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2010 DIGILAW 336 (GUJ)

ASHABEN D/O BHURSINGH HALUJI v. STATE OF GUJARAT

2010-08-04

A.M.KAPADIA, J.C.UPADHYAYA

body2010
JUDGMENT 1. Two accused, namely Bhursingh Haluji Solanki and Ashaben, daughter of Bhursingh Solanki, came to be tried by the Ld. Addl. Sessions Judge, Fast Track Court, Banaskanthat at Palanpur in Sessions Case No. 76/2008, for the commission of offences punishable under sections 498-A and 304-B read with section 114 of the Indian Penal Code [IPC] and at the end of the trial, both came to be convicted for the aforesaid offences vide judgment and order dated 9/7/2009. So far as original accused no.1 Bhursingh is concerned, he was sentenced to undergo rigorous imprisonment [RI] for 2 years and fine of Rs.5,000/-, in default simple imprisonment [SI] for three months for the offence punishable under section 498-A read with sec. 114 of IPC and RI for 10 years for the offence punishable under section 304-B read with sec. 114 of IPC. Substantive sentence of imprisonment was ordered to run concurrently. So far as original accused no. 2 - Ashaben is concerned, she was sentenced to undergo RI for 2 years and fine of Rs.5,000/-, in default SI for three months for the offence punishable under section 498-A read with sec. 114 of IPC and RI for 07 years for the offence punishable under section 304-B read with sec. 114 of IPC. Substantive sentence of imprisonment was ordered to run concurrently. Feeling aggrieved by and dissatisfied with the impugned judgment and order rendered by the trial Court in Sessions Case No. 76/2008 on 9/7/2009 recording their conviction and the sentence, original accused no. 2 - Ashaben preferred Criminal Appeal No. 1293/2009 and original accused no. 1 - Bhursingh preferred Criminal Appeal No. 1599/2009 under section 374 of the Code of Criminal Procedure [for short 'Cr. P.C.']. 2. At the time when Criminal Appeal No. 1599/2009 came to be admitted on 9/10/2009, the coordinate bench of this Court, while admitting the appeal, directed to expedite the hearing of the appeal. Accordingly, upon receipt of the paper book pursuant to the direction issued by the coordinate bench, both these appeals arising from the same judgment and order rendered by the trial Court, came to be listed for final hearing. 3. The prosecution case, in nutshell, is that the deceased Jashiben married son of accused no. 1 Bhursingh and brother of accused no. 2 Ashaben, namely Punamsingh before about 4 years from the date of incident. 3. The prosecution case, in nutshell, is that the deceased Jashiben married son of accused no. 1 Bhursingh and brother of accused no. 2 Ashaben, namely Punamsingh before about 4 years from the date of incident. After the marriage, Jashiben went to her matrimonial home. It is the prosecution case that Jashiben was meted out with cruelty and harassment by both the accused being her father-in-law and sister-in-law as well as her husband Punamsingh and husband's younger brother Vikramsingh. It is the prosecution case that as she could not begotten child despite her 4 years' married life and that she could not bring anything from her parents, Jashiben was meted out with ill-treatment and cruelty. It is the prosecution case that before about one year from the date of the incident, Jashiben came to her parents' house and complained about the physical and mental torture caused to her by her father-in-law and sister-in-law as well as her husband and her husband's younger brother. She stayed at her parents' house. Before about 2 months from the date of the incident, father-in-law of Jashiben, namely accused no. 1 Bhursingh as well as his relatives came to the house of father of Jashiben and Jashiben was sent to her matrimonial home along with them only with a view to see that her matrimonial life continues and to save her marriage. Before about one week from the date of the incident, Amaratben, mother of Jashiben had gone to Jashiben's house at village Samdhi and even at that time Jashiben complained before her mother that she was ill-treated by her in-laws. However, at that time in order to save her family life with her husband and in-laws, Amaratben advised her daughter Jashiben to maintain peace so that her family life might not be disturbed. It is the prosecution case that thereafter, on 29/12/2007 at about 10.30 a.m., first informant Valji Adarsingh, father of Jashiben came to be informed on telephone that Jashiben had fallen in a well and had died. Thereafter, first informant Valji and his family members went to Jashiben's house at village Samdhi and they found dead-body of Jashiben lying in the well. The incident was reported by first informant Valjibhai to Gadh Police Station and his FIR was registered. 3.1. During the course of investigation, statements of material witnesses were recorded. Necessary panchnamas in presence of panchas were drawn. The incident was reported by first informant Valjibhai to Gadh Police Station and his FIR was registered. 3.1. During the course of investigation, statements of material witnesses were recorded. Necessary panchnamas in presence of panchas were drawn. P.M. Report of deceased was collected. After collecting the required material for the purpose of lodgement of charge-sheet, charge-sheet came to be filed in the Court of Ld. Judicial Magistrate First Class, Palanpur. Since the offence was exclusively triable by the Court of Sessions, Ld. Magistrate committed the case to the Court of Sessions at Palanpur, which was numbered as Sessions Case No. 76 of 2008. 