law of the deceased Seetharatnam for offences under Sections 498-A and 306 I.P.C. A.1 and A.2 were sentenced to suffer R.I. for two years for the offence under Section 498-A A.I.P.C. For the offence under Section 306 I.P.C, A.1 was sentenced to suffer R.1 for a period of five years, A.2, on the ground that she is a female, was sentenced to suffer R.1 for a period of three years for the offence under Section 306 I.P.C. Both the sentences to run concurrently. The Sessions Judge actually framed the first charge for the offence under Section 498-A I.P.C. The second charge was framed for the offence under Section 306 I.P.C. Alternatively under the second charge he framed a charge for the offence under Section 304-B I.P.C. In the judgment, the learned Sessions Judge discussed the entire evidence elaborately, recorded his findings with regard to six points for consideration framed by him in para 6 of the judgment. Point No. 4 deals with the alternative charge under Section 304-B I.P.C. The learned Judge recorded his findings on the various points for consideration as follows :
2. On the first point he held that Seetharathnam committed suicide by drowning herself in the well. On the second point, he held that the evidence establishes beyond doubt that A.1 and A.2 used to harass and subject Seetharatnam to cruelty on the ground that she was barren and that the dowry brought by her was inadequate and meagre. He also observed that it is established beyond any element of reasonable doubt that A.1 and A.2 harassed Seetharathnam and subjected her to cruelty for a number of years until her death with demands to bring more money from her parents. They harassed, teased, taunted and tormented her for being childless. They used to call her a barren woman time and again and they also threatened that A.1 would desert her and re-marry to beget children. All these facts amount to mental cruelty and harassment. On Point No. 3, the Court recorded its findings as follows :
“The prosecution has succeeded in establishing that A.1 and A.2 subjected Seetharathnam to cruelty and harassment day in and day out, that by their conduct A.1 and A.2 had abetted the commission of suicide by Seetharathnam.”
3. On Point No. 4, it held that the death of Seetharatnam has occurred otherwise than under normal circumstances within a period of seven years of their marriage. On Point No. 5, he came to the conclusion that the presumption under Section 113-A of the Evidence Act applies and that Seetharathnam committed suicide within a period of seven years from the date of her marriage and that the accused failed to rebut the presumption raised under Section 113-A of the Evidence Act. On Point No. 6, he recorded a finding to the effect that the prosecution succeeded in establishing the guilty of the accused beyond reasonable doubt for the offence under Section 498-A I.P.C. and for the offence under Section 306 I.P.C. The Judge did not record any finding as to whether the ingredients of the alternative charge under Section 304-B I.P.C. are established. In the concluding paragraphs, he never dealt with the alternative charge. He never recorded a finding as to whether the accused are liable to be acquitted for the alternative charge under Section 304-B I.P.C. Aggrieved by the judgment and sentences, the present appeal is filed.
4. In this appeal Sri Y. Rama Rao, appearing for the appellants contends that there is absolutely no evidence of harassment of cruelty meted out to the deceased. Hence the conviction under Section 498-A I.P.C. is unsustainable. He also contends that there is absolutely no evidence of abetment by the accused for the suicide committed by Seetharatnam. The conviction for an offence under Section 306 I.P.C. is wholly unsustainable. In fact, there are different versions as to the cause of death of Seetharatnam. There is no proof that she committed suicide by taking poison. There is no proof that she died as a result of drowning. The evidence reveals that when she was taken out of the well, she was not actually drowned. She was caught on the angulars fixed to the motor. The exact cause of her death is not placed before the Court. The Chemical Examiner’s Report Ex. P. 5 excludes the possibility of death due to fatal injuries and death by poison. Mr. Y. Rama Rao contends that in this case, there is no scope for invoking the aid of Section 133-A of the Evidence Act. There is no positive evidence about harassment. At least, there is no evidence of any proximate harassment just before the alleged suicide by Seetharathnam. There is every possibility of her falling in the well accidentally in a drunken state. Mr. Rama Rao relies upon a few decisions of the High Courts and the Supreme Courts in support of his arguments.
