Ram Dayal Jaiswal v. State Of Bihar — 1995 DIGILAW 293 (PAT)

Judgment N.K.Sinha, J. 1. The sole appellant was convicted and sentenced to undergo rigorous imprisonment for ten years for the offence under Section 304-B and rigorous imprisonment for two years each for the offences under Sections 201 and 498-A of the Indian Penal Code (for short IPC) for causing the death of his wife. All the sentences were however, ordered to run concurrently by the lea rned Additional Sessions Judge by his judgment and order dated 16/17 of August, 1993 against which this appeal has been preferred. 2. Minakshi Devi alias Munni, the younger sister of Rajendra Prasad (PW 5), the informant, of Mohalla Shobhaganj within Sasaram Police Station of Rohtas District was married in March, 1988 to Ram Dayal Jaiswal (appellant) of village Punnaon of Bhagwanpur P. S. of the same district. In March, 1988, Gauna was performed and the deceased thereafter went to live in her Sasural.At the time of her marriage and Gauna, the parents of the deceased had given her ornaments, clothes and other articles such as radio and tape. Only a golden chain of 2 1/2 bhars was not given as a result of which the husband, father-in-law, mother-in-law, dewar of the deceased and their wives started scolding and physically and mentally torturing her. The deceased was even threatened she would be killed and would never be sent back to her Naihar unless the golden chain was delivered. The informant had sent Kalewa on the occasion of Holi and Rakshabandhan for her sister (deceased) through his cousin, Anil Kumar Jaiswal (PW 3). The deceased had sent a message through PW 3 for sending the golden chain. The demand, however, could not be made on account of poverty. On 13-8-1989, while the informant along with Gaya Prasad Sah (PW4) was on way to the Sasural of the deceased, they learnt that the deceased had been killed by her in-laws and the dead body had been burnt on Monday last. On the basis of a written report (Ext. 2) dated 1-10-1989 filed by the informant before the Officer-in-Charge of Bhagwanpur P. S. the police drew a formal first information report (Ext. 1) and registered a case under Section 302/201/34, IPC and Section 304-B of the Dowry Prohibition Act against the appellant and four others including his parents. After completion of investigation, the police charge sheeted five accused persons including the appellant under Sections 304-B/498-A/201/ 34, IPC. 1) and registered a case under Section 302/201/34, IPC and Section 304-B of the Dowry Prohibition Act against the appellant and four others including his parents. After completion of investigation, the police charge sheeted five accused persons including the appellant under Sections 304-B/498-A/201/ 34, IPC. All the five accused persons were put on trial on charges under Section 304(b)/34/201, IPC for causing murder of the deceased and for disappearance of her body on 25-9-1989. Eight witnesses were examined for the prosecution and nine witnesses on behalf of the defence and a number of documents were also exhibited both on behalf of the prosecution and the defence. The defence case was that the deceased died of cholera and her deadbody was cremated in due course after sending an information to that effect to her Naihar. The learned Additional Sessions Judge did not accept the defence plea that the deceased died of cholera. He, however, acquitted all the accused persons except the appellant whom he convicted and sentenced in the manner already indicated above not only for the offences under Sections 304(b) and 201, IPC for which he had been charged but also for the offence under Section 498-A, IPC. 3. Shri B. P. Pandey, learned counsel appearing for the appellant, argued that there was no legal and satisfactory evidence on the record to support the conviction of the appellant. He pointed out that it was not a case of dowry death as the deceased was subjected to torture in connection with the demand of dowry, had not been proved. Two letters of the deceased marked Exts. 3 and 3/1, were said to contain no allegation of torture insofar the husband of the deceased, namely, the appellant was concerned and the learned Additional Sessions Judge had fallen in error in acquitting four of the co-accused and then proceeding to rely on the same evidence to convict the appellant. Another infirmity pointed out in the impugned judgment is that the appellant had adduced legal and satisfactory evidence to prove that the deceased had died of cholera and the evidence including that of the doctor who had examined her while she was alive, had been brushed aside by the learned Additional Sessions Judge for no good and cogent reasons. Another infirmity pointed out in the impugned judgment is that the appellant had adduced legal and satisfactory evidence to prove that the deceased had died of cholera and the evidence including that of the doctor who had examined her while she was alive, had been brushed aside by the learned Additional Sessions Judge for no good and cogent reasons. Shri S. K. P. Sinha, learned counsel appearing on behalf of the State respondeat, however, supported the judgment and order of conviction and sentences passed against the appellant as based on facts and circumstances amply proved in course of the trial. 