3.2. The trial Court framed charge against both appellants, namely original accused no. 1 - Bhursingh and original accused no. 2 - Ashaben at exh. 5, to which they did not plead guilty and claimed to be tried. Thereupon, the prosecution examined 11 witnesses and produced required documentary evidence. After the prosecution concluded its oral evidence, Ld. Trial Judge recorded further statements of both the accused under section 313 of the Cr. P.C., and the accused in their further statements denied generally all the incriminating circumstances put to them by the trial Court and stated that they were falsely implicated in this case. After appreciating and evaluating the evidence on record and considering the submissions made on behalf of both the sides, the trial Court came to the conclusion that the prosecution successfully proved that both the accused caused cruelty and ill-treatment to deceased Jashiben on account of demand of dowry and that Jashiben committed suicide as she was meted out with cruel treatment on account of demand of dowry. The trial Court further came to the conclusion that the offence regarding dowry death is duly established since the incident occurred within 7 years of her marriage life. Ultimately, the trial Court recorded the conviction of both the accused for the offences punishable under sections 498-A and 304-B read with sec. 114 of IPC and awarded the sentence as hereinabove referred to in this judgment, which has given rise to above numbered two criminal appeals. 4. We have heard the Ld. Advocate Mr. M.C. Barot for the appellants-accused and Mr. L.B. Dabhi, Ld. APP representing respondent - State. 5. Mr. Barot, learned advocate for the appellants-accused submitted that the trial Court committed serious error in coming to the conclusion that this is a case of dowry death. 4. We have heard the Ld. Advocate Mr. M.C. Barot for the appellants-accused and Mr. L.B. Dabhi, Ld. APP representing respondent - State. 5. Mr. Barot, learned advocate for the appellants-accused submitted that the trial Court committed serious error in coming to the conclusion that this is a case of dowry death. The essential ingredients of the offence punishable under section 304-B of IPC are that the married woman was subjected to cruelty or harassment by her husband or his relatives and such cruelty and harassment was for or in connection with any demand for dowry. Mr. Barot took us through the evidence of first informant and father of deceased Jashiben, PW 2 Valjibhai Thakor and brother of the deceased Jashiben, PW 5 Jagmalji Valji as well as the evidence of mother of deceased, PW 4 Amaratben Valji and submitted that nothing is alleged that the accused ever demanded any dowry and on account of non-fulfillment of said demand, Jashiben was meted out with cruelty. Our attention was drawn to the evidence of PW 2 Valjibhai Thakor wherein in his cross-examination he has admitted that at the time of the marriage, certain articles were given to Jashiben which were accepted by her in-laws and she was sent to her matrimonial home. Our attention was also drawn to the admission in the deposition of PW 2 Valjibhai Thakor wherein he admitted that nothing was demanded by the accused from his daughter [deceased Jashiben]. Drawing our attention to the evidence of mother of deceased, namely Amaratben, it is submitted that in her evidence nothing reveals that any dowry was demanded. It is submitted that same is the situation if the evidence of other relative witnesses is considered. 5.1. Mr. Barot, Ld. Advocate for the appellants contended that in the FIR as well as in the evidence of relative witnesses, it is only alleged that Jashiben was tortured and was taunted that her father has not given anything. It is submitted that this can never be said to be due compliance of essential ingredients embodied in section 304-B of IPC. This is a vague statement and cannot lead anybody to conclude that this statement amounts to “demand” of dowry. Therefore, it is submitted that the trial Court committed serious error in recording conviction of both the accused for the offence of dowry death punishable under section 304-B of IPC. 5.2. Mr. Barot, Ld. This is a vague statement and cannot lead anybody to conclude that this statement amounts to “demand” of dowry. Therefore, it is submitted that the trial Court committed serious error in recording conviction of both the accused for the offence of dowry death punishable under section 304-B of IPC. 5.2. Mr. Barot, Ld. Advocate for the appellants further submitted that the essential ingredients contained under section 498-A of IPC cannot be said to be duly and fully proved. It is submitted that if the evidence of all the relative witnesses is considered, the same is general in nature and vague. Nothing specific comes on record regarding the cruelty and ill-treatment meted out to Jashiben. It is submitted that so far as accused no. 2 - Ashaben is concerned, as admitted by all the relative witnesses examined by the prosecution, her marriage was performed even prior to the marriage of deceased Jashiben and after marriage, Ashaben had gone to her matrimonial home, which is at Samo village. She was residing with her husband in her matrimonial house. She has three children. Thus accused no. 2 - Ashaben was not one of the family members of joint family of the accused no. 1 - Bhursingh. Therefore, it is urged that when it is admitted position that accused no. 2 - Ashaben was not residing in the same house where deceased Jashiben was residing, no question arises that she was persistently tortured by Ashaben to such an extent that Jashiben ultimately thought to end her life. It is submitted that in the FIR, over and above these two accused, allegations are made against husband of Jashiben , named Punamsingh as well as elder brother of Punamsingh, named Vikramsingh. They both were juvenile on the date of the alleged incident and, therefore, separate trial was conducted before the Juvenile Court. It is, therefore, submitted that innocent persons came to be implicated intentionally by the first informant Valjibhai Thakor to see that they are harassed. 