5. On behalf of the State, the learned Public Prosecutor contends that in this case, there is abundant evidence to show that Seetharathnam was treated cruelly and harassed continuously for three reasons. (1) constant demands for more money and more dowry. She was continuously pestered and asked to get more money. (2) She was illtreated alleging that she is a barren woman. (3) The husband was threatening her by saying that he would marry a second wife. Thus she was humiliated, harassed and tortured mentally and physically. It is a case of continuous harassment, An offence under Section 498-A I.P.C. is well established. It is true that there is no positive evidence of accused actually abetting the suicide committed by Seetharathnam. But there is ample material to indicate that she must have been administered poison before she jumped into the well. The finger of guilt points to the two accused who were the only other occupants of the house. The conduct of A.1 and A.2 also indicates that they are the people responsible for the consuming poison and jumping into the well. What exactly happened immediately before she jumped into the well is a matter which was exclusively known only to the two accused and the deceased. Considering the fact that in this case the marriage took place in 1984 and the death took place otherwise than under normal circumstances within seven years of the marriage as a result of cruelty and harassment, an offence under Section 304-B I.P.C. is well-established. In fact, the Sessions Judge recorded findings which clearly prove that the prosecution established the guilt of the accused for an offence under Section 304-B I.P.C. But unfortunately he convicted the accused for an offence under Section 306 I.P.C. ignoring the fact that an alternative charge under Section 304-B I.P.C. was also framed and, in fact, the alternative charge was well-established. This is a case where the Court should invoke its power under Section 386 Cr. P.C. and altering the finding, convict the appellants for an offence under Section 304-B I.P.C. The Public Prosecutor submits that the sentences imposed by the Trial Court for an offence under Section 306 I.P.C. have necessarily to be enhanced so as to bring the sentences in conformity with the statutory requirements of Section 304-B I.P.C. This can be done by the Court by issuing notice for enhancement of the sentence and then after giving an opportunity, the sentence may be enhanced.
6. The points that arise for consideration in this appeal are :
(1) Whether the prosecution established the guilt of the accused for an offence under Section 498-A I.P.C. ?
(2) Whether the evidence on record establishes the guilt of the accused for an offence under Section 306 I.P.C. or in the alternative for an offence under Section 304-B I.P.C. ?
(3) If the Court comes to the conclusion that the accused are guilty of an offence under Section 304-B I.P.C., what is the method to be followed to properly punish the accused ?
Point Nos. 1 and 2
7. The facts of the ease briefly stated are as follows: A.2 is the mother of A.1. A.1 married Seetharathnam in 1984. She is the daughter of P.W. 2 and P.W. 3 and younger sister of P.W.1. At the time of marriage her parents gave a dowry of Rs. 41,000/- to A.1 They led a happy conjugal life for about a year. As Seetharatnam did not bear children, A.1 and A.2 started harassing her. They were remarking often that she is barren and that the dowry brought by her is meagre and they were asking her to get more money from her parents on various pretexts. They were openly insulting and humiliation her by calling her before all people that she is a barren woman and that A.1 would marry a second wife and thus he was constantly threatening her. Even in the presence of the parents and relations of Seetharathnam, the accused were constantly making the demands for money and insulting the deceased by calling her as a barren woman and A.1 was proclaiming that he would marry a second wife. In fact, due to the constant demands of money, P.W. 2 paid two amounts of Rs. 2,000/- and Rs. 3,000/- on different occasions. But A.1 and A.2 were not satisfied. As P.W. 2 contemplated selling his land and giving the money realised to his daughters, A.1 and A.2 were pestering her to bring her share in Rs. 45,000/-. When A.1 and the deceased visited the house of P.Ws. 2 and 3 for the Dasara of 1988, in the midst of the family members, she was humiliated and harassed. He was demanding money. Soon after on November 27th, while the deceased was living in the house of the accused, she jumped into a well. She was taken out with certain minor injuries on the legs. She was carried from hospital to hospital and then she died on the night of 27th November, 1988 before proper medical examination was conducted. The accused never tried to send any intimation to the parents and brothers of the deceased. In fact, the accused were not even prepared to bring the dead body from Khamman Government hospital to their native place Annapureddipalli village for purposes of cremation. Only on persistent demands, the dead body was brought and cremated at Annapureddipalli. The evidence in the case has to be judged in the light of the above facts.
