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2007 DIGILAW 717 (MP)

Bhagwati Bai v. State of M. P.

2007-07-12

SHEELA KHANNA, SUBHASH SAMVATSAR

body2007
ORDER Sheela Khanna, J. -- 1. Challenge in this appeal is the judgment and order dated 22.10.1999 passed by Fourth Additional Sessions Judge, Gwalior in ST No.364/1995, whereby the appellants have been convicted under section 304B of IPC and sentenced to undergo life imprisonment. The appellants have also been convicted under section 498A of IPC and sentenced to undergo one year rigorous imprisonment and to pay fine of Rs.5,000/- each failing which the appellants arc further directed to suffer three months rigorous imprisonment. 2. Appellant Rajaram is father-in-law and appellant Bhagwatibai is mother-in-law of the deceased Sunita. Complainant Chotelal (PW2) is father, Gopi (PW1) is mother and Sohansingh (PW3) is Uncle of the deceased Sunita. It is not disputed that deceased Sunita died within around three years of her marriage by hanging herself and committed suicide. 3. The case of the prosecution in brief is that, on 2.7.1995, complainant Chotelal (PW2) lodged a report (Ex.P-1) at Police Station Bahodapur to the effect that the marriage of his daughter Sunita (deceased) was solemnized with Umesh (acquitted co-accused) around three years back. After marriage, Sunita gave birth to a baby child. Deceased Sunita was subjected to cruelty by the appellants for demand of dowry. Appellant Rajaram wanted to purchase a two-seater vehicle for his son Umesh and, therefore, he pressurised the deceased to bring Rs.40,000/- from her parents. Appellant Rajaram also threatened the deceased that if she will not bring Rs.40,000/- from her parents, then she will not be permitted to her in-laws house. Complainant Chotelal expressed his inability to give Rs.40,000/- before his son-in-law Umesh and sent his daughter Sunita to her in-laws house. But again the appellants turned the deceased out from their house to bring the said money. Thereafter, Sohansingh (PW3) and son of Dinanath called Umesh and pacified the matter and again sent Sunita with Umesh to her in-laws house. 4. On 2.7.1995, one Harishchandra came to complainant Chotelal and informed him that when he was passing through from in front of the house of Sunita, he saw a huge crowd there and was informed that Sunita has committed suicide. On this information, Chotelal (PW2) reached to the appellants house and saw the deceased Sunita hanging from hook (Kunde) of the roof and had died. 5. On the report (Ex.P-1) of the complainant, marg (Ex.P-10) was registered. On this information, Chotelal (PW2) reached to the appellants house and saw the deceased Sunita hanging from hook (Kunde) of the roof and had died. 5. On the report (Ex.P-1) of the complainant, marg (Ex.P-10) was registered. Sub-Inspector G.S. Parihar (PW8) reached on the spot and after issuing Safina Form (Ex.P-2), prepared inquest report (Ex.P-4) of the dead body of the deceased. The dead body was sent for post-mortem to J.A. Hospital, Gwalior. Dr. J.N. Soni (PW6) conducted autopsy on the dead body of the deceased. He found a contusion over right thigh, a contusion over left thigh, a contusion over right calf and ligature mark situated at the level of upper aspect of thyroid cartilage anteriorly 2 cm wide on right side abrasion was present. These injuries were found antimortem in nature. According to Dr. Soni, the death of the deceased was due to asphyxia as a result of hanging. He also found the uterus of the deceased enlarged and a female fetus 12 cm long present in the uterine cavity. Statements of the witnesses were recorded. After marg inquiry, case was registered against the appellants for commission of offences under sections 498A and 304B of IPC vide first information report (Ex.P12). On 5.7.1995, the husband of the deceased Umesh was arrested. On 19.9.1995, the appellants Rajaram and Bhagwatibai were arrested vide arrest memo (Ex.P-15). 6. After usual investigation, charge-sheet was filed against the appellants and their son Umesh. After committal of the case, charge under sections 304B and 498A of IPC was framed against the appellants and acquitted co-accused Umesh. Accused persons abjured their guilt and pleaded false implication. The defence of the appellants was that appellant Rajaram is a religious minded man. One Maujiram and Mukesh of the village had killed a cow and, therefore, a meeting was arranged by members of Kushwaha Community and in the meeting, it was decided not to take food in the house of Maujiram and Mukesh. But in a Daston ceremony of the son of Maujiram and Mukesh, the complainant Chotelal had gone in the feast. On this, there was a dispute between appellant Rajaram and Chotelal (PW2) and due to this complainant Chotelal became inimical with the appellants. Deceased Sunita was upset because of the said episode and, therefore, she committed suicide. 7. At the trial, prosecution has examined ten witnesses. On this, there was a dispute between appellant Rajaram and Chotelal (PW2) and due to this complainant Chotelal became inimical with the appellants. Deceased Sunita was upset because of the said episode and, therefore, she committed suicide. 