5.3. Mr. Barot, Ld. Advocate for the appellants has assailed the basic fact that Jashiben committed suicide. It is submitted that admittedly, there was no water in the well wherein Jashiben fell. The parapit wall surrounding the well was about 1 ft. in height and, therefore, the possibility of accidental fall in the well cannot be ruled out. 5.4. To substantiate the submissions made by Mr. Barot, Ld. It is submitted that admittedly, there was no water in the well wherein Jashiben fell. The parapit wall surrounding the well was about 1 ft. in height and, therefore, the possibility of accidental fall in the well cannot be ruled out. 5.4. To substantiate the submissions made by Mr. Barot, Ld. Advocate for the appellants, reliance was placed upon the cases of D. Jayana v. State of Karnataka reported in [2009] 6 S.C.C. 575, State of Rajasthan v. Teg Bahadur reported in [2004] 13 S.C.C. 300 and Raman Kumar v. State of Punjab reported in [2009] 16 S.C.C. 35. Relying upon the above referred cases decided by Hon'ble the Apex Court, it is submitted that the offence punishable under sections 498-A and 304-B of IPC cannot be said to have been made out and resultantly both the appellants accused, therefore, deserve to be acquitted of all the charges levelled against them by allowing both these appeals. 6. Per contra, Mr. L.B. Dabhi, Ld. APP representing State of Gujarat vehemently opposed both these appeals and submitted that the trial Court rightly recorded the conviction of both the accused for the offences charged against them. The prosecution has adduced cogent, convincing and trustworthy evidence against both the accused regarding their involvement in causing physical and mental torture to deceased Jashiben and ultimately to drive her to commit suicide. It is submitted that through the evidence of parents and brother of deceased, the prosecution has successfully proved its case, but even considering the evidence of sister of the deceased, namely PW 7 Kamiben and her husband PW 6 Dhirsingh, who are residing in the same village where Jashiben was residing with her in-laws, both these witnesses categorically stated that Jashiben was subjected to physical and mental torture by her in-laws and she was taunted that she did not bring anything from her father's house. 6.1. Mr. Dabhi, Ld. APP for the State further submitted that the evidence of witnesses examined by the prosecution reveals that upon receipt of the message regarding death of Jashiben, when her parents, brother and other relatives reached to the house of Jashiben, her house was locked and the accused had left the house, dead-body of Jashiben was lying in the well. That this type of the conduct on the part of the accused reveals their criminal intention and their guilty mind. 6.2. Mr. Dabhi, Ld. That this type of the conduct on the part of the accused reveals their criminal intention and their guilty mind. 6.2. Mr. Dabhi, Ld. APP for the State further contended that by adducing cogent and convincing evidence, the prosecution has successfully established the offence of dowry death punishable under section 304-B of IPC. It is submitted that to tell a married woman that she has not brought anything from her parents and causing ill-treatment on this count, clearly suggests demand of dowry and ill-treatment on account of non-fulfillment of said demand. It is submitted that so far as accused no. 2 - Ashaben is concerned, there is ample evidence on record to come to the conclusion that she was one of the family members of joint family of the accused no. 1 Bhursingh. In her further statement recorded under sec. 313 of the Cr. P.C, not only she gave address of the village where her parents are residing, but except the defence of denial, nothing is stated by her that she was residing with her husband at village Samo. 6.3. In the above view of the matter, Mr. Dabhi, Ld. APP for the State submitted that both the accused have been rightly convicted for the offence punishable under section 498-A and 304-B of IPC. Their appeals, therefore, deserve to be dismissed. However, alternatively Mr. Dabhi, Ld. APP submitted that if at all this Court comes to the conclusion that the required ingredients of section 304-B of IPC cannot be said to have been fully and duly established, yet both the appellants-accused can be convicted for the lesser offence being abetment to suicide punishable under section 306 of IPC. It is submitted that considering the charge framed by the trial Court, even the essential ingredients of said offence punishable under section 306 of IPC have been set-forth. The prosecution duly proved that Jashiben committed suicide because of physical and mental torture meted out to her persistently by both the accused. The marriage span of Jashiben was under 7 years i.e. 4 years and, therefore, the presumption contained in section 113-A of the Evidence Act shall squarely apply in this case. Even considering the evidence of relative witnesses examined by the prosecution, soon before the incident, Jashiben was subjected to mental and physical torture at the hands of the accused. In support of his submissions, Mr. Dabhi, Ld. Even considering the evidence of relative witnesses examined by the prosecution, soon before the incident, Jashiben was subjected to mental and physical torture at the hands of the accused. In support of his submissions, Mr. Dabhi, Ld. APP relied upon cases of Dalbir Singh v. State of U.P. Reported in [2004] 5 S.C.C. 334 and Virendra Kumar v. State of U.P. Reported in 2007 AIR SCW 854. Relying upon the above referred judgments rendered by Hon'ble the Apex Court and drawing our attention to relevant provisions of Cr.P.C., namely sections 216, sub-section [2] of section 222 and section 464 of the Cr. P.C., it is submitted that on the same set of evidence, the conviction recorded by the trial Court for the offence punishable under section 304-B of IPC can be altered to one punishable under section 306 of IPC and appropriate sentence can be awarded to both the appellants, maintaining their conviction for the offence punishable under section 498-A of IPC awarded by the trial Court. 