8. It may, at once, be said that in this particular case, there were a lot of laches on the part of the prosecution. Some of the glaring laches are, while Seetharathnam was taken to the hospital at Sathupalli and then to the hospital at Penuballi and then only to the hospital at Khammam. The two doctors, who saw her at Sathupalli and Penuballi, are not even cited as witnesses. They were not examined. Mandal Revenue Officer P.W. 10, who held the inquest, did not conduct the inquest properly and exercising the element of caution which is normally expected of him. His conduct was severely commented by the Sessions Judge. No effort was made to record any dying declaration of the deceased though there is ample evidence to show that she was conscious when she was removed from the well. One of the doctors, who conducted the post-mortem examination, is examined as P.W. 11. They never made any efforts to preserve the stomach contents and fluids for chemical examination. They only preserved the viscera for the chemical examination. P.W. 14, the doctor, who first examined Seetharathnam in the Khammam hospital, claims that Seetharathnam was brought to the hospital in a condition where she was unable to speak. She died within a minute or two even before she could examine her. According to the doctor, since it is a case of suspicious death by poisoning, she sent intimation Ex. P. 3 to the police.
9. According to the charge sheet, A.1 found the deceased missing from the house when he returned to the house after visiting the temple. He enquired about his wife with A.2. Meanwhile he heard grumbling noise from inside the well. Immediately A.1 and A.2 rushed there and found the deceased’s leg with entangled to an angular inside the well. Then people gathered and they lifted the deceased from the well. She was in a semi-conscious state and white froth was coming from out of her mouth. Then she was taken first to the hospital at Sathupalli and then to the civil hospital at Penuballi and then to the Government hospital, Khammam. She died at 11 P.M. at Government Head-Quarters Hospital at Khammam.
10. P.W. 6, who went inside the well and brought out the deceased, claims that at 2 or 3 P.M., he heard cries from the backyard of the house of A.1 and A.2 Then himself and some others rushed to the house of A.1 and A.2 and they saw A.1’s wife in the well. Her leg was caught in the angular of the motor of the well. Then this witness and one Basha got into the well and both of them brought Seetharathnam from the well to the outside. She was alive then. Her condition was precarious. Then she was removed at Sathupalli. In the night, he came to know that Seetharathnam died. He claims that Seetharathnam was unable to speak after removal from the well. He does not know whether A.1 was affectionate to his wife. P.W. 7 T. Narasaiah states that Seetharathnam committed suicide by jumping into a well in the backyard of A.1’s house. P.W. 6 and Basha got into the well and brought out Seetharathnam. Seetharathnam remarked as to why she was allowed to live. This witness turned hostile and he was cross-examined by the prosecution. He introduced the theory that Seetharathnam was suffering from stomach-ache and that she was found weeping due to stomach-ache a few hours before she jumped into the well. At the stage of inquest, P.W. 8 the inquest panchayatdar clearly stated that the dead body was smelling of pesticide and that the panches were told that Seetharathnam consumed poison and committed suicide unable to withstand quarrels from the names of the house. He claims that in the inquest report Ex. P. 2, it was clearly mentioned that the dead body was smelling of pesticide. He denies the suggestion that it is not correct to say that the panch witnesses were of the opinion that they were unable to ascertain as to why she committed suicide. P.W. 9, the Head-Constable, who was present at the time of M.R.O. conducting the inquest, claims that the M.R.O. recorded statements of some persons and conducted the inquest. He claims that the M.R.O. himself conducted the inquest from 1 to 3 P.M. on 28-11-1988. P.W. 10, the M.R.O., categorically states that he conducted the inquest and prepared Ex. P. 2 inquest report. According to him, he and the panch witnesses could not come to a decision about the cause of death. He speaks about recording statements of several witnesses. He admits that after preparing the inquest report, he recorded statements. He clearly states in the end portion of his cross-examination as follows:
“We found white froth in the nostrills. I did not observe whether the froth was smelling poison.”
Ex. P. 5 Chemical Examiner’s Report clearly shows that in the viscera that was examined, they did not find any poison. The chemical examination revealed the presence of alcohol in the pieces of stomach and intestines and in the pieces of liver and kidney. Thus Ex. P. 5 excludes death by poisoning. The Inquest Report in Column No. 15 mentions as follows :
“We, the panches, opine that we cannot state the exact reason for causing the death.”
