Judgement - Sections 304B, 306 & 498A - Dowry Death

Court: Allahabad High Court

Bench: JUSTICE Sheo Kumar Singh & Ramesh Sinha

Awadhesh Kumar Vs. State Of U.P. On 2 April 2014

Law Point:
Indian Penal Code, 1860 — Sections 304B, 306, 498A — Evidence Act, 1872 — Section 113B — Dowry Death — Abetment of suicide — Cruelty — Presumption — Ingredients of offence under Section 304B, IPC missing — No evidence to show appellant-husband of deceased abetted deceased to commit suicide as envisaged in Section 498A, IPC in order to invoke Section 306, IPC — Prosecution failed to establish any case against appellant — Conviction and sentence of appellant unsustainable and set aside.

JUDGEMENT

The present criminal appeal has been filed against the judgment and order dated 9.5.2005 passed by Additional Sessions Judge, Court No. 12, Kanpur Nagar, in S.T. No. 460 of 2002 by which the appellant has been convicted under Section 304-B, I.P.C. and sentenced to undergo life imprison­ment under Section 498A, I.P.C. to un­dergo 1 year’s rigorous imprisonment and a fine of Rs. 2,000 has been imposed on him further to undergo 3 months rigorous imprisonment, both sentences ordered to run concurrently.

2. The prosecution story in brief is that an FIR was lodged by the informant Brij Kumar Dwivedi with an allegation that his sister Aruna was married in February, 1994 to Awadesh Kumar Shukla s/o Ram Swaroop Shukla and has spent money in her marriage according to his means. The husband of Aruna namely Awadesh Kumar Shukla, Jeth Ramesh Chandra Shukla and Jethani who is the wife of Ramesh Chandra Shukla used to torture and ha­rass her for bringing less dowry. They were demanding a scooter and Rs. 50,000 in cash as dowry. It was stated by the infor­mant that his father has died in the year 1995 hence all the responsibilities of the family was on him and on account of which he could not fulfil the demand of the ac­cused.

3. It was further stated by the infor­mant that earlier he did not take any ac­tion against the accused persons as his sister used to say that the things would be in order when the time comes but the accused persons who had greed for dowry, in the night of 13.9.2000 at about 8.45 p.m. had poured kerosene oil and petrol on her and burnt her to death for want of dowry and gave no information to him. The ac­cused in order to destroy the evidence also performed her last rites. The informant received an information about her sister who has been burnt to death for want of dowry from a news item.

4. The First Information Report of the incident was registered on 19.9.2000. The investigation of the case was carried out and a charge-sheet was submitted being Exhibit Ka-13 in the Court on the basis of which the accused were put to trial. The Trial Court framed charges against the accused for offence under Sections 498A, 304B, I.P.C. who pleaded not guilty and claimed to be tried.

5. The post-mortem of the deceased was conducted on 14.9.2000 at 3.05 p.m. by PW-4 Dr. Vipul Singh, Medical Officer, who found the following antemortem in­jury on the person of the deceased, Smt. Aruna Shukla.

“Skull hair singed, superficial to deep burn all over the body except both side faces skull. Skin peeled off at places, shine of redness present.”

6. In the opinion of the doctor the cause of death is due to antemortem burn injury.

7. The prosecution in support of the case has examined eight prosecution wit­ness out of them PW-1 Brijesh Kumar Dwivedi, informant, PW-2 Sunita Dwivedi, PW-3 Km. Anupam, PW-4 Dr. Vipul Singh, Medical Officer who conducted the post-­mortem of the deceased, PW-5 R.C. Shukla, Constable at the concerned police station, PW-6 Constable Shyam Ji Singh who took the body of the deceased for post-mortem to the mortuary, PW-7 Udai Vir Singh who has conducted the Panchayatnama on the body of the deceased and PW-8 V.N. Chaturvedi who was the Investigating Of­ficer.

8. In defence the accused have exam­ined four witnesses out of which DW-1 Nawab Singh Yadav, who is the corporator and has stated that he has received the information that a woman has burnt her­self in the campus of Pani Tanki and he went to see it and thereafter he gave an information at the concerned police out­post, DW-2 Satya Narain Awasthi, DW-3 Ram Gopal Trivedi are witnesses of in­quest report and DW-4 Raj Kumar is fa­ther of accused Awadesh Kumar Shukla.