4. Since both the prosecution and defence had adduced evidence, some facts do not appear to be in dispute. There is no serious challenge to the facts that the deceased was married to the appellant in the year 1988 and had gone to her Sasural in 1989 after Gauna where she died on 25-9-1989. Even according to the prosecution case, the deceased died on 25-9-1989 and to that very effect is the evidence of some of the defence witnesses including Dr. Rama Shankar Singh, DW 7 who examined the deceased and issued the certificate (Ext. F) stating that the deceased was examined by him and she died of cholera on 25-9-1989. 5. There was some argument at the bar whether on the evidence adduced, the death of the deceased can be described as a dowry death. While Shri Pandey contended that on the facts and circumstances brought on the record, it was not a case of dowry death whereas Shri Sinha, counsel for the State, took the position that it was so. The prosecution, in support of its case, relies on the evidence of PW 2 Mahendra Singh, PW 3 Anil Kumar Jaiswal, PW 4 Ganga Prasad Sah, PW 5 Rajendra Prasad (informant) and PW 6, Faujdari Kuer. The other witnesses included a formal witness Lalita Prasad (PW 1), the Choukidar of the village Raghubir Dusadh (PW 8) declared hostile and Churaman Yadav (PW 9) the Police Officer who investigated the case and submitted charge-sheet. The testimony of the informant (PW 5), who is none other than the brother of the deceased, is that the Bidai ceremony had been performed as per practice at the time of the marriage of the deceased with the appellant in March, 1988 and his sister had returned to her Maika after her marriage. The testimony of the informant (PW 5), who is none other than the brother of the deceased, is that the Bidai ceremony had been performed as per practice at the time of the marriage of the deceased with the appellant in March, 1988 and his sister had returned to her Maika after her marriage. According to this witness, the appellant, his father and other family members along with some co-villagers, had come to his place at the time of Gauna. At the time of taking meals in the night a demand was made for a golden chain of 2 1/2 Bhars and when the informants party expressed their helplessness, the appellant lost his temper and threw his Thali after holding out threats. After Gauna and on the occasion of Holi and Rakshabandhan festivals, the informant sent his cousin (PW 3) and Mama (PW 4) to the Sasural of his sister with Kalewa. On return, they informed that his sister was weeping and had told them that her in-laws demanded a golden chain of 2 1/2 Bhars and assaulted her. According to the informant, they had no information about the death of the deceased and when the in, ormant had gone to her Sasural a week after the death and had made an inquiry to the said effect, the accused persons had then abused and had threatened to assault them. PW 3 testified to the fact that he had gone to the Sasural of the deceased on the occassion of Holi and Rakshabandhan festivals with Kalewa when the deceased, had told him that accused Suraj Sah, Babban Sah, Lallan Sah and Ganja Devi used to assault her and keep her starve for 2 to 3 days. According to this witness, the deceased had told him to convey the information in her Naihar otherwise they would kill her. The witness claimed to have conveyed the information to PW 5 in the Naihar of the deceased. This is supported by the evidence of PW 4 who had accompanied PW 3 to the Sasural of the deceased. He, however, included the name of the appellant among the in-laws who assaulted her and kept her starve for getting the golden chain. He . also added that the deceased had told him that if the golden chain was not given, her in-laws would kill her. He, however, included the name of the appellant among the in-laws who assaulted her and kept her starve for getting the golden chain. He . also added that the deceased had told him that if the golden chain was not given, her in-laws would kill her. Even PW 6, the mother of the deceased, has stated that her daughter had returned to her Naihar four months after the marriage and the Gauna was performed thereafter. She has supported the testimony of the informant, PW 5 that the appellant and his relations had come on the occasion of Gauna and at the time of taking food, they had, refused to do so after making a demand for a golden chain of 2 1/2 Bhars. She claims that on that occasion, both she and her son, PW 5, had expressed their inability to meet the demand as they had no means to do so. She has, however, stated that after the Gauna, she had received a letter from her daughter wherein she had mentioned that her in-laws used to assault her for fan and sewing machine. Two such letters had been received one by post and another by hand. The letter dated 23-7-1989 received by post was marked Ext. 3 and the other received through one Pradeep Kumar, was matked Ext. 3/1 is the evidence of PW 5 who claimed that both were in the hand-writing of the deceased. 