There is no material in the Inquest Report to show that she died due to drowning. Column No. 7 clearly shows that there were injuries on the lower portions and side portions and there were injuries on the fore-arm and right hand on the back also there were injuries caused due to beating. There is white colour foam in the nose. No effort was made by the M.R.O. to take swabs of the foam that was present at the nostrills and send it for chemical examination. P.W. 14 the doctor claims that even before she could examine her, the deceased died and it was a case of suspicious death by poisoning. She never took any steps to take slides or swabs for the liquids or foams that were coming out of the nostrills. The post-mortem P.W. 11 clearly states that he and Dr. Sudhakar, who conducted the autopsy, found injuries on the dead body mostly on the knees and the legs. According to him, they could not, form an opinion regarding the cause of death. Having sent the viscera for chemical analysis, they reserved their opinion pending receipt of the report of the Chemical Examiner. He clearly stated that he cannot give the final opinion as to the cause of death.
11. A perusal of the post-mortem certificate Ex. P.6 clearly shows that several parts were found to be conjested and there was froth in the nostrills. The doctor ultimately did not give a final opinion even after receiving the Chemical Examiner’s Report Ex. P. 5. The fact remains that Seetharathnam died and it is not established whether she died due to poisoning or due to drowning. The Chemical Examiner’s Report indicated the presence of alcohol in the viscera. It is quite possible that some poison dissolved in alcohol might have been consumed or it is also possible that she could have taken a small quantity of alcohol. It is common knowledge that mere consumption of alcohol cannot cause death. Obviously the death was caused either due to her jumping into the well and getting drowned partially or due to her consuming poison. In both the cases, it is a case of her committing suicide.
12. It is an admitted fact that the marriage took place in 1984 and on 27-11-1988, she died by committing suicide. A perusal of the evidence of P.Ws. 1 to 5 clinchingly establishes that both the accused were repeatedly harassing the deceased and humiliating her and demanding her to get more money on the ground that the dowry given at the time of the marriage is meagre. P.W. 1 even speaks about their abusing and beating her on the ground that she was barren. On the ground that she was barren, she was being repeatedly humiliated. After the payment of Rs. 41,000/-, on two different occasion, P.W. 2 paid an amount of Rs. 2,000/- to A.1 three months prior to Dasara and then again he paid Rs. 3,000/-. They were asking her to get Rs. 10,000/-. They were also threatening to perform the re-marriage of A.1. The deceased Seetharathnam complained to all her relations. As she is not a literate woman and as she could not read or write, there is no scope for her writing any letters complaining about the ill-treatment given to her. In fact, P.W. 1 clearly stated that he advised his father to pay some amount to A.1 to appease him and to see that A.1 and the deceased live happily.
13. P.W. 2, the father of the deceased, gives very elaborate evidence about the harassment for more dowry and about his paying Rs. 2,000/-and Rs. 3,000/- due to his daughter being harassed for bringing more money and he also speaks about Seetharathnam complaining about her mother and Jhansi Lakshmi about A.1 contemplating to re-marry and his advising A.1 not to re-marry. A brother-in-law of P.W. 2 came at 9 P.M. on 27-11-1988 and informed him about Seetharatnam jumping into a well and she being removed to the Government hospital at Sathupalli. The accused never sent any message to the relations of Seetharathnam. P.W. 2 clearly says that he visited Annapureddipalle a few times and at that time A.2 was always complaining that the dowry given is meagre and that Seetharathnam was barren and so A.1 would re-marry. P.W. 2 also mentions about his not complaining to the elders to prevent the relations being further strained. Only two years after the marriage of Seetharathnam, they came to know that she was being subjected to harassment and cruelty.
14. P.W. 3, the mother of the deceased, clearly speaks about the various demands for money and the harassment of Seetharathnam with a view to make her bring more money. During the Dasara visit, P.W. 4 a daughter-in-law of P.W. 2 informed P.W. 2 that A.1 threatened to re-marry as Seetharatbnam was childless. She clearly stated that unable to bear the harassment and cruelty to which she was subjected by A.1 and A.2, Seetharathnam committed suicide. The witness further states that Seetharathnam used to disclose to her woes when she was alone.
