JUDGMENT
Prasun Kumar Deb, J.
1. This appeal has arising out of the judgment and order dated 2.6.1992 passed the then 4th Additional Sessions Judge, Dhanbad, in Sessions Trial No. 89 of 1990 convicting the appellants under Section 304-B/34 of the Indian Penal Code and also under Section 498-A of the Indian Penal Code and then under Sections 3 and 4 of the Dowry Prohibition Act (the Act) and they have been sentenced to undergo rigorous imprisonment for 10 years under Section 304-B of the Indian Penal Code; for three years rigorous imprisonment under Section 498-A/34 of the Indian Penal Code, for six months rigorous imprisonment under Section 3 of the Act and for six years rigorous imprisonment under Section 4 of the Act read with Section 34 of the Indian Penal Code. All the sentence have been ordered to run concurrently.
2. The case arose out of the unnatural death of Manju Mandalani of which the fardbeyan was submitted by her brother Dharnidhar Mandal (P.W. 3) on 22.5.1989 at about 8.30 P.M. The fardbeyan was recorded at the house of the accused persons where Manju Mandalani was found lying dead at village Behra. The admitted position remains that Manju Mandalani was married with the accused appellant No. 1 Santosh Mandal about a year prior to the date of occurrence. According to the prosecution side, at the time of marriage, as per capacity of the parents of the deceased Manju Mandalani, dowry was given to appellant No. 1 but still after the marriage he continued demanding costly articles such as Tape Recorder, costly watch, motor-cycle etc. Tape recorder was purchased and given to the accused appellant No. 1 but his demand remained for the motor-cycle. Assurances were given from the side of the prosecution that as soon as money could be arranged, they would purchase the motor-cycle for Santosh Mandal also but on such demands, Manju Mandalani was tortured at the house of her in-laws’ by all the accused persons. Manju Mandalani when visited her father’s house after three months of her marriage, she reported that she was being taunted by abusing filthy remarks to the extent that she was coming from the begger’s house as she could not bring proper dowry. About one month prior to the occurrence, Manju Mandalani was brought to her parents’ house by the accused-appellant No. 1 and at that time also, he demanded motor-cycle. It was the case of the prosecution that always accused-appellant No. 1 was demanding something from the parents and the brothers of the deceased Manju Mandalani. About 20 days prior to the occurrence, P.W. 3, the informant, went to village Behra and during conversation Manju Mandalani told him that all the accused persons were beating her at the interval of two to three days. She also disclosed that Sakhi Mandalani was torturing her more and was instigating Santosh Mandal to assault her as Sakhi Mandalani was having illicit relationship with her husband Santosh Mandal and on one occasion, unfortunately Manju Mandalani had to found them in compromising position. Sakhi Mandalani threatened Manju Mandalani not to disclose the matter to others but perhaps she had disclosed the same and then she was mercilessly beaten and due to such assault, she became unconscious and she was treated by one Manju Mandal. On receipt of such information, P.W. 3 about ten days prior to the occurrence went to the house of the accused persons along with his father P.W. 1 and they requested to take Manju with them but then accused appellant Santosh Mandal promised and assured that he would not do such thing in future. Then on such assurance, the father of Manju Mandalani returned with a request that Manju and Santosh should visit his house at Koriatand, but Santosh replied that he was going after some days as he was to shift his shop house from the present position.
3. On 18.5.1989 P.W. 2 Amar Nath Mandal, another brother of Manju Mandalani went to village Behra to take Manju to his house but the accused Sakhi Mandalani told him that until and unless watch and motor cycle were not being given, they would not allow Manju Madalani to go of her parents’ house. It was further stated that she also threatened that if the demands were, not fulfilled then Manju Mandalani would be killed. P.W. 2 returned home but they came to know from the Mausi Sas of P.W. 3 who was residing at village Behra and other persons of that village that Manju Mandalani was being tortured severely due to non-fulfilment of dowry. On the date of occurrence i.e., on 22.5.1989, one Kartik Mandal went to village Koriatand and informed that Manju Mandalani had been killed by her in-laws and the dead body was in the house. On receipt of such information, the informant (P.W. 3) along with his father and others reached village Behra at the house of the accused persons at about 6 P.M. and found that the dead body of the Manju Madalani was lying at the Cot. Except accused Santosh Mandal, none was present in the house as the others had already fled away. Santosh Mandal begged pardon from the father of Manju Madalani that he had committed mistake but subsequently Santosh Mandal also fled away. While begging pardon, he touched the feet of the father of Manju Madalani. The informant and others present there, saw the dead body and found the mark of ligature around the dead body of the deceased. They could know that Manju was strangulated to death on account of non-fulfilment of dowry on the common intention of all the accused persons.