7. Since on behalf of the respondent - State, Mr. Dabhi, Ld. APP for the State, during the course of his arguments alternatively submitted to record conviction under section 306 of IPC, we called upon Mr. Barot, Ld. Advocate for the appellants to reply to the alternative submission made by Mr. Dabhi. Mr. Barot submitted that considering the evidence on record, when the essential ingredients of section 498-A of IPC have not been fully and duly proved, the question of dilusion of offence from dowry death to abetment to commit suicide may not arise as both the appellants deserve clean acquittal. However, it is submitted that so far as the judgments rendered by Hon'ble the Apex Court, relied upon by the State are concerned, the conviction can be altered from the major offence to one which is a lesser offence, but considering facts and circumstances of the instant case, there is no need to undertake that exercise and both the appeals may be allowed. 8. We have examined the record and proceedings in the context of the submissions made by rival side. 9. Before we re-appreciate, reanalyze and re-scrutinize the evidence adduced by the prosecution on record, it would be fruitful to consider the case of Teg Bahadur [supra] and the case of Raman Kumar [supra] relied upon on behalf of the appellants. 8. We have examined the record and proceedings in the context of the submissions made by rival side. 9. Before we re-appreciate, reanalyze and re-scrutinize the evidence adduced by the prosecution on record, it would be fruitful to consider the case of Teg Bahadur [supra] and the case of Raman Kumar [supra] relied upon on behalf of the appellants. Discussing the scope and ambit of offence of dowry death made punishable under section 304-B of IPC, Hon'ble the Apex Court held that the prosecution has to prove the following things:- [a] The death of the married woman was within seven years of the marriage. [b] A little prior to death, her husband or relative, on the point of demand of dowry, subjected her to cruelty or harassed her. 9.1. Thus, to bring home the charge of the offence punishable under section 304-B of IPC, the prosecution has to establish the above referred two essential ingredients. In the instant case, examining the evidence of first informant, father of Jashiben, PW 2 Valji Adarsingh and mother of deceased, PW 4 Amaratben as well as brother of deceased, PW 5 Jagmalji Valji, the prosecution has established that the marriage of Jashiben was solemnized with her husband Punamsingh before about 4 years from the date of the incident. It is pertinent to note that persons from both, complainant side and the accused side are resident of small villages and basically they are labourers and agriculturists and illiterate. Under such circumstances, there may not be the evidence of exact date of marriage. In that background, if the evidence of PW 6 Dhirsingh Manaji examined at exh. 28, who is brother-in-law of Jashiben is considered, he stated that Jashiben married prior to 20 years back. His evidence was recorded in the year 2008. So according to him, marriage of Jashiben was solemnized 20 years ago from the date of his evidence. However, about the exact age of Jashiben, there is no evidence, but her P M was performed on 29/12/2007 and in P M Report, approximate age of Jashiben is shown to be 22 years. Considering the entire evidence of all the witnesses, nothing emerges that marriage of Jashiben was child marriage. If the evidence of PW 6 Dhirsingh is considered as it stands, marriage of Jashiben might have been solemnized when she was aged about one year. Considering the entire evidence of all the witnesses, nothing emerges that marriage of Jashiben was child marriage. If the evidence of PW 6 Dhirsingh is considered as it stands, marriage of Jashiben might have been solemnized when she was aged about one year. As stated above, nothing is revealed that her marriage was child marriage. In the cross-examination of all the witnesses examined by the prosecution, there is not even such suggestion put to them by the accused. Mere fact that her husband was treated as juvenile, that does not mean that Jashiben married when she was one year of age. Under such circumstances, when her parents categorically deposed in their evidence that the marriage of Jashiben was solemnized before about 4 years from the date of the incident and the said fact virtually goes unchallenged, the trial Court rightly observed that Jashiben married her husband prior to 4 years from the date of the incident. Under such circumstances, the prosecution has successfully proved one ingredient of the offence punishable under section 304-B of IPC that the death of Jashiben was within 7 years of her marriage. 10. However, as stated above, the second essential ingredient to bring home the charge for the commission of offence punishable under section 304-B of IPC, which the prosecution is equally required to prove, is that a little prior to death of Jashiben, the accused, namely her father-in-law and sister-in-law on the point of demand of dowry, subjected her to cruelty or harassment. Under such circumstances, the prosecution has not only to establish that Jashiben was subjected to mental and physical torture and cruelty by the accused, but even the reason behind it, namely the demand of dowry. In the instant case, examining the evidence of her parents, brother, sister and brother-in-law together with the FIR exh. 19 about dowry, the only thing alleged is that Jashiben told that her in-laws taunted her that - “[in Gujarati ]“ 10.1. Thus the case of the prosecution is that Jashiben was tortured and taunted that she has not brought anything from her father's house. It is pertinent to note that nothing specific is alleged that what was the thing which her in-laws expected from Jashiben, which Jashiben was required