9. The accused in the statement un­der Section 313, Cr.P.C. has denied the prosecution allegations and has submit­ted that the brother and ‘sister-in-law’ (Bhabi) of the deceased have taken away her ornaments and did not return to her, on account of which the deceased has com­mitted suicide by burning herself and he has been falsely implicated in the present case by the informant, who is the brother of the deceased.

10. PW-1 Brijesh Kumar Dwivedi who is the informant of the case reiterated the prosecution story as has been narrated by him in the FIR before the Trial Court. He further deposed before the Trial Court that his sister was married on 11.5.1995 with the accused Awadesh Kumar Shukla, his father has given sufficient dowry accord­ing to his means in the marriage. After 15 days of the marriage when his sister had come to her matrimonial home then her Jeth, Ramesh Chand Shukla, Jethani Lata Shukla and husband Awadesh Kumar Shukla stated that Rs. 50,000 less has been given and scooter has also not been given by the father of the deceased. He deposed that when his sister had come to his house after the marriage then he told that her Jeth, Jethani and husband are torturing and harassing her and also beaten for bringing less dowry and de­manding Rs. 50,000 and a scooter. His sister used to come from her matrimonial home to her parent’s house and similarly her in-laws and other family members also used to visit each other house. He stated that his sister Aruna Shukla had also sent some letters to him which are marked as Exhibit Ka-1 to 3 which has been proved by him. He stated the letters are in Punjabi language which are in her writ­ing and have been signed by her sister who knew Punjabi language. He further deposed that the accused Awadesh Kumar Shukla used to reside at Barrah from the year 1999 and his brother Ramesh Shukla used to reside at Barrah-3 at the time of the incident. The witness was at Punjab and he used to work there from 12.2.2000. At about 10.00 a.m. on 17.9.2000 the ac­cused Awadesh had come to his house at Kanpur residence which is at L.I.G.-37, Gangaganj colony, her wife, sister Anupam and mother were at the house. The wife of the informant had offered break fast to the accused Awadesh but he re­fused to take it and stated that they have not been given Rs. 50,000 and a scooter for which they have to see the result and had gone away. He received an informa­tion about the incident from her wife on a phone and reached Kanpur on 14.9.2000 at 12 in the night. On 15.9.2000 he went to Akbarpur and saw that the accused were taking the dead body of the deceased on a tractor to Bhithur. He gave an application to S.S.P. after getting it type on the basis of which on 19.9.2000 the First Information Report of the incident was lodged. The said witness proved it as Exhibit-Ka-4. He further deposed that his sister was married on 11.5.1995. It was wrongly typed in the application as February, 1994. He stated that his sister was burnt to death by the accused by pouring petrol and other inflammable item as she failed to get Rs. 50,000 and a scooter in dowry and infor­mation about the incident was also not given to him.

11. PW-2 Smt. Sunita Devi who is the wife of PW-1 sister-in-law (Bhabi) of the deceased has stated that the deceased was the wife of accused Awadesh Kumar Shukla. She further repeated the prosecu­tion story as has been stated by PW-1 her husband. She deposed that on 12.9.2000 the husband of the deceased Awadesh Kumar Shukla had come to her house and asked her as to when her husband would come back on which she informed that he would come on 23.9.2000 she offered the accused for breakfast but he refused to take it and stated to her as they had not paid heed to his words for which they would see the result soon. At that time her Nanad Anupam was present in the house she also informed about the said incident to his ‘Tau’ Lal Mani. Thereafter, on 14.9.2000 she came to know from a news paper that her Nanad Aruna was done to death by the accused persons on which she informed to her husband on telephone at Punjab where he was working, she iden­tified the accused persons in the Court.

12. PW-3 Km. Anupam, younger sister of deceased, has also repeated the prosecu­tion story as has been stated by PW-1 and PW-2.

13. PW-4 Dr. Vipul Singh, the Medical Officer, has conducted the post-mortem of the deceased on 14.9.2000 at 3.05 p.m. at Ursala Hospital, Kanpur. He stated and found the ante-mortem burn injury on her body.