6. It was argued on behalf of the appellant that it was the definite case of the prosecution that the deceased had been tortured for not getting a golden chain of 2 1/2 Bhars from her Naihar. The prosecution witnesses have stated this fact in their evidence and the story is also mentioned in the first information report. A question was also put to the appellant in his examination under Section 313 of the Code of Criminal Procedure (for short Code) that he had demanded the golden chain of 2 1/2 Bhars from the parents of the deceased and had tortured her for the same. Another question put to the appellant was that on account of the appellant not getting the golden chain that the appellant along with members of the family had killed the deceased on 25-9-1989. The appellant answered both the questions in the negative. Both the letters Exts. Another question put to the appellant was that on account of the appellant not getting the golden chain that the appellant along with members of the family had killed the deceased on 25-9-1989. The appellant answered both the questions in the negative. Both the letters Exts. 3 and 3/1 said to have been written by the deceased to the mother, however, do not mention the demand regarding the golden chain although both contain a tale of mental and physical humiliation to which the deceased was being subjected bv her inlaws. It was pointed out on behalf of the appellant that the demand of the golden chain was made long after the marriage and the prosecution case itself is that the in-laws of the appellant never agreed either directly or indirectly to give the golden chain. It was argued that even if this part of the prosecution case is accepted as proved, the allegation made would not constitute a dowry death. Section 304-B of the Indian Penal Code read as follows : "304-B. Dowry death. (1) 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 purposes 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." It was emphasised that in order to make out a case of dowry death, the prosecution must establish that the deceased was subjected to cruelty or harassment for or in connection with any demand for dowry. As mentioned in explanation to sub-section (1) dowry was to have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961. As mentioned in explanation to sub-section (1) dowry was to have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961. The definition of dowry as contained in Section 2 of the said Act after its amendment in 1985 and 1986 reads as follows : "In this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly (a) by one party to a marriage to the other party to the marriage ; (b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person ; at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mehr in the case of persons to whom the Muslim Personal Law (Shariat) applies." Thus, unless any property or valuable security is given or agreed to be given, it would not constitute dowry within the meaning of Section 304-B, IPC. The contention that the definition of the term dowry as given in Section 2 of the Act, should include a demand made by one party though the other party would not agree to pay that amount, cannot be accepted as correct as such a construction cannot be given to the said term in view of its definition in the soction itself. It may be recalled that the definite case of the prosecution is that the golden chain was demanded at the time of Gauna and the informant and his mother had expressed their helplessness in meeting the demand. Thus, learned counsel for the appellant is right in his contention that in the absence of one of the most important ingredients of the offence of committing dowry death being completely absent any offence under Section 304-B, IPC was not made out and the conviction of the appellant for the said offence could not be upheld. 7 It may be mentioned that in the letter Ext. 3/1, the deceased had written to her mother that she was being assulted by her in-laws who scoided her for not bringing tape, radio, fan and sewing machine. The letter Ext. 3/1 does not bear any date. The prosecution case is that this letter was delivered to the mother of the deceased through one Pradeep. 