15. P.W. 4, the sister-in-law of the deceased, speaks about the dowry being given at the time of the marriage of the deceased and about A.1 and A.2 declaring that A.1 would re-marry. According to this witness right in her presence, A.1 called Seetharathnam a barren woman and then declared that he would re-marry. During the Dasara visit also in the presence of this witness, A.1 insulted and humiliated Seetharathnam on the pretext of her being barren and his threatening to re-marry. The witness clearly stated that several of the villagers, who gathered at the time of the funeral, clearly stated that Seetharathnam was a good woman and that A.1 and A.2 were responsible for her committing suicide.
16. P.W. 5, the elder sister of the deceased, speaks about her father giving Rs. 41,000/- as dowry at the time of the marriage and subsequently his paying Rs. 2,000/- and Rs. 3,000/- to A.1. Soon after they came to know Seetharathuam died they went to Annapureddipalli and there the villagers told them that A.1 and A.2 were responsible for the death of Seetharathnam. Unable to bear the harassment and cruelty, Seetharatnam committed suicide. This witness claims that her sister used to inform her that A.1 and A.2 had been harassing her. Some of the villagers informed P.Ws. 1 to 5 that A.1 and A.2 killed Seetharathnam. She claims that she personally saw A. 1 and A.2 harassing Seetharathnam.
17. Examining the evidence of P.Ws. 1 to 5, it is crystal clear that the deceased was continuously harassed by A.1 and A.2 with demands of more money and they were humiliating her and teasing her by calling her a barren woman and they were repeatedly insulting her and threatening that A.1 would re-marry. There is some indication of physical cruelty also. It can safely be said that A.1 and A.2 subjected Seetharathnam to cruelty and harassment. There is ample evidence to show that even during the Dasara visit to the house of P.Ws. 2 and 3, this harassment continued. Obviously it must have continued after their return to Annapureddipalli till the date of the suicide on 27-11-1988. What exactly transpired during that period is a matter within the exclusive knowledge of the two accused and the deceased. There is no evidence on that particular aspect. But judging the circumstances in the normal course, the harassment and cruelty must have increased, because there were signs of injuries caused by beating on the dead body as noticed at the time of the inquest. All the ingredients of an offence under Section 304-B I.P.C. are fully satisfied in this case. It should also be remembered that all the ingredients of an offence under Section 498-A I.P.C. are fully satisfied. There is proof of the husband and the mother-in-law subjecting the woman to cruelty and this harassment and cruelty was with a view to coerce her or persons related to her to meet the unlawful demands for money. Of course, there is the evidence to show that they were also harassing on the ground that she was barren.
18. When we examine the evidence with reference to the offence under Section 306 I.P.C., abetment of suicide we find that in this case, the only thing that has been established is that Seetharathnam committed suicide. There is no evidence about the appellants abetting her to commit suicide. It is certain that the continued harassment and cruelty meted out to her has driven her to commit suicide. In such a case, the offence comes within the ambit of Section 304-B I.P.C. As rightly contended by the Appellants’ advocate and frankly conceded by the Public Prosecutor, the Trial Court should have convicted the accused for an offence under Sections 498-A I.P.C. and 304-B I.P.C. which is the alternative charge under the second charge. The Assistant Sessions Judge committed a mistake in convicting the accused for an offence under Section 306 I.P.C.
19. If we look at Sections 113-A and 113-B of the Evidence Act, we find that the rebuttable presumptions raised under both these Sections come into play on the facts of this face. As regards the offence under Section 498-A I.P.C., on the basis of the facts established by the evidence as the suicide was committed within a period of 7 years from the date of her marriage and as her husband and mother-in-law had subjected her to cruelty, the Court can presume that such suicide had been abetted by her husband or by such relative of her husband. It is the duty of the accused to rebut the presumption raised under Section 113-A of the Evidence Act. Similarly under Section 113-B of the Evidence Act, it is open to the Court to prove on the facts established in this case that the dowry death was caused by the accused. There is ample evidence to show that soon before her death, the woman had been subjected to cruelty and harassment in connection with demand for dowry.
20. Mr. Rama Rao relied upon various decisions in support of his arguments to show that in this case, the convictions recorded by the trial Judge are not sustainable. I shall briefly refer to those decisions and indicate how they are not applicable in the present case.