4. On the basis of the fardbeyan given by P.W. 3, the police registered Tundi P.S, Case No. 48/89 on the same date i.e., 22.5.1989 under Sections 498-A/302/34 of the Indian Penal Code read with Sections 3 and 4 of the Act. After investigation, the police submitted charge-sheet under the aforesaid sections against all the accused persons. The case was committed to the Court of sessions in due course and then charges were framed on 24.5.1990 against all the accused appellants under Section 302/34 of the Indian Penal Code: then under Section 304-B/34 of the Indian Penal Code and then also under Section 498-A of the Indian Penal Code and then also under Sections 3 and 4 of the Act. All the charges were framed separately. When the charges were read over and explained to the accused persons, they pleaded not guilty.
5. The case of the defence is that Manju Madalani had committed suicide and her death was suicidal one and not homicidal, the allegations of demand of dowry, torture on Manju Madalani and the illicit relationship with Sakhi Madalani has been denied as alleged from the side of the prosecution.
6. For and on behalf of the prosecution, in total 14 witnesses have been examined out of whom P.W. 1 Sadhu Mandal is the father of the deceased Manju Madalani. P.W. 2 Amar Nath Mandal and P.W. 3 Dharnidhar Mandal are the brothers of the deceased and sons of P.W. 1. P.W. 3 is also the informant in the case. P.W. 4 Dr. Vinod Kumar had performed post mortem examination over the dead body of Manju Madalani. He found no external injury on the dead body except the ligature mark 14″ × 1/2 on the upper part of the neck but the front of neck marks was above thyroid cartilages obliquely placed and units with the other and inverted V shaped fashion at the lip of right nostoid passage. On the left side and on the back of the neck, the mark was horizently placed. Knot mark was visible. The mark was superficial and like groove. On dissection, other vital parts of the body were found to be normal but congested. The stomach contained 1/3rd full with partly digested rice. On the neck, tissues under the mark were found dry, white and glistering hyoide bone, thiroid cartilage, tracheal rings were normal, mucus of tracheal were congested. The doctor opined that death was due to asphyxia as a result of pressure exerted by ligature over the neck. Possibility of hanging in absence of any external injuries could to be denied. The post-mortem report was marked as Ext. 4. Regarding the death, the doctor further reported in his own’ pen which was marked as Ext. 5. In that report, it was mentioned that the “possibility of hanging cannot be denied and hanging is suicidal unless and until it is otherwise proved.” The doctor has further opined that an unconscious victim can be hanged without causing any external or internal injury over the dead body of the deceased. Perhaps this opinion was given by the doctor on the history that due to assault Manju Madalani became unconscious before her death. In cross-examination, he stated that generally in homicidal hanging on a conscious body remained sign of strangulation, scraches, abrasion, bruises etc., but those were absent in the present case.
7. P.W. 5 Akbar Ali is a clerk in the Legal section of the Deputy Collector’s office. He has proved the formal sanction granted by the Deputy Collector regarding the prosecution under Sections 3 and 4 of the Act. P.W. 6 Nagendra Nath Mandal has supported the prosecution case but he is a hearsay witness, regarding the death but he is a witness for the demands of dowry by the appellant No. 1. The other witnesses, namely, P.W. 7 Khagendra Nath Mandal, P.W. 8 Kartik Chandra Mandal, P.W. 9 Durga Mandal, P.W. 10 Sukhdeo Mandal, P.W. 11 Bindu Mandal, P.W. 12 Hari Turi, P.W. 13 Balai Mandal and P.W. 14 Bishnu Pada Mandal are the witnesses of village Behra from where the accused persons hailed. Although it appears that they had supported the prosecution case but they denied to support it before the trial Court and they have been declared hostile and their statements made before the police under Section 161 of the Code of Criminal. Procedure were brought on record by way of cross-examination from the prosecution side, but those contradictions could not be proved the Investigating Officer of the case could not be examined.