14. On the internal examination of the body of the deceased he found that the brain was congested, pleura was con­gested, larynx and trachea was congested. Lungs were congested, the right side of the chamber of heart full, left was found empty. In the stomach 5 water fluid was found and mucous membrane was found normal. Liver was congested. Gal bladder was half vacant. Spleen was congested. Both the kidneys were congested. Uterus was found empty, (page 119)

15. On the opinion of the doctor the cause of death was as a result of ante-mortem burn injury and further deposed that the death could not have occurred on 14.9.2000 in Ursala Hospital, Kanpur. The injuries were sufficient to cause death. He proved the post-mortem report of the deceased as Exhibit Ka-5.

16. PW-5 Constable (2630) R.C. Shukla has deposed that on 19.9.2000 he was posted as constable in the police station Naubasta and at 12.15 hours he had reg­istered an FIR on an application given by PW-1 Brijesh Kr. Dwivedi Exhibit-Ka-4 and had proved the chick FIR Exhibit Ka-6 and had also made an endorsement in the G.D. No. 33 at 12.15 on 19.9.2000 and proved the same as Exhibit Ka-7.

17. PW-6 Constable 555 Shyam Ji Singh at Police Station Naubasta deposed that on 14.9.2000 at about 1.30-1.45 p.m. he took the dead body of the deceased to the mortuary at Ursala Hospital, Kanpur for post-mortem along with constable Navneet Singh. He handed over the dead body to the doctor for post-mortem the dead body was in sealed condition.

18. PW-7, S.S.I., Uday Vir Singh has deposed that on 14.9.2000 he was posted at police out post Janta Nagar Police Sta­tion Naubasta and he has conducted the Panchayatnama of the deceased on Ursala Hospital, Kanpur. He further deposed that he conducted the Panchayatnama of the deceased in the presence of Awadesh Chandra, Kailash Chandra, Ramesh Chandra, Ram Gopal and Satya Narain Awasthi, who were appointed as Punches. The deceased has received 90% injuries. He has proved the Panchayatnama as Ex-hibit Ka-8. After post-mortem he handed over the dead body to the constables Shyam Ji Singh and Navneet Singh for taking it for post-mortem. He proved the police pa­pers as Exhibit Ka-9 to 12.

19. PW-8 Circle Officer, V.N. Chaturvedi, who has conducted the inves­tigation of the case and he has recorded the statement of the witness under Section 161, Cr.P.C. and submitted charge-sheet as Exhibit Ka-13 against the ac­cused.

20. From the side of the defence DW-1 Nawab Singh Yadav has stated before the Trial Court that from the year 1991 continuously he has been corporator from Ward No. 5 and when he was passing through Barrah-5 near Pani Tenki he re­ceived an information that a lady has burnt herself in campus of Pani Tanki. He went there and saw the lady burnt and informed at the concerned police out post and also informed the Jeth of the deceased, who was residing at Barrah-3. He identified the accused Ramesh Shukla being the Jeth of the deceased. He stated that on receiv­ing the information Ramesh Chandra had come and took the deceased to the hospi­tal after giving the information the said witness had gone to the house.

21. DW-2 Satya Narain Awasthi has deposed that he has signed the Panchayatnama of the deceased. There was a quarrel with accused Ramesh Chandra and Awadesh Kumar with the brother and Bhabi of the deceased with regard to the some ornaments. The Bhabi and brother of the deceased were quarrel­ling with the appellant and wanted the ap­pellant to give in writing that he would not demand the ornaments of deceased back, which the accused refused. The Sub-In­spector had reconciled the matter, the police handed over the dead body of the deceased to the accused persons. The last rites of the deceased were performed in Village Akbarpur. The accused has not given anything in writing that they would not asked for ornaments.

22. DW-3 Ram Gopal Trivedi has de­posed that the informant Brijesh Kumar was his distinct relative. He knew the accused Awadesh Kumar who was present in the Court. He further deposed that the sister of the informant was married to the accused Awadesh Kumar. He also deposed that he was also one of the witnesses of the Panchayatnama of the deceased. There was a quarrel between the family members of the deceased and her in-laws. Brijesh Kumar, the informant was insist­ing the accused to given in writing that they would not demand for the ornaments but the accused Awadesh Kumar refused to give such thing in writing.

23. After the post-mortem the mother-in-law of the deceased and family of the accused had gone to Village Akbarpur, there also the PW-1 asked the accused to give in writing that he would not ask for ornaments but he refused to give.