21. Chanchal Kumari v. Union Territory, Chandigarh, , lays down the principle that unless there is dependable evidence of actual abetment of the victim committing suicide, the accused are entitled to be acquitted of the charge under Section 306 I.P.C. In the particular facts of that case, the Court found that there is no evidence of abetment. On the other hand, there are certain important and innate circumstances which completely destroyed the theory of abetment to commit suicide. After the so-called complaint by the victim about illtreatment and harassment and demand for money, she wrote letters to her husband and accused which were almost love-letters and which indicated that there was no trace of her being harassed or teased by her husband and in-laws. The only witness, who spoke about their beating the deceased, never mentioned this in the first information and nobody else spoke about it and only 1-1/2 months after the occurrence, he started speaking about such incident. Accordingly the Court found that the accused are entitled to be acquitted of the charge Under Section 306 I.P.C. In the present case, there is ample evidence of harassment and ill-treatment and cruelty and there is also the presumption under Section 113-A of the Evidence Act. In such circumstances, the principles of that decision do not apply to the facts of our case.
22. Pramila Patnaik v. State of Orissa. 1992 CRI. L.J. 2385. In that particular decision, the facts revealed are that the case is one of alleged death while cooking. The entire case turned upon the contents of numerous letters which were written by the deceased to her husband. These letters covering a period of 1.6.1987 to 2.8.1988 did not give any expression either explicit or implicit alleging any pressure on her on account of dowry demands or any assault, ill-treatment, cruel behaviour and torture. The letters further indicated that she was deeply in love with her husband and she very much wanted to be with him. She felt that she was lucky in getting him as her husband. She was always requesting him to write to her more often. In her letters to the parents-in-law, she was quite respectful towards them and showed concern about the other members of the family. The letters also indicated that she was feeling a little unhappy because she was not able to visit her parents regularly and she was unable to join her husband wherever he was posted. She was happy on the birth of her son, but felt completely shattered on the death of the child. She also felt most unhappy about the medical advice given to her not to conceive for about four years. In such a background, the letter dated 9.7.1988 was interpreted and the Court came to the conclusion that this letter indicates some apprehension to her life but no specific reason for it is stated. From such a letter it is not possible to presumed that she was subjected to cruelty, harassment or torture. This decision is totally distinguishable on facts. The principle of this decision has no application to the facts of our case.
23. G. Veerudu v. State of A.P. 1988 A.P.L.J. (Cri.) 179, is a decision on which Mr. Rama Rao places strong reliance. A complete reading of this judgment indicates that the learned Judge postulated five principles regarding the standard of proof under the criminal law to constitute an offence under Section 498-A I.P.C. and felt that while under the civil law the conduct of the spouse need not necessarily result in danger of life, limb or health, but a reasonable apprehension of such a danger is enough, but for an offence under Section 498-A I.P.C. such conduct, in addition to creating such apprehensions, should have the element of “wilful conduct” and the element of “mens rea.” The learned Judge analysed the facts and recorded a finding to the effect that in a case where the deceased was abused and beaten by the husband and the mother-in-law on 25.3.1986 and when she was again abused and harassed on 26.5.1986, when she committed suicide on 26th, the conduct of the accused cannot constitute “wilful conduct” which drove her to commit suicide. Reading the facts of that decision, I find that on 23-5-1986, she was ill-treated and humiliated at her parents’ house. The husband did not allow the wife to take her food. After he had taken food, he compelled her to come away immediately with him in the auto and during the journey in the auto, he pressed the neck of the deceased and when she protested, he slapped her. After reaching the house, the husband complained to his mother that at the time of the meals, proper courtesy was not shown to him in the house of in-laws. Then both of them abused the deceased. On the next morning at 4 a.m., when the deceased went to the ground-floor to bring water from the common tap, the mother-in-law abused her in filthy language and questioned her if she was talking with her paramour on the ground-floor: When the deceased retorted how she would like to be abused in the same manner, A.2 started beating her and A.1 joined his mother in heating the deceased. Both the accused snatched the child who was crying and pushed the deceased into the kitchen asking her to die. Unable to bear with the day-to-day torture, the deceased bolted the door inside, poured kerosene on herself and burnt herself. The husband broke open the door and tried to extinguish the flames. The women died on 26th itself. In such a background, the learned Judge came to the conclusion that the conduct preceding the suicide cannot be construed as wilful conduct or that it is an action with mens rea, The learned Judge refused to draw the presumption under Section 113-A of the Evidence Act and came to the conclusion that the very offence under Section 498-A I.P.C. is not proved.