8. For and on behalf of the defence, four witnesses have been examined. D.W. 1 Mantu Mandal is a villager of village Behra. According to the prosecution, when Manju Madalani became unconscious due to assault on her by the accused persons, this Mantu Mandal had treated her but now he has sided with the accused persons and stated that he had no knowledge about any such incident and he had never treated Manju Madalani. D.W. 2 Sudhir Mandal is also from the village Behra. He stated that no dowry was ever demanded from Manju’s parents and in the Mandal Samaj, there was no such custom prevailed. P.W. 3 Dhiren Chandra Mandal is a neighbour of the accused persons. He stated categorically that Manju Madalani had committed suicide by hanging and there was no torture on her. D.W. 4 Kali Pada Mandal has also stated that there was no demand made by the accused person from P.W. 1 and there was no torture on Manju Madalani. He also stated that no custom or system was prevailing in the Mandal Samaj of taking dowry at the time of marriage. After considering the evidence on record and the corroboration made by the vital witnesses, namely, P.Ws. 1, 2 and 3 and being supported by an independent witness P.W. 6, the learned Court below held that Manju Madalani had the unnatural death and just prior to the occurrence and soon after the marriage which solemnised about one year prior to the occurrence, there was always a demand for dowry by the accused persons and Manju Madalani had to suffer torture in the hands of the accused persons and such unnatural death is the result of the torture due to dowry and hence all the ingredients of Section 304-B of the Indian Penal Code could be proved from the prosecution side and hence convicted the accused persons as mentioned above, but they have been acquitted from the charge under Section 302/34 of the Indian Penal Code.
9. In assailing the impugned judgment, Mr. P.S. Dayal, learned Counsel appearing for and on behalf of the appellants submitted that the charges framed in the case were against the law and he had went to the extent that such framing of charges were unheard of and were unwarranted in the eye of law. His grievance was that the charges framed under Section 302/34 of the Indian Penal Code cannot analogously go with the charges under Section 304-B/34 of the Indian Penal Code. He has also brought into the notice of the Court the wordings of the charges framed in the case. According to him, such wordings did to confirm to the legality of the penal provision of the Indian Penal Code. As for example, he referred to charge No. 2 wherein it was mentioned that on the same date, same time and same place of occurrence, the accused persons had committed dowry death to Manju Madalani. It is true that the wordings might not be very happy as the learned Sessions Judge had just filled up the printed form of the charge and perhaps for that reason, proper wordings could not be put by him but still just from the from of charge it cannot be said that those have caused any prejudice to the accused persons in understanding as to under which charges they were being tried.
10. Regarding the analogous charges under Section 302/34 and that of 304-B/34 of the Indian Penal Code, there is some force in the submission of Mr. Dayal, but there was allegation that at the unconscious stage of Manju Madalani because of torture on her, a knotted rope was placed on the neck of Manju Madalani and such knot was tightened to cause her death and for that reason, charges were framed under Section 302/34 of the Indian Penal Code but there were allegations also that from the report of the post-mortem, it could be found that Manju Madalani had an unnatural death by suicide either homicidal or a suicidal one then it was necessary to frame charge under Section 304-B/34 of the Indian Penal Code. The Sessions Judge could have framed those two charges alternatively but without doing so he had framed the charges analogously. But, in my opinion, this has not caused any prejudice to the accused persons. Mr. Dayal has referred to a recent judgment of the Apex Court in Sangaraboina Sreenu v. State of Andhra Pradesh , wherein charges were framed under Section 302 of the Indian Penal Code but conviction was recorded under Section 306 of the Indian Penal Code. By referring to Section 202 of the Code of Criminal Procedure, the Hon’ble Supreme Court held that Section 306 of the Indian Penal Code cannot be said to be a minor offence in relation to an offence under Section 302 of the Indian Penal Code and as such when there is no charge under Section 306 of the Indian Penal Code and charge was only under Section 302 of the Indian Penal Code, then the conviction under Section 306 of the Indian Penal Code for suicidal death and abatement thereof was bad in the eye of law. The analogy of that judgment is not applicable in the present case. Here, the learned Sessions Judge took abundant caution to frame all the charges against the accused persons but as I have already said that the charge under Section 302/34 and that of under Section 304-B/34 of the Indian Penal Code could have been made alternatively as the ingredients of both these Sections do not confirm to Section 222 of the Code of Criminal Procedure and the ingredients are different. The accused persons had been acquitted under Section 302/34 of the Indian Penal Code and now after the conviction has been made, the accused persons are taking grievances regarding the defect in the charges but the charges framed had never been questioned earlier and the accused persons had submitted to the jurisdiction of charges. The wordings framed in the charges may not be very happy but if we read in between the lines, we cannot find that the accused persons can have any grievance of not understanding the offences for which they were being tried. In that sense, 1 do to find much force in the submission of Mr. Dayal on this score.