3/1, the deceased had written to her mother that she was being assulted by her in-laws who scoided her for not bringing tape, radio, fan and sewing machine. The letter Ext. 3/1 does not bear any date. The prosecution case is that this letter was delivered to the mother of the deceased through one Pradeep. No person by the name of Pradeep has been examined in this case to prove the aforesaid fact. The letter nowhere bears the name of sender. It was argued that ti is letter Ext. 3/1 was produced for the first time during the deposition of PW 5 who proved it. In any view of the matter, no much importance can be attached to the statement of the letter that the deceased was being tortured for not bringing radio, tape, fan and sewing machine because of the definite case of the prosecution witnesses that the deceased had complained to PW 3 and 4 when they visited her place that she was, being tortured for not bringing the golden chain. Neither in the first information report in the evidence of any prosecution witness, there is any suggestion that the deceased was being tortured for not bring radio, tape, fan and sewing machine. No question regarding the aforesaid demand was put to the appellant in his examination under Section 313 of the Code. Moreover, the genuiness of the letter Ext. 3/1, itself in doubt in view of the circumstances attending its production in the court for the first time. 8. However, the letter marked Ext. 3 said to have been written by the deceased to her mother is an Inland letter mentioning 23-7-1989 as the date of the letter. The Inland letter is addressed in the name of Late father of the deceased and mentions the name of the Mohalla correctly. The name of the sender is also mentioned which happens to be the deceased. The letter was written only two months prior to the date on which the deceased is said to have died in her Sasural. The letter contains a description of the agony through which the deceased was passing her days in the Sasural. The letter, however, does not make any mention of the demand of dowry. It cantains no reference to the demand of golden chain or radio, tape, fan and sewing machine. The letter contains a description of the agony through which the deceased was passing her days in the Sasural. The letter, however, does not make any mention of the demand of dowry. It cantains no reference to the demand of golden chain or radio, tape, fan and sewing machine. It also contains a reference in favour of the husband that is the appellant. The deceased had mentioned that she used to quarrel with her husband for taking her to her Naihar and her husband was willing to reach her provided the mother wrote a letter to that effect in case she had no man to spare for the same. However, in another part of the letter, the deceased had categorically mentioned that she was being assaulted by the people which obviously referred to her in-laws and if th e Contents of the letter are read as a whole, it does contain an allegation that even her husband had assaulted her in such manner that her hand and feet had swallen. The letter also contains reference to the appellant where he appears to have endorsed the suspicion of his brother against the character of the deceased and it was in connection with the said suspicion that the allegation that the husband had also assaulted her was made. There is no reason to doubt the genuineness of the letter notwithstanding the defence suggestion to PW 5 in the cross-examination that the letter was not in the hand-writing of the deceased. There is nothing on the record to indicate that any attempt was made by the defence to get the hand-writing of the letter compared with the admitted hand-writing of the deceased and hence, the mere defence suggestion challenging the genuineness of the letter is hardly of any significance. 9. It is the admitted position that the deceased was a young lady who died in her Sasural within 1 1/2 years of her marriage. There is no evidence that prior to her marriage and immediately after the marriage. She was suffering from any serious ailment which would cause her premature death. There is no dispute that she died in her Sasural on the date in question. The defence case is that the deceased died of chatera. This was the suggestion given to the PWs in the cross-examination and some of the defence witnesses have also made such a claim. There is no dispute that she died in her Sasural on the date in question. The defence case is that the deceased died of chatera. This was the suggestion given to the PWs in the cross-examination and some of the defence witnesses have also made such a claim. The defence examined DWs 4, 5, 6 and 7 to prove that the deceased died of cholera. DW 4 lives in the P.O. village and claims that he learnt about the death of the deceased at about 2.30 p.m. Reconceded that he did not know 6ince then the condition of the deceased had deteriorated. If his evidence is to be believed, the dead body was cremated in the village at 3 p.m. The cremation ground, according to this witness, was less than 1/2 km. away and the people had returned within half an hour. An important admission