to bring from her parents' house. Nothing is alleged that any cash amount was demanded or any ornaments or any household articles or furniture, etc. were demanded. It is pertinent to note that nothing specific is alleged that what was the thing which her in-laws expected from Jashiben, which Jashiben was required to bring from her parents' house. Nothing is alleged that any cash amount was demanded or any ornaments or any household articles or furniture, etc. were demanded. In this connection, if the evidence of first informant and father of Jashiben, PW 2 Valji is considered, in his cross-examination, he stated that at the time of marriage of Jashiben, certain articles were given to her and the same were accepted by the accused. According to him, in their community there is a custom to give something to daughter on the occasion of her marriage and accordingly, certain articles were given to Jashiben. He admitted that in their community, there is no custom of dowry. In the last paragraph of his deposition, he categorically admitted that it is true that nothing was demanded by the accused from his daughter Jashiben. In this line, if the evidence of mother of deceased, namely PW 4 Amaratben is considered, nothing emerges that any cash or ornaments or any household articles, etc., was demanded from Jashiben. The same is the situation if the evidence of her brother PW 5 Jagmalji and her sister PW 7 Kamiben or the evidence of her two brothers-in-law, namely PW 6 Dhirsingh and PW 8 Paragsingh is considered. When such is the situation, we are of the considered opinion that the second essential ingredient required to be established beyond any reasonable doubt by the prosecution to bring home the charge of the offence punishable under section 304-B of IPC, namely little prior to death of Jashiben, the accused on the point of demand of dowry subjected her to cruelty or harassment, cannot be said to have been established and the same is missing in this case. 11. In light of the above discussion, thus we are of the considered opinion that the trial Court erred in coming to the conclusion that the prosecution has successfully proved beyond any reasonable doubt the offence of dowry death punishable under section 304-B of IPC. 12. It is now necessary to consider the alternative submission made by Mr. Dabhi, Ld. 11. In light of the above discussion, thus we are of the considered opinion that the trial Court erred in coming to the conclusion that the prosecution has successfully proved beyond any reasonable doubt the offence of dowry death punishable under section 304-B of IPC. 12. It is now necessary to consider the alternative submission made by Mr. Dabhi, Ld. APP representing the State that in case this Court comes to the conclusion that the offence punishable under section 304-B of IPC is not duly and fully proved by the prosecution, then both the accused are required to be convicted for the offence punishable under section 306 of IPC. To this alternative suggestion, Mr. Barot, Ld. Advocate for the appellants - accused vehemently opposed. There is no dispute that considering the charge exh. 5 framed by the trial Court, there is no specific reference of the offence regarding abetment to commit suicide punishable under section 306 of IPC. However, if the charge exh. 5 is considered, it is clearly stated that not only the deceased was harassed by the accused on the count that she did not bring anything from her father's house, but she was meted out with physical and mental torture also on the count that she was issue-less, despite the fact that 4 years of her married life have been elapsed. In the charge, it is further specifically averred that on account of the physical and mental torture meted out to her on the two counts, namely she did not bring anything from her father's house and she had no issue, ultimately, she committed suicide by falling in the well. So factual matrix constituting the offence of abetment to commit suicide punishable under section 306 of IPC have been clearly narrated in charge Exh. 5. 13. In this respect, considering Virendra Kumar's case [supra] relied upon by Mr. Dabhi, Ld. APP, in said case before Hon'ble the Apex Court, the accused was charged only for the offence of murder punishable under sec. 302 of IPC. However, the conviction was recorded for the offence under section 306 of IPC. In said case, circumstances relatable under sec. 306 of IPC were clearly put to accused during his examination under sec. 313 of the Cr. P.C. Hon'ble the Apex Court held that conviction of accused under sec. 302 of IPC. However, the conviction was recorded for the offence under section 306 of IPC. In said case, circumstances relatable under sec. 306 of IPC were clearly put to accused during his examination under sec. 313 of the Cr. P.C. Hon'ble the Apex Court held that conviction of accused under sec. 306 of IPC was not improper considering the provisions of section 222[2] and section 464 of the Cr. P.C. 13.1. Considering Dalbir Singh's case [supra] relied upon by Mr. Dabhi, Ld. APP, in said case the accused faced charge only of the offences punishable under sections 302, 498-A and 304-B of IPC. He was convicted by the trial Court under sections 302 and 498-A, but acquitted for the charge under sec. 304-B IPC. In appeal, the High Court held that the charge u/S. 302 of IPC was not established and accordingly acquitted the accused in respect of said offence. The High Court further held that accused is guilty under section 306 of IPC for having abetted commission of suicide of his wife, but in view of the fact that no charge under section 306 of IPC was framed against him, the High Court, relying upon Sangaraboina Sreenu v. State of A.P. [1997] 5 SCC 348 held that the accused could not be convicted for the said offence. The High Court noticed that a contrary view had been taken in an earlier decision in Lakhjit Singh v. State of Punjab, 