11. The next submission of Mr. Dayal is that the only partisan witnesses, namely, P.Ws. 1, 2 and 3 had supported the case of demand of dowry and the torture on the person of Manju Mandalani by the Accused persons and the independent witnesses have all turned hostile and did not support the prosecution case but his submission is not totally factually correct. The independent, witness (P.W. 6) has also supported the demand of dowry by the accused-appellant No. 1 and also about the torture. The hostile witnesses, as it appears from the record, are all from the village of the accused persons. Although it seems that they had supported the prosecution case before the police during the course of investigation, they have now resiled away but unfortunately as the Investigating Officer could not be examined, their statements made under Section 161 of the Code of Criminal Procedure before the Investigating Officer could not be proved by bringing on record. From the trend of the evidence of the witnesses who had supported the prosecution case it appears that they had tried their best to satisfy the demands of appellant No. 1 and other accused persons as they have stated for buying the peace of the deceased Manju Mandalani but it appears that the demand of accused-appellant No. 1 and some of the other accused had grown increased day by day.
12. A Tape-recorder was purchased and the receipt of the same has been exhibited in the case. Objection was raised from the side of the defence that when the Taperecorder was purchased then the receipt must be given to the custody of the accused-appellant No. 1 and could not remain with the prosecution party but the same objection has been turned down by the learned Court below and I find that the reasonings given by the learned Court bel6w are cogent and proper. When the brother of Manju Mandalani had purchased the Taperecorder in the name of the accused appellant No. 1 and gave it back to the accused-appellant No. 1, then the receipt might have been retained by the brother of Manju Mandalani. The veracity of such receipt has not been challenged in so many words. It is natural that the villagers of the accused persons must have mitigated in the meantime when the evidence started and to maintain the relationship with the co-villagers, they have now declined to support their earlier version supporting the prosecution case. Only because P.Ws. 1, 2 and 3 are the close relations of deceased Manju Mandalani, their evidence cannot be thrown out only for the interestedness rather the law demands that their evidence should be closely scrutinised as they are partisan witnesses. In such sort of dowry death case, generally independent evidence are not available and the prosecution had no other alternative but to rely on the evidence of the parents’ side of the victim and if their evidence inspire confidence then conviction can be passed on their evidence alone. Here in the present case, the demand of dowry since after the marriage and some days before the occurrence for non-fulfilment torture inflicted on deceased has been supported by the independent witness P.W. 6. There is no discrepancy in the evidence of P.Ws. 1, 2 and 3 in the story itself and the unnatural death of! Manju Mandalani.
13. Mr. K.K. Jhunjhunwala, appearing for and on behalf of the respondent-state by referring to the evidence of these witneses line to line and their lengthy cross-examination could convince me that their evidence do not suffer from any discrepancy or contradiction. I have closely scrutinised their evidence independently and I find that their evidence Inspire confidence.