24. DW-4 Sri Raj Kumar is the father of the accused Awadesh Kumar and Ramesh Chandra, his son Awadesh Kumar used to work at Barrah-5 near Pani-ki-tanki and he used to stay along with his wife he used to visit her son’s house. He submitted that he had gone to his daugh­ter-in-law’s house and she used to com­plain that her Bhabi kept all ornaments and used to cry and also pacified her. He received the information that daughter-in-law has died at Ursala Hospital, Kanpur.

25. Heard Mr. Ved Kant Mishra, learned Counsel for the appellant and Mr. Chandrajeet Yadav, learned A.G.A.

26. It has been argued by the learned Counsel for the appellant that as per the evidence it is clear that there is no de­mand of dowry by the appellant or his fam­ily members from the family of the deceased. He submitted that the P.W.1, was living happily with the appellant who was her husband along with the two children. PW-2 Smt. Sunita Dwivedi, who is the Bhabi of the deceased and wife of the de­ceased had kept the ornaments of the de­ceased with them on account of which there was a dispute between the deceased and her sister-in-law (Bhabi) and she com­mitted suicide by burning herself on ac­count of which the said depression. He submitted that the marriage between the deceased and the appellant was solem­nized in the year 1995 and the incident has taken place on 14.9.2000 and from the wedlock two children were born. He fur­ther argued that the accused was present at the time of the Panchayatnama and the brother of the accused had taken the de­ceased to the hospital and has admitted her. He further submitted that when the deceased has burnt herself PW-1 the brother of the deceased had arrived at the house of the applicant and he was pres­suring the appellant to give in writing that he would not demand the ornaments of the deceased from either from PW-1 or PW-2 on which the appellant refused to pay heed to PW-1 and there was altercation between them and after the incident the present FIR was lodged against the appellant and his brother and Bhabi.

27. Learned AGA on the other hand has submitted that the deceased was done to death by the appellant for demand of dowry and the conviction and sentence of the appellant by the Trial Court is just proper and legal in the eyes of law. Hence the appeal of the appellant be dismissed.

28. After examining the rival conten­tions of the parties it transpires that from the evidence which has been brought on record by the prosecution there appears to be no evidence for demand of dowry by the appellant or his family members and only general and vague allegation has been levelled in the FIR that the deceased was being tortured for bringing less dowry a scooter and Rs. 50,000 cash was demanded by the appellant and his family members. Some letters have been produced by the informant which is alleged to have been written by the deceased in order to show that the deceased was be­ing tortured for demand of dowry. From the perusal of the said letters it is apparent that the said letters have been written in Punjabi language. Moreover, the letters are dated 17.1.1996, 8.8.1997 and 28.10.1998 respectively. The said letters are said to have been translated by the PW-1 from Punjabi language into Hindi language. From the letters which are Exhibit-Ka-1 to 3 shows that there was no demand of dowry made by the appellant or his family members from the parents of the deceased and only in one of the let­ters dated 17.1.1996 it has been men­tioned that the appellant is said to have been demanded Rs. 50,000 for opening a shop and in letter dated 28.10.1998 it is said that Rs. 15,000 has been demanded from the brother of the deceased which also shows that only bald allegations have been levelled and that too, it cannot be said that the said demand was for dowry, made by the appellant or his family members. The prosecution has also not sent the said let­ters for seeking the opinion of the hand writing expert in order to ascertain whether the said letters were written by the deceased Smt. Aruna Shukla or not. Hence these letters produced by the pros­ecution could not be any help in proving the charge of demand of dowry by the ap­pellant or his family members.