1994 Supp [1] SCC 163, but chose to rely upon the later decision having regard to the settled view that if there is conflict of opinion in two decisions of the Supreme Court rendered by Benches of equal strength, it is the later decision which has to prevail. Therefore, in view of said conflict of opinion in two decisions, Dalbir Singh's case came up for consideration before Three Judge Bench of Hon'ble the Apex Court. The Apex Court examined relevant provisions of Cr. P.C., namely sections 222[2], 216 as well as 464 of the Cr. P.C and also examined the evidence emerged from the record in said case wherein though the demand of dowry was proved, the essential ingredient, namely the marriage having taken place within 7 years could not be established. It was, therefore, held that acquittal of husband under section 304-B was proper. P.C and also examined the evidence emerged from the record in said case wherein though the demand of dowry was proved, the essential ingredient, namely the marriage having taken place within 7 years could not be established. It was, therefore, held that acquittal of husband under section 304-B was proper. However, examining the above referred conflicting decision earlier rendered by Hon'ble the Supreme Court as well as examining the case law on this point, Hon'ble the Apex Court, in paragraph 17 in that judgemnt observed as under : “17. There are a catena of decisions of this Court on the same lines and it is not necessary to burden this judgment by making reference to each one of them. Therefore, in view of Section 464 Cr.P.C., it is possible for the appellate or revisional court to convict an accused for an offence for which no charge was framed unless the court is of the opinion that a failure of justice would in fact occasion. In order to judge whether a failure of justice has been occasioned, it will be relevant to examine whether the accused was aware of the basic ingredients of the offence for which he is being convicted and whether the main facts sought to be established against him were explained to him clearly and whether he got a fair chance to defend himself. We are, therefore, of the opinion that Sangaraboina Sreenu was not correctly decided as it purports to lay down as a principle of law that where the accused is charged under Section 302 IPC, he cannot be convicted for the offence under Section 306 IPC.” 13.2. Ultimately, in the said case, examining the evidence on record, Hon'ble the Apex Court recorded conviction of the accused for the offence punishable under section 306 of IPC. 14. Now in the instant case, as stated above, except specifically mentioning section 306 of IPC in the charge, the required ingredients of said offence in light of the facts of the case, have already been narrated in the charge. The prosecution adduced evidence on the issue of cruelty to Jashiben, not only on the ground of alleged demand of dowry but also on the ground of she having no issue. In further statements recorded under section 313 of the Cr. P.C., the incriminating evidence adduced by the prosecution was brought to the notice of the accused. The prosecution adduced evidence on the issue of cruelty to Jashiben, not only on the ground of alleged demand of dowry but also on the ground of she having no issue. In further statements recorded under section 313 of the Cr. P.C., the incriminating evidence adduced by the prosecution was brought to the notice of the accused. In that view of the matter, there is nothing that mere failure to mention section 306 in the charge, the defence of the accused can be said to have been adversely prejudiced. Under such circumstances, considering the judicial pronouncements of Hon'ble the Apex Court referred to above and considering the facts and circumstances of the case, in the instant case, while acquitting accused for the offence punishable under section 304-B of IPC, the conviction can be recorded under section 306 of IPC. 15. The next question which is required to be answered is as to whether the evidence adduced by the prosecution is sufficient to record conviction of both or any of the accused for the offence punishable under section 306 of IPC. Before we deal with this aspect of the matter, the prosecution case is required to be considered qua the accused no. 2 - Ashaben Bhursingh Thakor, who has preferred Criminal Appeal No. 1293/2009. The evidence adduced by the prosecution reveals that Ashaben had already married before marriage of Jashiben was solemnized with her brother Punamsingh. Considering the evidence of mother of Jashiben, namely Amaratben, she stated that marriage of Ashaben was performed prior to marriage of her daughter Jashiben and Asha's in-laws reside at village Samo. Amaratben's evidence was recorded in the year 2008. The incident occurred in the year 2007 and Amaratben admitted that in the year 2008 when her evidence was recorded, Ashaben had a child aged about 2 years. Thus, though all the witnesses state that at the time of the incident, Ashaben was one of the family members of joint family of accused no. 1 Bhursingh, the fact is that she had already married and she had gone to her matrimonial home and she had a child aged about one year in the year 2007. Thus, though all the witnesses state that at the time of the incident, Ashaben was one of the family members of joint family of accused no. 1 Bhursingh, the fact is that she had already married and she had gone to her matrimonial home and she had a child aged about one year in the year 2007. For the offences punishable under sections 498-A as well as 306 of IPC, the prosecution has to establish that the cruelty or harassment was unabetted, incessant and persistent, as laid down in Indrasingh M. Raol v/s. State of Gujarat reported in 1999 [3] G.L.R. p. 2536. 