14. Mr. Dayal, learned Counsel for the appellants then submitted that the prosecution could not be able to prove that Manju Mandalani was made to death of the accused persons and they have failed to prove the story that due to assault Manju Mandalani became unconscious and then by putting rope on her neck, she was made to death. It is true that such story could not be substantiated except that of circumstantial evidence to that effect. Doctor’s opinion is also not pointed one. He have divergent opinions and his case was that there may be two alternatives-that one by suicidal one and the other by homicidal. Mr. Dayal has referred to the evidence of D.W. 1 Mantu Mandal who was said to be treating Manju Mandalani on earlier occasion after she was tortured by the accused persons but that Mantu Mandal has not supported the prosecution case. According to Mr. Dayal, the whole prosecution case falls through because of denial by Mantu Mandal.
15. I have already stated that Mantu Mandal is a co-villager of the accused persons and for natural and obvious reasons he has become hostile to the prosecution party only to support the accused persons who are his co-villagers but when legal evidence is not there to support the prosecution case that Manju Mandalani was treated by Mantu Mandal then we must not give much stress on that point. But the fact has been established that Manju Mandalani was being tortured since after her marriage till her death because of demands of dowry. Even she was not allowed to go to her parents house just four days prior to the incident as the accused appellant Sakhi Mandalani stated that until and unless motor-cycle and costly watch are not provided, Manju Mandalani would not be allowed to leave her matrimonial home. In that view of the matter, at least we may take the position that because of such torture on Manju Mandalani, she must have committed suicide but about the suicide also, there is some doubt when it is in evidence that soon after the death, Santosh Mandal had admitted his guilt before P.Ws. 1 and 2 and begged pardon. Let us take the worst view when it has been supported by the defence that Manju Mandalani had committed suicide. Now whether commission of suicide by the victim can also come within the purview of ingredients of Section 304-B of the Indian Penal Code or not or it would go only under Section 306 of the Indian Penal Code for the purpose of abatement of commission of suicide. The conviction has been given only under Section 304-B of the Indian Penal Code and there was no charge under Section 306 of the Indian Penal Code.
16. Let us now consider the ingredients of Section 304-B of the Indian Penal Code. Essential ingredients are:
(i) The death of a woman should be caused by burns or bodily injury or otherwise than under normal circumstances.
(Emphasis supplied by me).
(ii) Such death should be occurred within seven years of her marriage.
(iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband.
(iv) Such cruelty or harassment should be for or in connection with demand of dowry.
17. In the present, case, ingredients No. (ii), (iii) and (iv) have been proved by the prosecution beyond all reasonable doubt, as already discussed. The death was caused within one year of the marriage of Manju Mandalani with accused-appellant No. 1. She was subjected to cruelty or harassment in connection with the demand of dowry by the in-laws’ especially by accused-appellant No. 1. The death was not by burns or by bodily injury then the case comes within the purview of otherwise than the normal circumstances which means that she had been subjected to unnatural death due to cruelty/harassment by the husband or her in-laws.
18. Whether suicide because of harassment and cruelty for demand of dowry shall come within the purview of Section 304-B of the Indian Penal Code or not must be construed from the intention of the Legislature. In this connection, the first report of the Law Commission in inclusion of this special section of the Indian Penal Code may be quoted:
It seems to us that the rule would fall to be applied under these clauses chiefly in such a case as this, where a person legally bound to take care of the person of another has by an illegal omission of his duty intentionally given him the opportunity, or permitted him to obtain the means of killing himself. It would apply also, we conceive, in the case of a person seeing another preparing to destroy himself, say by hanging, and allowing him to accomplish his purpose without any attempt to prevent him, if, as may be expected, the law of procedure makes it common duty incumbent upon all men to assist in preventing offences about to be committed in their presence. The intention here would be inferable from the circumstances. In the former case, collateral proof of the intention would be requisite. But we apprehend that it is active aid which is principally intended in these clauses, and to which the higher penalties are meant to be applied.
