1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. J U D G M E N T Basanti Lal & Ors. vs. State of Rajasthan Date of Judgment :::: 17.03.2009 S.B. Criminal Appeal No.1564 of 2002 under Section 374 (2) Cr.P.C. against the judgment dated 13.11.2002 passed by Shri Baldev Ram Chaudhary, RHJS, Addl. Sessions Judge (Fast Track) Tonk in Sessions Case No.55/2002. Present HON'BLE MR.JUSTICE BHANWAROO KHAN Mr. Anil Kumar Sharma along with Mr. Mohan Chaudhary for the appellants Mrs. Rekha Madnani, P.P. along with Mr. Bhvnish Kumawat P.P. By the Court: On 24.3.2001 Ram Prasad ASI, Police Station Kotwali, Bundi recorded Parcha Bayan (Ex.P.5) of Teena wife of Navneet Kumar who was admitted in Surgical Female Ward of Government Hospital, Bundi in which she stated that her marriage took place with Navneet Kumar on 23.4.2000 in Sammelan at Kapren. After the marriage she went to the house of her in-laws at Deoli village twice or thrice and till then there was no harassment by 2 her in-laws. Two-three days prior to the occurrence her father-in-law came to her father at Keshorai Patan. She was at the house of her uncle at Deoli and came to the house of her in- laws with her brother Jambu Kumar at about 4.00- 4.30 P.M. On the previous night there was some function in the family so she did not have any talks with any body. Today at about 4.00 she poured kerosene on her and lit fire herself for committing suicide as her mother-in-law Chandra, brother-in-law Naresh, father-in-law Basanti Lal and husband Navneet used to beat her. The in-laws got her admitted in the hospital at Bundi. On the basis of this Parcha Bayan a case under Sections 498-A and 306 IPC was registered against the three appellants and co-accused Naresh Kumar vide FIR No.97/2001 (Ex.P.8). On the same day at about 9.15 P.M. statement of injured Teena (Ex.P.12) was recorded by Ajay Kumar (P.W.16) ACJM, Bundi. Injured Teena died on 14.4.2001. After investigation the police submitted a challan against accused appellants under Sections 498-A and 304 B IPC. As the fourth accused Dinesh Kumar who was juvenile at the time of the occurrence, separate challan against him was filed before the juvenile court. On the basis of the material and evidence 3 collected by the police during investigation, the learned trial court framed charge against the appellants under Sections 498-A and 304B IPC to which they denied, pleaded not guilty and claimed trial. To prove its case the prosecution examined as many as 16 witnesses and also got exhibited 12 documents. In their statements under Section 313 Cr.P.C. appellants Basanti Lal and Navneet Kumar denied the allegations and deposed that at the time of the occurrence they had gone to attend a training programme at Government Middle School Deoli and they were informed about the occurrence by the neighbourers at the School. They have also submitted a written statement under Section 233 (2) Cr.P.C. Four witnesses were examined in defence. The learned trial court after recording evidence of the prosecution and hearing both the side and also after discussing the entire evidence and material available on record by the impugned judgment dated 13.11.2002 while convicting the appellants for offence under Sections 498-A and 304B IPC has sentenced them as under:- 4 Under Section 304B IPC To undergo 10 years' rigorous imprisonment and to pay a fine of Rs.100/- each. In default of payment of fine to further undergo simple imprisonment for three months. Under Section 498A IPC To undergo 3 years' rigorous imprisonment and to pay a fine of Rs.100/- each. In default of payment of fine to further undergo simple imprisonment for three months. Against which the appellants have filed the present appeal. During pendency of the appeal appellant Basanti Lal died and no application under Section 394 Cr.P.C. has been filed by his legal heirs to continue the appeal on behalf also within the prescribed period. Hence, appeal on his behalf stands abated. Heard learned counsel for the appellants and learned P.P. Learned counsel for the appellants have contended that there is no evidence of any demand of dowry. The deceased remained at the house of her parents for all the times so the question of demand of dowry or harassment on account of demand of dowry soon before her death could not have arisen. The dispute was not even related to 5 the demand of dowry but because of living of the deceased at her parental house, the deceased herself committed suicide. Neither harassment nor demand of dowry is borne out from the evidence produced by the prosecution. No incident of cruelty has been mentioned by any of the witnesses produced. There are two statements made by the deceased. One is the Parcha Bayan (Ex.P.5) and the second is the statement (Ex.P.12) recorded by the Magistrate under Section 164 Cr.P.C. and both are contradicting each other. In the Parcha Bayan (Ex.P.5) she has not stated a word about demand of dowry but a simple statement about the beating given by the accused persons for which the reason has also not been mentioned by her. In the statement she has specifically mentioned that it was she who herself pured kerosene on her and set herself at fire. Whereas on the arrival of the relations she has levelled allegation against co-accused