7. At the trial, prosecution has examined ten witnesses. In defence, a prosecution witness Anil Sharma (PW9) was called for further cross-examination by the appellants. After conclusion of the trial and hearing the arguments of both the sides, learned trial Court has held that prosecution has failed to prove that the deceased was subjected to cruelty by her husband Umesh for demand of dowry and, therefore, acquitted the son of the appellants Umesh from the charges levelled against him. However, the trial Court found and held that the prosecution has successfully proved that the deceased was subjected to cruelty by the appellants for demand of dowry and so, the deceased had committed suicide by hanging herself and, therefore, convicted both the appellants under sections 304B and 398A of IPC and sentenced them as mentioned earlier. Feeling aggrieved by their conviction and sentence thereon, the appellants have preferred the present appeal. 8. Shri A.K. Barna, learned counsel appearing for the appellants took us through the evidence and contended that there is no evidence that the appellants demanded dowry either before or at the time of marriage or immediately after marriage. It is submitted that the allegation that appellant Rajaram demanded Rs.40,000/- to purchase two-seater for his son after one and a half or two years of her marriage cannot be said to be a demand in connection with marriage and such demand cannot be termed as dowry demand and so the appellants cannot be convicted under section 304B of IPC. Learned counsel further submitted that there is no evidence against appellant Bhagwatibai regarding demand of Rs.40,000/- to purchase twoseater. It is argued that the only allegation against appellant Bhagwatibai is that she was not providing food to the deceased and used to beat her but this evidence is an improvement by the witnesses in the Court. He submitted that the deceased committed suicide because she was upset looking to the inimical relations between her father Chotelal with the appellants. It is argued that the only allegation against appellant Bhagwatibai is that she was not providing food to the deceased and used to beat her but this evidence is an improvement by the witnesses in the Court. He submitted that the deceased committed suicide because she was upset looking to the inimical relations between her father Chotelal with the appellants. In reply, learned public prosecutor submitted that there is clear evidence that there was demand of Rs.40,000/- by the appellants and that deceased committed suicide within three years of her marriage and died under suspicious circumstances and that she was mentally or physically tortured by the appellants to fulfill the dowry demand and so she committed suicide. Therefore, the trial Court has rightly convicted the appellants under section 304B and 398A of IPC. 9. We have gone through the evidence on record and considered the submissions of both the parties. 10. Complainant Chotelal (PW2) has admitted in para 5 of his statement that there was no demand by the appellants before marriage and at the time of marriage. He admits that there was no dispute at the time of marriage and marriage was solemnized peacefully. In para 6, he admitted that the deceased had no complaint for about one and a half or two years after her marriage, till her daughter Puja was borne and he also used to go to the Sasural of her daughter. He stated that after the daughter was borne, appellant Rajaram came to his house and told him that Sunita has given birth to a baby and now how he will maintain them. The witness stated that at that time appellant Rajaram demanded Rs.40,000/- to purchase two-seater for his son to maintain him. He states that he did not try to give Rs.40,000/- to him. Thus, as per statement of Chotelal, the appellant Rajaram for the first time demanded Rs.40,000/- to purchase two-seater for his son after one and a half or two years of the marriage of the deceased. Later on, in para 7, this witness changed his version by stating that the appellants were demanding money even before the girl was borne and they were continuously demanding the said money. Later on, in para 7, this witness changed his version by stating that the appellants were demanding money even before the girl was borne and they were continuously demanding the said money. But it is important to note that on 2.11.1996, when the statement of this witness was recorded, then in para 6 he clearly stated that the deceased did not make any complaint against the appellant for about one and a half or two years, till the girl was borne. But on that day due to shortage of time the statement of Chotelal could not be completed and next date was fixed on 15.11.1996. Then on next date on 15.11.1996, he changed his version by stating that the said demand was made from the very beginning. When his attention was drawn to his earlier statement that the deceased was all right before the girl was borne and that there was no harassment to the deceased before then he stated that before the daughter was borne the appellants did not harass the deceased much (Abhiyuktagan use) jyada pareshan nahin karte thhey), therefore earlier he has stated that the deceased was all right. It is again important to note that in his earlier statement before police (Ex.D-2) and in his report Ex.P-1), the witness has not mentioned that the appellants were harassing the deceased even before the daughter was borne. 11. Sohansingh (PW3) is real brother of complainant Chotelal. He deposed in para 7 that there was no demand by the appellants before marriage or at the time of marriage. In para 8, he states that after marriage the deceased used to come and go to her parents happily. In para 1 also he stated that the deceased was happily residing for one and a half years but after that when his daughter was borne then after 2-3 months her in-laws started demanding Rs.40,000/- to purchase auto. 12. Gopi (PW 1), the mother of the deceased states in para 3 that at the time of marriage there was no demand, nor there was any dispute and the marriage was solemnized peacefully. This witness stated that when Sunita used to come to her house then she used to tell her that Rajaram used to demand Rs.40,000/- for scooter. 