24. Going through the entire judgment, I am unable to appreciate the process of reasoning adopted by the learned Judge. In my humble opinion, taking into consideration the sequence of events that took place, it is a strong case where a presumption under Section 113-A of the Evidence Act should be invoked, and the suicide is the direct result of the immediately preceding conduct of the accused. I am unable to agree with the conclusion of the learned Judge that only the offence of beating on 25th night and 26th morning was established and that they should be convicted only for an offence under Section 323 I.P.C. Going to the gamut of facts and the process of reasoning adopted by the learned Judge, I am unable to persuade myself to follow this single Judge’s decision. In my opinion, it is somewhat revolting to the human conscience.
25. Shyama Devi v. State of W.B., 1987 Cri. L.J. 1163, deals with a case of a highly sensitive young girl who felt that she would prefer death to doing the domestic shares in the house of her in-laws. The Court found that there is absolutely no independent evidence to established any harassment or illtreatment or cruelty. The girl, who was newly married felt that she was being given rotten Chapathis and that she was compelled to work till mid-night because her parents did not supply the tape-recorder, washing-machine etc. In paragraph 32 onwards, the learned Judge summarised the entire material evidence and observed as follows :
“Admittedly there was no physical torture by assault at any time. That has never been alleged. Torture by compelling her to do domestic chores has not been established. Besides it is also very much doubtful if doing domestic duties in the absence of servants may be considered as torture, let alone torture enough to make a housewife-albeit married recently–to prefer death to get away from it all as suggested by the learned Public Prosecutor. Janaki (P.W. 4) admits that she also does domestic duties though she says that she does that according to her sweet will–whatever that may mean. Mira (P.W. 5) also says unequivocally that Usha Devi’s daughters-in-law also do domestic work and that they also wash utensils if necessary. The learned Public Prosecutor argues that discharging servants for the purpose of compelling Rina to do their jobs is what made the whole thing tortuous. We have already disbelieved this part of the evidence of Usha Devi as it finds no mention in the F.I.R., we find it also very difficult to believe that the appellant and the members of her family, who according to Janaki (P.W. 4) are rich people, would discharge all their servants merely for the purpose of punishing Rina on her father’s inability to deliver the money and the tape-recorder.”
The Court further observed that “on 15-7-1981 Rina was alive in the evening. Did anything happen so shattering to her during the few hours in between the departure of her mother and aunt in the evening of 15.7.1981 and the early afternoon of 16.7.1981 which precipitated matter, frustrated her completely and led her to kill herself having concluded that that was the only way out of the impossible situation as urged by the learned Public Prosecutor ? There is no evidence, not even a whisper to show that. In that view of the matter the conclusion becomes inescapable that whatever might have led Rina to commit suicide it was not the treatment which she had received from the appellant.” The presumption under Section 113-A of the Evidence Act was not drawn in that case on the ground that there is no proof of the deceased being subjected to cruelty by her husband and relations. The decision is totally distinguishable on facts from the case on hand.
26. Balbir Singh v. The State of Punjab, 1987 (1) Crimes 76, is a decision which compares the ingredients of an offence under Section 498-A I.P.C. and 306 I.P.C.. On facts the Court found that no charge was framed under Section 498-A I.P.C. Having framed a charge under Section 306 I.P.C. the Court convicted the accused for an offence under Section 498-A I.P.C. on the presumption that it is the lesser offence compared to the offence under Section 306 I.P.C. The Court held that the conviction for an offence under Section 498-A I.P.C. in the absence of a charge is illegal and set it aside. The learned Counsel only relies upon a few observations in paragraph 8 of the judgment wherein the Judge observed that though the amendments introduced in the Penal Code are with the laudable object of eradicating the evil of dowry, such provisions cannot be allowed to be misused by the parents or relatives of a psychopath wife who may have chosen to end her life for reasons which may be many other than that of cruelty. The glaring reality cannot be ignored that the ugly trend of false implication with a view to harass and blackmail an innocent spouse and his relatives, is fast emerging. It is time to stop this unhealthy trend which results in unnecessary misery and torture to numerous affected persons.