29. The prosecution in support of its case has produced PW-1 Brij Raj Kumar Dwivedi, the informant who is the younger brother of the deceased, PW-2 Sunita Dwivedi wife of PW-1 and the Bhabi of the deceased and PW-3 Km. Anupam who is said to have been younger sister of the deceased. The evidence of the said wit­nesses do not inspire confidence and the testimony can also not be relied upon as it has come in the prosecution evidence itself that there was some dispute be­tween the deceased and her Bhabi, PW-2 with respect to the ornaments of the de­ceased which has been retained by PW-2 and the deceased was demanding the same by PW-2 but it was not handed over when the deceased had died and at the time of the inquest the witnesses namely Satya Narain Awasthi and Ram Gopal Tripathi of the Panchayatnama who were examined as defence witnesses have also stated that there was a dispute between the deceased and PW-1 and PW-2 who were pressuring the appellant to give in writ­ing that he would not demand the orna­ments from him. Moreover, when the de­ceased received burn injuries in the in­cident on 13.9.2000 the brother of the ap­pellant had immediately taken her to UHM Hospital for medical treatment. On com­ing to know about said incident the PW-2 had also reached where the deceased was demanding her ornaments from PW-2 on 14.9.2000 at about 6.20 a.m. the deceased succumbed to her burn injuries. From the evidence of PW-1 it is evident that he was not present at the time of the incident as he was working at Punjab and when he came to know about the incident from his wife PW-2 who stated to receive about in­formation about the death of the deceased through a newspaper on 14.9.2000. It transpires PW-2 in her evidence before the Trial Court has submitted that the appel­lant had visited her house for demanding money and a scooter on 12.9.2000 and had asked whereabout her husband PW-1 who was told that he is out of station on which the appellant had threatened PW-2 for teaching them a lesson for not meeting his demand. The said evidence of PW-2 does not appears to be a reliable one as the said story appears to have been devel­oped after thought by PW-2 in order to bring same consistency in the prosecution case without there being any other material evi­dence to corroborate her such statement. Moreover, the evidence of PW-2 cannot be safely relied upon as the deceased herself was annoyed with her as she had taken ornaments and was not returning it to her on account of which the deceased has burnt herself. There is no other independent witness has come forward to support the prosecution case excepting the three prosecution witness who are highly inter­ested and partitioned witness. In this re­gard the deposition of DW-1 Nawab Singh who was the corporator of Ward No. 5 is quite relevant as he has deposed that when he came to know that one lady had got burnt in the house. He has visited the place of occurrence and had given an in­formation to the police outpost and the brother of the appellant namely, Ramesh Chandra Shukla who had arrived at the place of occurrence and had admitted the deceased at UHM Hospital.

30. DW-3 Ram Gopal Tripathi who was a witness of Panchayatnama has also de­posed that at the time of the Panchayatnama PW-1 had arrived and he was quarrelling with the appellant to give him in writing that he would not demand the ornaments from him or his wife on which altercation took place and the ap­pellant refused to give any such thing in writing. The appellant used to work as Chowkidar in an Apartment. It has came in evidence that the appellant was also present at the time of the Panchayatnama which also shows his innocence. The pros­ecution has also not place the news paper on record through which it has been stated by PW-2 Sunita Devi to have come to know about the incident. It is evident from the evidence of the prosecution that the PW-1 had arrived at soon after the incident along with his wife PW-2 and other persons and when the deceased was being taken for cremation he had started quarrelling with the appellant asking him to give in writing not to demand the ornaments of the deceased from him and when the ap­pellant failed to give anything in writing the FIR of the incident was lodged on 19.9.2000 on an application given by brother of deceased to S.S.P. on 15.9.2000 thus from the prosecution evidence it is clear that there was no demand of dowry made by the appellant or his other family members who were his elder brother and his wife.

31. Concededly, there is no evidence on record to show that the deceased was subjected to any cruelty or harassment between 1995 and 13.9.2000 the date of her death.

32. In the light of the above mentioned evidence the question which arises the consideration is whether the case under Section 304B, I.P.C. can be said to have been made out.

Section 304B of the Indian Penal Code reads as under:

“304B. Dowry death—(i) Where the death of a woman is caused by any burns or bodily injury or occurs other­wise than under normal circum­stances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called ‘dowry death’, and such husband or relative shall be deemed to have caused her death.

Explanation—For the purpose of this sub-section, “dowry” shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprison­ment for a term which shall not be less than seven years but which may ex­tend to imprisonment for life.”

A legal fiction has been created in the said provision to the effect that in the event it is established that soon before the death, the deceased was subjected to cruelty or harassment by her husband or any of his relative; for or in connection with any demand of dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death. The Parliament has also inserted Section 113B of the In­dian Evidence Act No. 43 of 1986 with effect from 1.5.1986 which reads as under:

“113.B. Presumption as to dowry death—When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cru­elty or harassment for, or in connec­tion with, any demand for dowry, the Court shall presume that such person had caused dowry death.