12. Gopi (PW 1), the mother of the deceased states in para 3 that at the time of marriage there was no demand, nor there was any dispute and the marriage was solemnized peacefully. This witness stated that when Sunita used to come to her house then she used to tell her that Rajaram used to demand Rs.40,000/- for scooter. But this witness in her earlier statement before police (Ex.D-1) has not disclosed that demand of Rs.40,000/- was from the very beginning and that in 'A' to 'A' portion of Exhibit D-1 she expressed that around one and a half year before her death, for the first time, deceased disclosed about demand of Rs.40,000/-. 13. It is amply clear from the statement of Chotelal (PW2), his wife Gopi (PW1) and his brother Sohansingh (PW3) that neither there was any demand of dowry before marriage nor at the time of marriage and nor immediately after marriage. From the evidence, it is clear that the demand of Rs.40,000/- was made by appellant Rajararn to purchase two-seater for his son after one and a half or two years of marriage of the deceased. 14. The apex Court in the ease of Appasaheb and another v. State of Maharashtra, reported in 2007(1) Crimes 110, has held that the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. It is further held that a demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. In this case also if the demand of Rs.40,000/- has been made by appellant Rajaram after one and half or two years of marriage to purchase two-seater for his son then this demand cannot be said to be a demand relating to the marriage of the deceased and cannot be termed as dowry demand. Thus, it is not proved that the deceased was subjected to cruelty by the appellants for demand of dowry and, therefore, offence under section 304B of IPC is not proved and conviction under section 304B of IPC is not sustainable in law. 15. Thus, it is not proved that the deceased was subjected to cruelty by the appellants for demand of dowry and, therefore, offence under section 304B of IPC is not proved and conviction under section 304B of IPC is not sustainable in law. 15. However, at the same time from the version of Chotelal (PW2), Gopi (PW1) and Sohansingh (PW3), it is clear that after one and a half year when the daughter of the deceased Puja was borne, appellant Rajaram started demanding Rs.40,000/- to purchase two-seater for his son and started harassing the deceased to bring the said money from her father. To fulfill the said unlawful demand the deceased was sent to her parental house to bring the money. It has come in the evidence that the complainant Chotelal called Umesh (husband of the deceased) and expressed his inability to pay Rs.40,000/- and after pacifying the matter again sent his daughter with Umesh to her in-laws. Again deceased was sent by appellant Rajaram to bring money, but Chotelal again sent the deceased with Umesh to her in-laws. There is no reason to disbelieve this part of the evidence on record. The defence of the appellants is that one Maujiram and Mukesh had killed a cow and Kushwaha community decided not to take food in their house. But complainant Chotelal had gone in the feast of Daston ceremony of the son of Maujiram and Mukesh and on this there was dispute between Chotelal and appellants and deceased was upset because of the said episode is not at all satisfactory or reliable. If any such an incident of killing a cow by Maujiram and Mukesh had happened then this incident has no connection with the complainant Chotelal and appellants. It is not disputed that Sunita has died within three years of her marriage after hanging herself. Dr. J.N. Soni (PW6), who conducted autopsy on the dead body of the deceased has found some minor ante-mortem injuries on her body, but according to him the cause of death was asphyxia, as a result of hanging. It can safely be presumed and inferred that the deceased was harassed by appellant Rajaram to meet the unlawful demand of Rs.40,000/- On account of failure to meet the demand she was physically or mentally tortured and thus subjected to cruelty by appellant Rajaram and, therefore, she committed suicide by hanging. It can safely be presumed and inferred that the deceased was harassed by appellant Rajaram to meet the unlawful demand of Rs.40,000/- On account of failure to meet the demand she was physically or mentally tortured and thus subjected to cruelty by appellant Rajaram and, therefore, she committed suicide by hanging. Thus, there is clear and convincing evidence that the deceased was subjected to cruelty by appellant Rajaram to fulfill unlawful demand of Rs.40,000/- to purchase two-seater and thus he committed offence punishable under section 498A of IPC and that the cure treatment and harassment to the deceased led her to commit suicide and therefore, appellant Rajaram is guilty for abetting the commission of offence of suicide by the deceased, which is punishable under section 306 of IPC. 16. It is true that in this case charge under section 306 IPC was not framed by the trial Court and the charges framed against appellant Rajaram were under sections 304B and 498A of IPC. But all the facts and ingredients constituting the offence under section 306 IPC are found to have been mentioned in the statement of charges framed under section 498A and 