Nilesh stating therein that after pouring kerosene from the stove, Nilesh set her on fire whereas the statements of the witnesses who reached after the occurrence are narrating about the occurrence stating that she told them that her father in-law poured kerosene and brother-in-law Nilesh lit her at fire. Learned counsel on the basis of this have contended that there are material 6 contradiction in the statements of the witnesses about the incident and, therefore, no reliance can be placed on the statements of the witnesses. In such circumstances as per the arguments of the learned counsel for the appellants neither a case under Section 304 B IPC nor under Section 498-A IPC is established against the appellants. The learned trial court after drawing presumption under Section 113-B of the Evidence Act has wrongly convicted the accused appellants more so when the case is not fully established and on the basis of the statements of the prosecution witnesses no presumption can be drawn. Before drawing any presumption under Section 113-B of the Evidence Act it was incumbent upon the prosecution to have established the case against the appellants for commission of offence chargd under sections 304B and 498-A IPC. Learned Public Prosecutor on the other hand have supported the judgment of the trial court and have contended that the death of the deceased had occurred within 10-11 months of the marriage i.e. within seven years of the marriage and the death is neither accidental nor natural thus a presumption under Section 113-B of the Evidence Act can very well be drawn and the learned trial court after relying on the evidence of the 7 prosecution if has drawn presumption of Section 113-B of the Evidence Act has convicted the appellants, no illegality has been committed by the trial court. From the evidence tendered by the prosecution offence under Sections 304B and 498-A IPC is well established against the appellants. After hearing both the sides, I have gone through the impugned judgment and also the material and evidence available on record. From the injury report Ex.P.7 and post mortem report Ex.p.6 it is established that death of deceased Teena was neither natural nor accidental but she died on account of burn injuries on her person and because of septicemia. Before her death she gave statement (Ex.P.5) to the police which was recorded after getting the certificate (Ex.P.11) from the treating doctor about her mental fitness which finds supports from the statement of Dr. Suresh Jain, PW.13. In his cross-examination this witness has specifically admitted that except Ex.P.11 he neither issued any certificate nor any inquiry about the mental fitness of the deceased was made by any other person. This clearly reveals that while recording the statement under Section 164 8 Cr.P.C. (Ex.P.12) no certificate about the mental condition of the deceased was obtained by the Magistrate. In his cross examination Ajay Kumar, the then ACJM, Bundi (PW.16) has admitted that before recording statement under Section 164 Cr.P.C. he called Dr. Suresh Jain and verified about the mental condition of the deceased. A note on Ex.P.10 simply bears that Dr. Suresh Jain stated that Smt. Teena was mentally fit to depose but this document as well as statement Ex.P.12 do not bear signature of Dr. Suresh Jain. Therefore, it is clear that the Magistrate has relied upon only on the document Ex.P.11 which was obtained by the police at the time of recording parcha bayan of deceased Teena. It is pertinent to mention here that the parcha bayan of the deceased was recorded at about 6.30 P.M. Whereas the statement by the Magistrate was recorded at 9.15 P.M. i.e. after more than 3 hours of recording of the Parcha Bayan and the Magistrate at the time of recording statement of the deceased did not think it proper to get verification from the doctor about the mental status of the deceased. In such a situation Ex.P.12 is of no help to the prosecution and very well discarded. Now, only remains Ex.P.5, the parcha bayan 9 of the deceased in which her simple statement is that all the accused persons used to belaboured her. This statement is not finding any corroboration from the near relatives of the deceased who have stated that the accused used to demand Rs.15,000/- to repay the loan and because of this all the accused persons used to belaboured her. The statement of Bhag Chand Jain PW.4, who is the father of the deceased is that Rs.15,000/- were being demanded and the accused persons used to given beating to his daughter. Whereas Smt. Santosh, PW.5, who is the mother of the deceased has stated that the accused persons used to demand dowry and used to give beating to her daughter. Smt. Ravi Jain, PW.6 who is the sister of Smt. Santosh has also deposed about the demand of dowry of Rs.15,000/- and also about the harassment with the deceased by the accused persons. Jambu Kumar Jain, PW.8, who is the brother of the deceased has stated that the accused persons used to demand Rs.15,000/- as dowry and used to give beating to his sister on this account. Vimal Kumar PW.9 who is the uncle of the deceased has also narrated in the same way but the statements of these witnesses in the light of the parcha bayan Ex.P.5 given by the deceased cannot