made by this witness in his cross-examination was that he endorsed his statement before the police that the in-laws of the deceased had informed him that the deceased suffered from diarrhoea and vomiting during the night as a result of which she died. DW 5 happens to be the Sarpanch of the Gram Panchayat and he proved his certificate Ext. Pstating that the deceased died due to cholera on 25-9-1989. The witness claimed that the deceased died in his presence at 3 p.m. There is nothing in the testimony of DW 5 to suggest that the statement that the deceased died of cholera, was based on his personal observation. The important question is not that the deceased died at 3 p.m. which even according to the DW appears to be established, what is important is as to how she died. In my opinion, not much reliance can be placed in the testimony of DW 5 for the apparent contradiction in his testimony before the court and the statement made in a certificate, Ext. D. The certificate, Ext. D mentions that the death of the deceased took place on 25-9-1989 by 5 p.m. who had been cremated in the cremation ground of the village and that the information had been given by Suraj Sah (father of the appellant) on 26-9-1989. The certificate makes no mentions of the cause of the death including cholera that is being suggested by the witness in his evidence. DW 6 has a house contiguoas west of the house of the appellant. The certificate makes no mentions of the cause of the death including cholera that is being suggested by the witness in his evidence. DW 6 has a house contiguoas west of the house of the appellant. While claiming that the deceased died of cholera, he also mentions that a doctor had come for her treatment. There is nothing in the testimony of this witness to suggest that he had given the cause of death on the basis of his personal observation. In all probability, he may be making the statement that the deceased died of cholera on the basis of what he was told presumably by the in-laws of the deceased regarding the cause of her death. DW 7 happens to be the doctor who claims to have treated the deceased. He claimed that the deceased was suffering from cholera and she was senseless and while he was arranging for transfusion of saline water the deceased died. He also proved a certificate given in his hand-writting under his signature marked Ext. F. He claimed that he was called for treating the patient at 3 p.m. and he had reached the P. O. village at 5 p.m. In the certificate, the doctor has stated that he had treated the patient at 5 p.m. and on examination, found her suffering from serious cholera and while he was preparing to treat her by arranging for transfusion of saline water, the patient died. The testmony of the doctor as also his certificate are not worth the ink by which they have been written. On his own admission in the cross-examination, the doctor had given the medical certificate that the patient was suflering from cholera not on the basis of his medical examination but on the statement made by others. 10. It is common knowledge that a patient suffering from cholera would become senseless only after sufficient loss of fluid which produces a state known as dehydration. This is a gradual process and takes time. No witness including any witness of the neighbourhood, claims to have seen the deceased while she was in a position to speak. If the appellant or any other member of his family was serious about the treatment of the deceased, the doctor could have been sent for well in advance and not only at the defence to ttst moment. No witness including any witness of the neighbourhood, claims to have seen the deceased while she was in a position to speak. If the appellant or any other member of his family was serious about the treatment of the deceased, the doctor could have been sent for well in advance and not only at the defence to ttst moment. The evidence adduced by the prove that the deceased died of cholera, thus, lacks total credibility and the learned Additional Sessions Judge was thus, right in rejecting this part of the defence cases. 11. Another circumstance being relied upon against the appellant is that the deadbody of the deceased was d isposed of in haste without informing the Naihar people of the deceased. It is the consistent case of the informant (PW 5) that when he was on way to the Sasural of the deceased along with PW 3 and 4, he learnt from some one whom he did not know from before, that his sister (deceased) had been killed by the accused persons. When the informant and party reached at the house of the appellant, the appellants father first told him that his sister died of cholera. The appellants father subsequently told the informant that the deceased had hanged herself to death. The evidence of the informant is that on enquiry as to why the information regarding the death of the deceased was not sent to them, the accused