Court:JHARKHAND HIGH COURT
Bench: JUSTICE Deoki Nandan Prasad
DASRATH SAO & ORS. Vs. STATE OF BIHAR On 7 June 2001
Sections 306, 498-A — Abetment of Suicide, Cruelty : Abetment, Absence of Essential Ingredient : No Charge under Section 306, I.P.C. Framed : Section 306, I.P.C. cannot be Said to be Minor Offence in Relation to Section 304-B, I.P.C. : Trial Court Erred in Convicting Appellants under Sections 306 and 498-A, I.P.C. — Judgment of conviction and sentence set aside.
This criminal appeal is directed against the judgment of conviction dated 20.9.1995 and order of sentence dated 22.9.1995 passed by Shri Kumar Ganesh Dutt, 2nd Additional Sessions Judge, Giridih, in Sessions Trial No.114 of 1993, whereby and whereunder, the learned 2nd Additional Sessions Judge convicted the appellants under Section 498-A of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for two years and to pay a fine of Rs. 2,000/-, and in default to undergo rigorous imprisonment for six months each. The appellants were further convicted under Section 306 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for five years and also to pay a fine of Rs. 3,000/-, and in default to undergo rigorous imprisonment for one year each. However, the sentences were ordered to run consecutively.
2. The prosecution case in brief as stated is that on 7.1.1991, a First Information Report was lodged on the basis of the written information made to the Superintendent of Police, Giridih dated 1.7.1991. It is alleged by the informant that his daughter Uma Devi was married with appellant No. 3 Rajendra Kumar Sao but there was no cordial relationship with her in-laws because the accused persons were demanding more dowry. It is also alleged that the accused persons used to torture her for non-fulfilment of the demand of dowry. It is also alleged that his daughter had filed a criminal case earlier in the Court of the Chief Judicial Magistrate, Giridih being numbered 748 of 1990. The informant got information on 29.6.1991 that his daughter had hanged herself and on this information, the informant rushed to village Lotaki. He found the dead body of his daughter lying at the police station. The post-mortem was also held by a Medical Board and it was found that his daughter was murdered and it was not a case of suicide.
Accordingly, First Information Report was lodged under Section 304-B of the Indian Penal Code and Section 3/4 of the Dowry Prohibition Act. The investigation started and after completion of investigation, charge-sheet was submitted against the accused persons.
3. The appellants appeared in the Court below. Charge for the offences under Sections 304-B/34, 498-A/34 of the Indian Penal Code and Section 4 of the Dowry Prohibition Act read with Section 34 of the Indian Penal Code was framed against the appellants to which they pleaded not guilty. Witnesses were examined. After having heard from both sides and considering the evidence on record, the learned 2nd Additional Sessions Judge convicted and sentenced the appellants in the manner as stated above.
4. Learned Counsel appearing on behalf of the appellants submitted that the learned Court below has committed error in convicting the appellants as none of the independent witnesses supported the prosecution case in any manner. Except the informant (P.W. 1), not a single witness stated anything against the appellants either in respect of torturing the deceased at any point of time or for demand of dowry. It is further argued that there was no any bond executed on behalf of the appellants earlier to the instant case nor such bond has been produced by the prosecution to substantiate such allegation. It is also argued that the conviction under Section 306 of the Indian Penal Code is also not legal as no charge was framed under Section 306 of the Indian Penal Code for the said offence. It is pointed out during the course of argument that the appellant No. 2 (Mundrika Devi) died during the pendency of the appeal. Since there is no cogent evidence to substantiate the story of torturing or abetment, this judgment of conviction is fit to be set aside.
5. On the other hand, learned Additional Public Prosecutor appearing on behalf of the State contended before me that it is true that none of the independent witnesses supported the prosecution case in any manner.
6. The prosecution examined as many as 13 witnesses, of whom, P.Ws. 2, 3, 4, 6, 8, 10 and 11 have been declared hostile by the prosecution as they have not supported the prosecution case in any manner, whereas P.Ws. 5 and 7 have been tendered as they had stated nothing in support of the prosecution case.
7. P.W. 1 is the informant, father of the deceased, who claimed in his evidence that his daughter (deceased) had disclosed about the demand of a sum of Rs. 15,000/-, one T.V. and one motor-cycle but he is quite silent to say that such demand was ever made by the appellants from him. He also admitted in his examination-in-chief that his daughter committed suicide due to torture made by the appellants. According to him, there was also a Panchayati held in respect of the dispute but admittedly none of the Panchas came forward to say about the said Panchayati, if any held. He also admitted in paragraph 18 that he made them accused only on guess. Admittedly he is not the eye-witness of the occurrence and none of the villagers said anything about torturing the deceased prior to the occurrence or demanding dowry from the deceased.
8. P.W. 9 is the doctor who held post-mortem over the dead body of the deceased. He did not find any external or internal injury either anti-mortem or post-mortem except the legature mark and, according to the doctor, the cause of death was due to asphyxia, as a result of hanging. According to him, it may be a cause of suicide.