304B of I,PC and from the cross-examination on behalf of the appellants also it is clear that appellants were well aware that allegations of cruelty to the deceased which led her to commit suicide is against the appellants, therefore, appellant Rajaram can be convicted under section 306 of IPC also and no prejudice can be said to have been caused to him. 17. In the case of K. Prema S. Rao and another v. Yadla Srinivasa Rao and others, reported in 2003(1) Crimes 62, the accused were charged under sections 304B and 498A of IPC and charge under section 306 IPC was not framed but it was found that all the facts and ingredients constituting the offence under section 306 of IPC were present and, therefore, the apex Court convicted the accused under section 306 IPC also. The apex Court in this case has held as under: "Mere omission or defect in framing charge does not disable the Criminal Court from convicting the accused for the offence which is found to have been proved on the evidence on record. The Code of Criminal Procedure has ample provisions to meet a situation like the one before us. The apex Court in this case has held as under: "Mere omission or defect in framing charge does not disable the Criminal Court from convicting the accused for the offence which is found to have been proved on the evidence on record. The Code of Criminal Procedure has ample provisions to meet a situation like the one before us. From the statement of charge framed under section 304B and in the alternative section 498A, IPC (as quoted above) it is clear that all facts and ingredients for framing charge for offence under section 306, IPC existed in the case. The mere omission on the part of the trial Judge to mention of section 306, IPC with 498A, IPC does not preclude the Court from convicting the accused for the said offence when found proved. In the alternate charge framed under section 498A of IPC, it has been clearly mentioned that the accused subjected the deceased to such cruelty and harassment as to drive her to commit suicide. The provisions of section 221 of CrPC take care of such a situation and safeguard the powers of the criminal Court to convict an accused for an offence with which he is not charged although on facts found in evidence, he could have been charged for such offence." 18. Thus, satisfactory and reliable evidence is on the record that the deceased was subjected to cruelty by appellant Rajaram, who is father-in-law and that the deceased committed suicide as she was subjected to cruelty to fulfill unlawful demand. Therefore, appellant Rajaram is found guilty and convicted for committing offences under sections 498A and 306 of IPC. 19. As far as appellant Bhagwatibai is concerned, Gopi (PW1) has stated that she was not providing food to the deceased and used to beat her. But this statement is an improved version in the Court because in her earlier statement before police (Ex.D-1) she has not stated so. Chotelal (PW2) has not stated that the deceased was not given food and was beaten by her mother-in-law. Chotelal (PW2) in para 7 of his statement deposed that when he went to Rajaram's house after the girl was borne at that time Rajaram was demanding Rs.40,000/-. But, he nowhere states that Bhagwatibai ever demanded Rs.40,000/- from him. Sohansingh (PW3) also stated in para 2 that Sunita told him that his father-in-law demanded money to purchase auto. Chotelal (PW2) in para 7 of his statement deposed that when he went to Rajaram's house after the girl was borne at that time Rajaram was demanding Rs.40,000/-. But, he nowhere states that Bhagwatibai ever demanded Rs.40,000/- from him. Sohansingh (PW3) also stated in para 2 that Sunita told him that his father-in-law demanded money to purchase auto. Thus, there is no clear, consistent and convincing evidence that Bhagwatibai also demanded Rs.40,000/- to purchase auto. There is no other evidence to show that the deceased was subjected to cruelty by appellant Bhagwatibai. Thus, her conviction under section 304B and 498A of IPC cannot be sustained. The conviction of appellant Bhagwatibai under section 304B and 498A of IPC is set aside and she is acquitted of both the charges levelled against her. 20. As far as sentence to appellant Rajaram is concerned, learned defence counsel submitted that this appellant Rajaram is undergoing sentence from the date of impugned judgment i.e. from 22.10.1999 and he is an old m.an, who has no criminal history and he is facing trial since last 12 years, therefore, lenient view be taken. The appellant started demanding this amount of Rs.40,000/- to purchase two-seater for his son. Looking to the submission and facts and circumstances of the case, eight years regorous imprisonment for offence under section 306 of IPC with fine of Rs.2,500/- and one year rigorous imprisonment with fine of Rs.2,500/- for offence under section 498A of IPC would meet the ends of justice. 21. Consequently, in view of the discussions in the foregoing paragraphs, the conviction of Rajaram under section 304B of IPC and sentence thereon is set aside but he is convicted under section 306 of IPC and sentenced to undergo eight years rigorous imprisonment and to pay fine of Rs.2,500/- and in default of payment of fine he shall further suffer three months rigorous imprisonment. His conviction under section 498A is maintained and he is sentenced to suffer one year rigorous imprisonment and to pay fine of Rs.2,500/-, in default of payment of fine he shall further suffer three months rigorous imprisonment. Both the sentences of imprisonment to run concurrently.