Explanation—For the purposes of this Section, ‘dowry death’, shall have the same meaning as in Section 304B of the Indian Penal Code (45 of 1866).”

From a conjoint reading of Section 304B of the Indian Penal Code and Section 113B of the Indian Evidence Act, it will be apparent that a presump­tion arising thereunder will operate if the prosecution is able to establish the circumstances as set out in Section 304B of the Indian Penal Code. The ingredients of the aforementioned pro­visions are—

(1) That the death of the woman caused by any burns or bodily injury or in some circumstances which is not normal; (2) Such death occurs within 7 years from the date of her marriage; (3) That the victim was subjected to cruelty or harassment by her husband or any relative of her husband; (4) Such cruelty or harassment should be for or in connection with demand of dowry; and (5) is established that such cruelty and harassment was made soon before her death.

33. The Apex Court in the case of Harjit Singh v. State of Punjab, I (2006) DMC 11 (SC)=VIII (2005) SLT 802=IV (2005) CCR 323 (SC)=(2006) 1 SCC 463, has held that the provisions of Section 304B, I.P.C. and Section 306, I.P.C. are different and distinct.

34. In the case of unnatural death of a married woman as in a case of this na­ture, the husband could be prosecuted under Section 302, Section 304B and Section 306 of the Indian Penal Code. The distinction as regards commission of an offence under one or the other provisions as mentioned hereinbefore came up for consideration before a Division Bench of this Court in Satvir Singh and Others v. State of Punjab and Another, II (2001) DMC 734 (SC)=VI (2001) SLT 803=IV (2001) CCR 75 (SC)=(2001) 8 SCC 633, wherein it was held:

“Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third is ‘at any time’ after the marriage. The third occasion may appear to be an unending period. But the crucial words are ‘in connection with the marriage of the said parties’. This means that giving or agreeing to give any prop­erty or valuable security on any of the above three stages should have been inconnection with the marriage of the parties. There can be many other in­stances for payment of money or giving property as between the’ spouses. For ex­ample, some customary payments in con­nection with birth of a child or other cer­emonies are prevalent in different soci­eties. Such payments are not enveloped within the ambit of ‘dowry’. Hence the dowry mentioned in Section 304B should be any property or valuable security given or agreed to be given in connection with the marriage.”

35. It is not enough that harassment or cruelty was caused to the woman with a demand for dowry at some time, if Section 304B is to be invoked. But it should have happened “soon before her death”. The said phrase, no doubt, is an elastic expression and can refer to a period ei­ther immediately before her death or within a few days or even a few weeks before it. But the proximity to her death is the pivot indicated by that expression. The legislative object in providing such a ra­dius of time by employing the words “soon before her death” is to emphasise the idea that her death should, in all probabilities, have been the aftermath of such cruelty or harassment. In other words, there should be a perceptible nexus between her death and the dowry related harassment or cruelty inflicted on her. If the interval elapsed between the infliction of such ha­rassment or cruelty and her death is vide the Court would be in a position to gauge that in all probabilities the harassment or cruelty would not have been the imme­diate cause of her death. It is hence for the Court to decide, on the facts and cir­cumstances of each case, whether the said interval in that particular case was sufficient to snuff its cord from the con­cept “soon before her death”.

36. In the aforementioned situation the presumption arising either under Section 304B of the Indian Penal Code or Section 113B of the Indian Evidence Act could not be invoked against the appellant. The prosecution, therefore, must be held to have failed to establish any case against the appellant herein.

37. Faced up with this situation, the learned Counsel appearing on behalf of the State relies upon a judgment the Apex Court in K. Prema S. Rao and Another v. Yadla Srinivasa Rao and Others, II (2002) DMC 776 (SC)=VI (2002) SLT 168=(2003) 1 SCC 217, wherein an observation was made in the peculiar facts and circum­stances of that case that even if the ac­cused is not found guilty for commission of an offence under Sections 304 and 304B of the Indian Penal Code, he can still be convicted under Section 306, IPC thereof.

38. Omission to frame charges under Section 306 in terms of Section 215 of the Code of Criminal Procedure may or may not result in failure of justice, or preju­dice the accused.