15.1. However, Mr. Dabhi, Ld. APP for the respondent - State, drawing our attention to the statement of accused no. 2 - Ashaben, submitted that in her statement about her address, she stated as resident of village Samadhi, which is the village where her father accused no. 1 - Bhursingh resides. Therefore, it is submitted that accused no. 2 Ashaben used to reside as one of the joint family members of the family of accused no. 1 - Bhursingh where deceased Jashiben was also residing. However, merely because in her statement before the trial Court, accused no. 2 stated her village to be village Samadhi, thereby it cannot be inferred that she was permanently residing with her parents even after her marriage. The clear admissions made by the material witnesses examined by the prosecution and as considered in detail above, it is clear that her marriage was performed even one year earlier than the marriage of Jashiben and after her marriage, accused no. 2 - Ashaben had gone to village Maso where her husband was residing and at the time of the incident she was mother of a child. It is further pertinent to note that there is no evidence whatsoever on record which would reveal that the day on which the incident occurred i.e. on 29/12/2007 accused no. 2 Ashaben had come to her father's house and she was present in the house. 15.2. When such is the situation, in light of the above entire discussion, we are of the considered opinion that the prosecution failed to prove its case beyond any reasonable doubt qua the appellant accused no. 2 - Ashaben. 16. However, so far as the appellant accused no. 15.2. When such is the situation, in light of the above entire discussion, we are of the considered opinion that the prosecution failed to prove its case beyond any reasonable doubt qua the appellant accused no. 2 - Ashaben. 16. However, so far as the appellant accused no. 1 - Bhursingh, who has preferred Criminal Appeal No. 1599/2009 is concerned, he happened to be father-in-law of deceased Jashiben and admittedly he was residing in the same family with Jashiben. As stated above, according to the prosecution case and as emerged from the evidence on record, one of the grounds for causing torture and physical and mental cruelty to Jashiben was that despite the fact that her marriage was solemnized 4 years' prior to the date of incident, yet she did not conceive and she was issueless. In this regard, we have examined the evidence of her parents, brother, sister and relatives examined by the prosecution and the evidence regarding cruelty to Jashiben meted out by the accused no. 1 Bhursingh, father-in-law, is cogent, clear and consistent. It also emerges from the evidence on record that prior to about one year from the date of the incident because of the physical and mental torture, Jashiben came down to her parents' house leaving her matrimonial home. She stayed in her parents' house and just before 2 months from the date of the incident, the accused no. 1 Bhursingh and his relatives came to her parents' house and as revealed from the evidence of PW 5 Jagmalji, brother of Jashiben, the accused no. 1 - Bhursingh gave assurance to the parents of Jashiben that henceforth Jashiben would not be harassed and there would not be any occasion in future for Jashiben to complain against them and that he was taking the responsibility. It is, therefore, clear that upon such assurance given by none other than the father-in-law of Jashiben, namely accused no. 1 - Bhursingh, parents of Jashiben agreed to send Jashiben to her matrimonial home. Further more, considering the evidence of PW 4 Amaratben, mother of Jashiben, she categorically stated that just before one week from the date of the incident, she had gone to meet Jashi at her matrimonial home. She met Jashi there and at that time Jashi told her that the harassment and ill-treatment still continued and she was subjected to the same. She met Jashi there and at that time Jashi told her that the harassment and ill-treatment still continued and she was subjected to the same. At that time Jashiben also expressed her desire that her mother should take her with her. However, only with a view to see that her matrimonial life may not be spoiled, Amaratben returned back alone to her home. Thereafter, on 29/12/2007 the incident occurred. Under such circumstances, even applying the proximity test, it becomes crystal clear that soon before the incident Jashiben was subjected to physical and mental cruelty by the accused no. 1 Bhursingh. In this respect, considering section 498-A of IPC, the prosecution has successfully proved that deceased Jashiben was meted out with cruelty and ill-treatment by the accused no. 1 - Bhursingh. To constitute an offence punishable under section 498-A of IPC, it is not necessary that the cause for such cruelty or ill-treatment should only be demand of dowry. In the explanation attached to section 498-A of IPC, the meaning of word “cruelty” is assigned and it is stated that “any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health [whether mental or physical] of the woman, is cruelty”. Moreover, in that view of the matter, if the presumption contained in section 113-A of the Evidence Act is considered, it is clearly provided 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 the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. It is further explained under section 113-A of the Evidence Act that for the purpose of this section, “cruelty” shall have the same meaning as in section 498-A of IPC. 16.1. In the instant case, as stated above, the prosecution has established that the marriage span of Jashiben at the time of incident, was of four years i.e. within seven years. 