19. Thus from the intention of the Legislature, it is clear that any sort of unnatural death including that of suicide because of harassment and cruelty due to demand of dowry shall come within the purview of Section 304-B of the Indian Penal Code. In the present case, the accused-appellant No. 1 had the bounden duty being husband to take care of the person of his wife Manju Mandalani but he did not do so rather he did reverse thing against his duties and that he had hands in the unnatural death of Manju Mandalani is clear from the behaviour made by him just after the occurrence, as he begged pardon from his father-in-law touching to his feet and then fled away. Guilt consciousness of the other accused persons are also there when they were found missing from the house leaving the dead body alone. Although besides accused-appellant No. 5 Sakhi Mandalani, there is no specific evidence against the other accused appellants except that of her husband, appellant No. 1 Santosh Mandal. Thus I find no force in the submission that the evidence on record does not confirm to the ingredients of Section 304-B of the Indian Penal Code.
20. The next submission of Mr. Dayal is that the statements recorded under Section 313 of the Code of Criminal Procedure are totally bad and the circumstantial evidence coming in the evidence had not been put to the accused persons individually. His grievance is that the questions were proto-type and they were prepared earlier and then the answers were recorded. It is true that the typed questions were there in the form under Section 313 of the Code of Criminal Procedure and must have been prepared prior to taking down the statement but this alone does not take away that there was no application of mind by the learned Sessions Judge rather after going through the evidence on record, he thought it proper to prepare the questionnaire before hand and then record the answers. On going through the questions, I could find that detailed questions were put to the accused persons regarding the offence and the circumstances coming against them in the evidence. There is no much defect in the questionnaires being put to the accused persons. In this score also, I do not find any force in the submission of Mr. Dayal.
21. Now coming to the individual case of the accused appellants, it could be found from the evidence that there is direct charge/allegation and proof also thereof against the accused-appellant No. 1 regarding demand of dowry and to some extent he made extra-judicial confession also before the prosecution witnesses regarding his commission of offence by begging pardoned just after the occurrence when the dead body was lying in the house. The accused-appellant No. 1 in no way is immuned from the charges made against him, but I find that when there is conviction under Section 304-B of the Indian Penal Code, further conviction under Section 498-A of the Indian Penal Code is redundant. But his conviction under Sections 3 and 4 of the Dowry Prohibition Act is definitely proper and justified.
22. As regards accused-appellant No. 5 (Sakhi Mandalani) is concerned, there is evidence of demand of dowry. The allegation of illicit relationship of her with that of accused-appellant No. 1 was there and she took part in the torture of Manju Mandalani and, on her instigation and abatement, accused-appellant No. 1 had tortured Manju Mandalani, although there is no such specific evidence and circumstances are also meagre regarding commission of death by her on Manju Mandalani, hence her conviction under Section 304-B of the Indian Penal may not be very proper. About the other accused-appellants, I find that the charges against them cannot be proved beyond all reasonable doubt as no specific evidence is there against them regarding torture or demand of dowry. Only omnibus allegation was there regarding demand of dowry and torture. In that view of the matter, accused-appellants Nos. 2, 3 and 4 are entitled to get acquittal on benefit of doubt.
23. In the result, the conviction and sentence passed against accused-appellant No. 1 (Santosh Mandal) under Section 304-B of the Indian Penal Code and also under Sections 3 and 4 of the Dowry Prohibition Act is hereby maintained, upheld and confirmed while against the accused-appellant No. 5 Sakhi Mandalani, she is granted acquittal on benefit of doubt under Section 304-B of the Indian Penal Code and her conviction under Sections 3 and 4 of the Dowry Prohibition Act is hereby maintained, upheld and confirmed. Further the accused appellant No. 1 is acquitted of the charge under Section 498-A of the Indian Penal Code. The other accused-appellants are acquitted of all the charges on benefit of doubt. Accused-appellant No. 5 Sakhi Mandalani is also acquitted of the other charges on benefit of doubt.
24. This appeal is thus partly allowed as mentioned above. Accused-appellant No. 5 Sakhi Mandalani was granted bail while admitting this appeal vide order dated 24.6.1992. She is hereby directed to surrender before the trial Court to serve the period of sentence. The bail bond granted to her is hereby cancelled. Regarding the other accused appellants who have been granted acquittal on benefit of doubt, they are discharged from the liabilities of their bail bonds. Accused-appellant No. 1 Santosh Mandal is already in custody. He is directed to serve the remaining period of sentence, as aforesaid.