39. It cannot, therefore, be said that in all cases, an accused may be held guilty of commission of an offence under Section 306 of the Indian Penal Code wher­ever the prosecution fails to establish the charge against him under Section 304B thereof. Moreover, ordinarily such a plea should not be allowed to be raised for the first time before the Court unless the materials on record are such which would establish the said charge against the ac­cused. Before invoking the provisions of Section 306, IPC, it is necessary to estab­lish that (i) the deceased committed sui­cide, and (ii) she had been subjected to cruelty within the meaning of Section 498A, I.P.C.

40. Only in the event those facts are established, a presumption in terms of Section 113A of the Indian Evidence Act could be raised. In the instant case, the prosecution has not be able to prove that the deceased was subjected to cruelty within the meaning of Section 498A, I.P.C. No case that the deceased committed sui­cide was also made out.

41. In K. Prema S. Rao (supra), it was found as of fact:

“Both the Courts below have found the husband guilty of cruel treatment of his wife and as a result the wife com­mitted suicide within seven years of their marriage. On such evidence the presumption which arises under Section 113A of the Evidence Act is that the husband abetted the suicide. The word ‘cruelty’ as mentioned in the Explanation below Section 113A of the Evidence Act has been given the same meaning as contained in the Explana­tion below Section 498A, I.P.C. On the facts found, ‘the wilful’ conduct of the husband in forcing the deceased to part with her land which she had received in marriage as ‘stridhana’ and for that purpose concealing her postal mail was so cruel that she was driven to commit suicide. A case of conviction and sentence of Accused under Section 306, I.P.C. has thus clearly been made out even though his acquittal for commission of the offence of ‘dowry death’ punishable under Section 304B, IPC is not found liable to be dis­turbed.”

42. In Satvir Singh (supra), it was ob­served:

“Learned Senior Counsel submit­ted that since the word ‘cruelty’ em­ployed therein is a virtual importation of that word from Section 498A, IPC, the offence envisaged in Section 306, IPC is capable of enveloping all cases of suicide within its ambit, including dowry related suicide. According to him, the second limb of the Explana­tion to Section 498A which defines the word ‘cruelty’ is sufficient to clarify the position. That limb reads thus:

“For the purposes of this section, ‘cruelty’ means—(b) harassment of the woman where such harassment is with a view to coercing her or any per­son related to her to meet any unlaw­ful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

43. Section 306, IPC when read with Section 113A of the Evidence Act has only enabled the Court to punish a husband or his relative who subjected a woman to cru­elty (as envisaged in Section 498A, IPC) if such woman committed suicide within 7 years of her marriage. It is immaterial for Section 306, IPC whether the cruelty or harassment was caused “soon before her death” or earlier. If it was caused “soon be­fore her death” the special provision in Section 304B, IPC would be invocable, other­wise resort can be made to Section 306, IPC.

44. After assessing the evidence on record we find that there is no evidence on record to show that the deceased was subjected to cruelty treated or harassment for demand of dowry. Further it is also not established from evidence on record that such cruelty and harassment was made soon before her death. Thus out of the four basic ingredients of Section 304B, I.P.C. the two ingredients are missing in the instant case.

45. Moreover, there is also no evidence to show the appellant who is the husband of deceased has abetted the deceased to commit suicide as envisaged in Section 498A, I.P.C. in order to invoke Section 306, I.P.C.

46. In any event, no evidence has been brought on record to show that there has been any act of omission or commission on the part of the accused, before the death of the deceased to demonstrate thus the appellant was responsible for the same. The prosecution has failed to establish any case against the appellant herein.

47. Thus in view of the law laid down by the Apex Court in the case of Harjit Singh v. State of Punjab (supra), the convic­tion and sentence of the appellant cannot be sustained.

48. Hence it cannot be said that any offence under Section 304B, I.P.C. or un­der Section 306, I.P.C. is made out against the appellant hence impugned judgment and order passed by the Trial Court is hereby set aside.

49. The appellant is acquitted of the said charges. The appellant is stated to be in jail since 9.5.2005 from the date when the impugned judgment and order was passed by the Trial Court against him. He shall be released forthwith if not required in any other case.

50. The appeal stands allowed.

DISCLAIMER: The above judgement is posted for informational purpose ONLY. Printout/ Copy from this website are not admissible citation in the Court of Law. For a court admissible copy contact your advocate.

You may contact me for consultation or advice by visiting Contact Us