9. P.W. 12 is the Investigating Officer, who claimed to have visited the place of occurrence. According to him, the door of the said room in which the dead body as lying was found to be closed from inside. There was also one U.D. Case (sic.) and the door got opened after breaking the same. He further stated that the dead body was seen from the roof after taking away the tiles and Chati of the roof and all the matters have duly been mentioned in paragraphs 3 and 5 of the diary of U.D. Case. Though he contradicted the evidence of other witnesses but at the same time, he admitted that he had not examined the brother of the deceased who had gone to her in-laws’ house for taking her before the occurrence.
10. One defence witness has also been examined. According to him, the appellants Dasrath Sao and Rajendra Sao had been to his house on the occasion of Tilak ceremony of her younger brother Munideo Ray and they were preparing sweets at the relevant time.
11. Except P.W. 1, no any other witness has supported the prosecution case in any manner. P.W. 1, who is father of the deceased, also did not say in his chief that the appellants ever made any demand from him. Alleged case or bond, if any, has not been brought on the record, therefore, such story cannot be taken into account in absence of any documentary evidence. Thus there is nothing to show from the evidence collected that abetment was ever made by the appellants inasmuch as story of torturing the deceased prior to the occurrence has also not been established. The doctor, who held post-mortem, admittedly did not find any external or internal injury on the person of the deceased. It was incumbent upon the prosecution to establish the main ingredient of abetment which apparently has not been established. There is no corroboration of the evidence of P.W. 1 and he is also silent about torturing the deceased in his presence.
12. Abetment is essential ingredient to attract the offence under Section 306 of the Indian Penal Code which is apparently lacking in the instant case. The learned Trial Judge held in his judgment that the prosecution has been unable to prove the charge under Section 304-B/34 of the Indian Penal Code against the appellants as also the charge under Section 4 of the Dowry Prohibition Act read with Section 34 of the Indian Penal Code is also not proved and the appellants were acquitted of the charges under Section 304/34 of the Indian Penal Code and Section 4 of the Dowry Prohibition Act read with Section 34 of the Indian Penal Code. Meaning thereby the prosecution has failed to establish that soon before her death, the deceased was subjected by the appellants to cruelty or harassment for or in connection with any demand of dowry. Thus the Additional Sessions Judge erred in convicting the appellants for subjecting cruelty under Section 498-A of the Indian Penal Code. But the appellants were convicted under Section 498-A and under Section 306 of the Indian Penal Code when admittedly no charge under Section 306 of the Indian Penal Code was framed against the appellants.
13. In the case of Sangaraboina Sreenu v. State of A.P., II (1997) CCR 45 (SC)=AIR 1997 SC 3233, it was held as under :
“This appeal must succeed for the simple reason that having acquitted the appellant of the charge under Section 302, I.P.C. which was the only charge framed against him, the High Court could not have convicted him of the offence under Section 306, I.P.C. Section 306, I.P.C. cannot be said to be a minor offence in relation to an offence under Section 302, I.P.C. within the meaning of Section 222, Cr.P.C. for the two offences are of distinct and different categories. While the basic constituent of an offence under Section 302, I.P.C. is homicidal death those of Section 306, I.P.C. are suicidal death and abetment thereof.”
14. Equally in the case of Shamnsaheb M. Multtani v. State of Karnataka, I (2001) DMC 332 (SC)=I (2001) SLT 682=I (2001) CCR 172 (SC)=AIR 2001 SC 921, it was observed to this extent that the charge was framed against the accused for the offences under Sections 302, 498A and 304-B of the Indian Penal Code, whereas the accused husband was acquitted for the offences under Sections 302 and 498-A of the Indian Penal Code, but convicted for alternative charge under Section 304-B of the Indian Penal Code. However, no notice was given to the accused calling upon him to enter his defence in respect of said offence viz. Section 304-B. Thus the conviction under Section 304-B, I.P.C. is said to be unjustified as it occasioned failure of justice.
15. Likewise in the case at hand, no charge under Section 306 of the Indian Penal Code was framed and Section 306 of the Indian Penal Code cannot be said to be minor offence in relation to Section 304-B of the Indian Penal Code within the meaning of Section 222 of the Code of Criminal Procedure. There is basic constituent of an offence under Section 304-B of the Indian Penal Code as being dowry death whereas under Section 306 of the Indian Penal Code is for suicidal death and abetment thereof.
16. Having regard to the whole facts and circumstances coupled with the evidence on record, it must be held that the learned Trial Court erred in convicting the appellants under Sections 306 and 498-A of the Indian Penal Code and, as such, the judgment of conviction and order of sentence passed by the learned Trial Court is fit to be set aside. Noticing all the facts, as stated above and also seeing the legal position, as referred to above, I find that the prosecution has failed to establish the charges against the appellants beyond all reasonable doubts.
17. In the result, this appeal is allowed. The judgment of conviction and order of sentence passed by the learned Trial Court are set aside. The appellants are on bail.
They are discharged from the liabilities of their bail bonds.