persons are said to have abused the prosecution party and then threatened to assault them by means of lathi. Both PWs 3 and 4 have supported the testimony of the informant, PW 5 to the aforesaid effect. As against this, the defence of the appellant is that the appellant had himself conveyed the information about the death of the deceased to her Naihar. DWs 12 and 3 have supported the appellants case that on 26-9-1989, the appellant had been to the house of his brother-in-law, namely, PW 5 and had given the information to the wife of the informant regarding the death of the deceased as the informant (PW 5) had taken his mother (PW 6) to Banaras for her treatment. Learned defence counsel, in this connection, referred to the admission of the informants mother, PW 6 in the cross-examination that at the time when the news about the death was received, she had gone to Banaras. Learned defence counsel, in this connection, referred to the admission of the informants mother, PW 6 in the cross-examination that at the time when the news about the death was received, she had gone to Banaras. In my opinion, the answers given by PW 6 in her cross-examination, if read as a whole, in no way supports the appellants case that he had gone to his Sasural to inform about the death of his wife. All that PW 6 appears to have admitted, was that at the time of receiving information regarding the death of the deceased, she was at Banaras. According to the defence case, the deceased was, cremated in the after-noon on 25-9-1989 within a few hours of her death. As per the evidence of DWs 1, 2 and 3, the appellant went to the house of the deceased to inform about the death on the following day i.e. 26-9-1989. The Sasural and Naihar of the deceased were not very far from each other. The deceaeds Naihar was in Sasaram Police Station of Rohtas district whereas the appellant belonged to a place in Bhagwanpur Police Station of Bhabhua district. Both the districts are contiguous to each other and was formerly part of the same district, namely, Rohtas. Bhabua before being made a revenue district, was a Sub-division of old Rohtas district. If the deceased died in the after noon of 25-9-1989, there was no reason why the appellant and members of the family made no attempt to, convey her Naihar people who did not live far away, regarding the news of her death and wait until such time that they arrived to participate in the cremation. Even if it is believed for the sake of the argument that the appellant informed the Naihar people of the deceased about her death on the following day, such conduct was hardly consistent with the innocence of the appellant. In other words, the fact that the dead body of the deceased was cremated with unholy haste, was thus a circumstance appearing against the appellant which strongly suggested that the deceased did not died of cholera as claimed by the appellant. In other words, the fact that the dead body of the deceased was cremated with unholy haste, was thus a circumstance appearing against the appellant which strongly suggested that the deceased did not died of cholera as claimed by the appellant. If the deceased was young healthy woman with no history of any ailments, either immediately before or after the marriage and there being no evidence that she died of any such ailment including cholera, the only plausible inference that can be drawn on the basis of the facts and circumstances brought on record, in the absence of any direct evidence suggesting that the husband caused her death, was that she had committed suicide. It has to be conceded that in a case based on circumstantial evidence as the present one, there being no direct evidence that the appellant caused the death of the deceased, the only course left is to hold that the prosecution has proved that the deceased committed suicide. Such a conclusion appears to be not only reasonable but also inevitable in the facts and circumstances of the case because the deceased died in her Sasural and there was evidence that she had been ill-treated and subjected to torture by her husband and that there was also evidence that the deceased had complained about the ill-treatment and torture on account of her Naihar people in not meeting the demand of the appellant for a golden chain of 21/2 Bhars. In this connection, a presumption is raised that the suicide pf the deceased had been abetted by her husband wiih the meaning of Section 113-A of the Indian Evidence Act which provides that when the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume having regard to all other circumstances of the case that such suicide had been abetted by her husband or by such relative of her husband. The circumstances already brought on record leave no room for doubt that presumption under Section 113-A of the Indian Evidence Act that the suicide of the deceased was abetted by the deceaseds husband can be safely drawn against