16.1. In the instant case, as stated above, the prosecution has established that the marriage span of Jashiben at the time of incident, was of four years i.e. within seven years. The medical evidence adduced by the prosecution and more particularly considering the evidence of Dr. Swami PW 1 and the PM Report exh. 14, the cause of death of Jashiben is shock due to head injuries. It is pertinent to note that the evidence on record reveals that the well wherein the dead body of Jashiben was lying was in the compound of the house where she was residing. It is further pertinent to note that in the well, there was no water and, therefore, when she fell in the well, on account of sever head injury, she died. On behalf of the appellants much is said that this is a case of accidental death and not suicide. However, the evidence does not reveal that Jashiben accidentally fell in the well. Moreover, the conduct of the accused is required to be considered in the sense that when parents of Jashiben and other relatives went to the house of the accused, his house was locked. Her parents found dead body of Jashiben lying in the well. If at all Jashiben fell in the well accidentally, there was no reason for the accused to run away from his house along with other family members. On behalf of the appellants, it is submitted that Amaratben, mother of deceased, in her evidence admitted that at the relevant time, daughter of elder brother of husband of Jashiben was admitted in Patan Hospital. However, if evidence of Amaratben is considered, it is true that at the relevant time, daughter of elder brother of husband of Jashiben was admitted in Patan Hospital, but she outrightly denied the suggestion that as daughter of elder brother of husband of Jashiben was admitted in hospital and, therefore, all her family members including the accused had gone to Patan Hospital. Moreover, in further statement recorded under section 313 of the Cr. P.C., the accused no. 1 does not even orally say that his house was locked because he along with other family members had gone to Patan Hospital. Under such circumstances, we do not find any possibility of the death of Jashiben being accidental death. The trial Court was, therefore, justified in coming to the conclusion that Jashiben committed suicide. P.C., the accused no. 1 does not even orally say that his house was locked because he along with other family members had gone to Patan Hospital. Under such circumstances, we do not find any possibility of the death of Jashiben being accidental death. The trial Court was, therefore, justified in coming to the conclusion that Jashiben committed suicide. 17. In the above view of the matter, so far as appellant - accused no. 2 - Ashaben, who has preferred Criminal Appeal No. 1293/2009 is concerned, she deserves benefit of doubt. Her conviction recorded by the trial Court for the offences punishable under sections 498-A and 304-B of IPC is required to be set aside. Considering the facts and circumstances of the case, when her conviction for the offence punishable under section 498-A of IPC is not sustainable and the fact that since before marriage of Jashiben, she had already married and was residing with her husband, her conviction for the offence punishable under section 306 of IPC, as alternatively suggested by Mr. Dabhi, Ld. APP cannot be recorded. 17.1. However, so far as appellant - original accused no. 1 Bhursingh, who has preferred Criminal Appeal No. 1599/2009 is concerned, in light of the above discussion, his conviction recorded by the trial Court for the offence punishable under section 498-A of IPC as well as sentence awarded to him by the trial Court requires to be confirmed. However, his conviction recorded for the offence punishable under section 304-B of IPC is required to be set aside and in its place, he is required to be convicted for the offence punishable under section 306 of IPC. So far as the sentence required to be awarded to him for the offence punishable under section 306 of IPC is concerned, considering the facts and circumstances of the case as well as his age, we are of the considered opinion that RI for five years and fine of Rs.5,000/- and in default of payment of fine, SI for three months would meet the ends of justice. 18. For the foregoing reasons, Criminal Appeal No. 1293 of 2009 is allowed. Conviction of appellant [original accused no. 2] ASHABEN D/O. BHURSINGH HALUJI recorded by the Ld. Addl. 18. For the foregoing reasons, Criminal Appeal No. 1293 of 2009 is allowed. Conviction of appellant [original accused no. 2] ASHABEN D/O. BHURSINGH HALUJI recorded by the Ld. Addl. Sessions Judge, F.T.C., Palanpur, for the commission of offences punishable under sections 498-A read with section 114 of IPC and section 304-B read with section 114 of IPC and sentence awarded to her thereunder by virtue of the impugned judgment and order dated 9/7/2009 is set aside. Appellant ASHABEN D/O. BHURSINGH HALUJI is acquitted of all the charges levelled against her. Since pending the appeal, by suspending the sentence, she was released on regular bail by this Court, her bail bonds shall stand cancelled and her surety is discharged. Fine, if paid, be refunded to her. Criminal Appeal No. 1599 of 2009 preferred by appellant BHURSINGH HALUJI SOLANKI [original accused no. 1] is partly allowed. Conviction recorded by the Ld. Addl. Sessions Judge, F.T.C., Palanpur, for the offence punishable under section 304-B read with section 114 of IPC and sentence awarded to him thereunder by virtue of the impugned judgment and order dated 9/7/2009 is set aside. However, appellant BHURSINGH HALUJI SOLANKI is convicted for the offence punishable under section 306 of IPC and he is sentenced to undergo rigorous imprisonment for five years and fine of Rs.5,000/- [Rupees five thousand only], in default of payment of fine, simple imprisonment for three months. His conviction recorded by the trial Court for the offence punishable under section 498-A of IPC and the sentence awarded to the appellant thereunder by the trial Court is maintained and confirmed. Both the sentences of imprisonment shall run concurrently. He is in jail, therefore, he shall serve out remaining part of the sentence. However, he is entitled to benefit of set off.