27. It is true that, of late, there are a few instances of false implication taking advantage of the provisions of Sections 493-A and 304-B I.P.C. and Section 113-A and 113-B of the Evidence Act. On facts the Court found that the appellant and his mother were not present at the place when she committed suicide and they actually came there later after the witnesses arrived at the scene. The legal principles enunciated in that decision are not disputed by anybody. But those principles are not applicable to the facts of our case. None of the decisions relied upon by the learned Counsel for the appellants are of any help in this particular appeal.
28. For the various reasons given above, I hold on Point No. 1 that the prosecution established the guilt of the accused for an offence under Section 498-A I.P.C. I hold on point No. 2 that the evidence on record establishes the guilt of the accused for an offence under Section 304-B I.P.C. and that the evidence does not fully establish an offence under Section 306 I.P.C.
Point No. 3
29. The further question that has to be considered in this case is whether the sentence passed by the Court can be sustained legally and if the Court find that the sentences to be illegal, what should be done ?
30. The present appeal is an appeal against conviction. The power of the Appellate Court, while dealing with an appeal from conviction, are specified in Section 386(b) Cr.P.C. Under Clause (ii) of Section 386(b) Cr.P.C., it is open to the Appellate Court to alter the finding maintaining the sentence. In the present case, the second charge was framed for an offence under Section 306 I.P.C. and in the alternative for an offence under Section 304(B) I.P.C. The accused did face the trial for both the offences. The accused cannot complain that a conviction for an offence under Section 304-B I.P.C. would prejudice them in the sense that they had no opportunity to defend themselves. In such circumstances, it is perfectly open to the Court to alter the finding and maintain the sentence. Accordingly in this case the conviction for the second charge can be altered from a finding of guilt for an offence under Section 306 I.P.C. to one of finding of guilt for an offence under Section 304-B I.P.C. But this again meets with certain technical difficulties. Under Section 306-B I.P.C. the maximum punishment is imprisonment for a term extending to the years and there is no statutory minimum punishment. But under Section 304-B I.P.C., whoever commits dowry death shall be punished with imprisonment for a term which shall not less than 7 years but which may extend to imprisonment for life. This Section contemplates a statutory minimum sentence of 7 years. Unfortunately in this particular case, the trial Judge imposed a sentence of five years R.I. under the second charge for A. 1 and a sentence of three years’ R.I. for A. 2. Both these sentence are not in strict conformity with the sentences that should and ought to have been imposed for an offence under Section 304-B I.P.C. It should be remembered that under Section 386 Cr.P.C. if there is an appeal for enhancement of sentence, it is open to the Court to enhance the sentence. But in the present case, there is no appeal for enhancement. Under the Proviso to Section 386 Cr.P.C., the sentence shall not be enhanced unless the accused had on opportunity of showing cause against such enhancement. In the present case, it is open to the Appellate Court to issue notices to the accused giving them opportunity and then enhance the sentence so as to bring it in conformity with the statutory sentence that ought to be imposed under Section 304-B I.P.C. Considering the facts of this case and taking into consideration that the offence took place in November, 1988 and we are now in April, 1994, I feel that this is not a proper case where a notice should be given for enhancement of the sentence at this belated stage. I also take into consideration the old age of A.2 a woman. I am conscious of the fact that while exercising my powers under Section 386(b)(ii) Cr.P.C. and altering the conviction another illegality is brought on record, namely, that the sentence will not be in strict conformity with the wording of the statute, namely, Section 304-B I.P.C. Considering the fact that such an illegality does not caused any prejudice to the accused and as that illegality virtually is an error in favour of the accused, I prefer to alter the finding and convict the two appellants for an offence under Section 304-B I.P.C. under the alternative charge under the second charge. The sentences imposed by the trial Judge shall be maintained. I hold Point No. 3 accordingly.
31. In the result, the convictions and the sentences of the appellants for an offence under Section 498-A I.P.C. are hereby confirmed. The convictions of the two appellants for an offence under Section 306 I.P.C. are hereby set aside and invoking my powers under Section 386(b)(ii) Cr.P.C., I alter the finding and hold that the two accused are guilty of an offence under Section 304-B I.P.C. However, the sentences awarded by the Trial Court are maintained and confirmed though they are not in strict confirmity with the statutory provisions of Section 304-B I.P.C.
32. In the result, the appeal is dismissed working the above modification.