the appellant. The cruelty referred to in Section 113-A of the Act carries the same meaning as in Section 498-A of the Indian Penal Code wherein the explanation points that cruelty means any wailful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause gave injury or danger to life or harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlewful 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. There is not only ample but overwhelming evidence on the record that the appellant had subjected his wife to cruelty is defined in Section 498-A, IPC. 12. The question is whether the appellant who has been charged under Section 304-B, IPC can be held guilty for an offence under Section 306, IPC when no specific charge under Section 306, IPC had been framed against him. The appellant had knowledge of the evidence on the said of which an offence under Section 306, IPC was being made out against him. Since the essential circumstances, namely, the death of the deceased under suspicious circumstances in her Sasural within 11/2 years of her marriage, as also the allegation that deceased had been killed for not bring the golden chhain as dowry, having been put to the appellant in his examination under Section 313 of the Code. It is difficult to even suspect that any prejudice been caused to the appellant by not framing a charge under Section 306, IPC. In this connection, the decision of the apex Court in the case of Lakhjit Singh and other v. State of Punjab, reported in 1994 Supp (1) SCC 173, may be referred to where the Court rejected connection put forward on behalf of the appellant that since charge was for the offence punishable under Section 302, IPC the accused were not put to notice to a charge under Section 306, IPC and were thereby prejudiced. The apex Court also rejected the contention that the presumption under Section 113-A of the Indian Evidence Act could not be drawn and a conviction under Section 306, IPC could not be awarded. The apex Court, while rejecting the contention, was pleased to observe that the appellant had enough notice of the allegations which attract Section 306, IPC. 13. In the facts and cricumstances of the case, the appellant is found guilty and convicted for an offence under Section 306, IPC and is sentenced to undergo rigorous imprisonment for five years. His conviction under Section 304-B, IPC is set aside and so also the sentence of seven years rigorous imprisonment passed against him. 14. The trial Court has convicted the appellant for the offence under Section 498-A, IPC and sentenced him to undergo rigorous imprisonment for two years without framing a specific charge. As has been held by the learned Additional Sessions Judge, there is clear, cogent and circumstantial evidence on record to prove the commission of offence under Section 498-A, IPC by the appellant. The letter Ext. 3, written by the deceased and the evidence of the prosecution witnesses leave no room for doubt that the husband of the deceased, namely, the appellant, had subjected her to cruelty of such a nature as was likely to drive the woman to commit suicide. As held by the apex Court in the case of Smt. Shanti and another v. State of Haryana, reported in 1991 East Cr C 1 : AIR 1991 SC 1226 , a person charged and acquitted under Section 304-B, can be convicted under Section 498-A, IPC without charged being there, if such a case is made out. However, the apex Court observed that if a person was convicted for both the offences under Sections 304-B and 489-A, IPC no separate sentence need be awarded under Section 498-A. Since the appellant has been held guilty and convicted under Section 306, IPC relying on the presumption under Section 113-A of the Indian Evidence Act, it would be only fair and proper to maintain the conviction of the appellant for the offence under Section 489-A, IPC after setting aside the sentence of two years rigorous imprisonment passed by the trial Court and it is ordered accordingly. 15. There is no specific evidence brought on the record as to the actual role played by the appellant in disposal of the deadbody. 15. There is no specific evidence brought on the record as to the actual role played by the appellant in disposal of the deadbody. His conviction for the offence under Section 201, IPC for causing disappearance of the evidence of the offence, cannot be upheld only on the ground that in the facts and circumstances of the case, the appellant must have been one of the persons responsible for the same. The suspicion, howsoever strong, cannot take the place of proof and the conviction of the appellant under Section 201, IPC cannot, therefore, be upheld. His conviction as also the sentence of rigorous imprisonment for two years for the offence under Section 201, IPC are, therefore, set aside. 16. In the result, the appeal is dismissed subject to the modifications mentioned above. Appeal dismissed subject to modifications.