be found to be reliable as the deceased nowhere has stated about the demand of 10 dowry but has stated simple word that accused used to give beating to her. It is an undisputed fact that after the marriage, she remained in the house of her parents and came to the matrimonial home only twice or thrice. The material contradiction about the case of the prosecution is that who set her at fire as nothing is available on record although all the near relatives of the deceased have deposed that it was Basanti Lal who poured kerosene and it was Nilesh who lit fire on her but in her statement under Section 164 Cr.P.C. (Ex.P.12) the deceased has stated that it was only Nilesh who lit fire after pouring kerosene from the stove. Therefore, when deceased Teena has not levelled any allegation against Basanti Lal then how and under what circumstances they are involving Basanti Lal is not understandable. From the evidence tendered and also recorded on Ex.P.5 it is found that the accused persons used to torture, harass and used to give beating to the deceased and because of that she herself poured kerosene and lit at fire. From the evidence produced it can be gathered that the accused persons used to give beating to the deceased which ultimately led her to commit suicide and thereby they abetted the deceased Teena to commit suicide. It is true that at the time of committing suicide by deceased 11 Teena her husband was not present but this itself is not sufficient not to involve accused appellant Navneet Kumar in the commission of the crime. The action of the appellants giving beating to the deceased ultimately instigated the deceased to such extent so as to drive herself to commit suicide. From the evidence tendered and it has been observed that there was no demand of dowry. Section 304B IPC deals with dowry death and has application 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 relatives of her husband for, or in connection with any demand for dowry. “Soon before” as has been observed by the Apex Court in the matter of M.Srinivasulu vs. State of A.P. {IV(2007) CCR 119 (SC)} is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence 12 of dowry death as well as for raising a presumption under Section 113B of the Evidence Act. The expression `soon before her death' used in substantive Section 304B, IPC and Section 113B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression `soon before' is not defined. The determination of the period which can come within the term `soon before' is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression `soon before' would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live-link between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence. As has been observed that deceased Teena has not levelled any allegation about demand of dowry then the question of dowry death does not arise in the case in hand. During the period of 11 months since marriage the deceased came twice or thrice at the matrimonial house and at the last 13 she came at the house of the appellants 2 days prior to the occurrence. During this intervening period also no harassment or torture for demand of dowry has been established by the prosecution. For offence under Section 498-A IPC, the explanation (a) gives meaning of `cruelty' and would by itself amoaunts to an offence. `Cruelty' as defined under Section 498-A IPC means any willful conduct which is of such a nature as is likely to drive the woman to commit suicide. The statement given by the deceased as Parcha Bayan clearly reveals that though there was no demand of dowry but the accused persons used to beat her and because of that as per the statement of the prosecution witnesses she used to remain at her parental house and during the period of about 11 months since the marriage she came to the house of the accused persons only for twice or thrice. The `cruelty' with the deceased at the hands of the accused persons is also corroborated from the statements of the witnesses who have deposed about the fact of beating of deceased and so also the version given by the deceased in her parcha bayan Ex.P.5. In her parcha bayan Ex.P.5 deceased Teena has specifically levelled allegations of beating against mother-in-law Smt. Kanta @ Chanda, 14 brother-in-law Nilesh, father-in-law Basanti Lal and husband Navneet Kumar and so also the other witnesses of the prosecution deposed about the beating given by the appellants. As the demand of dowry soon before the death is not established but the cruelty and harassment at the hands of the accused persons has been completely established, a case under Section 498-A IPC is proved against the appellants but offence under Section 304B IPC is not made out. The Section 113B of Evidence Act regarding presumption would not arise in this case because the presumption arises only when dowry death is established whereas in this case no such case exists. As has been discussed the offence charged under Section 304B IPC is not made out but the fact of cruelty is established. Section 306 IPC deals with the abetment of suicide. From the evidence of the prosecution tendered, it is borne out that the accused persons used to give beating to the deceased which ultimately led her to commit suicide by pouring kerosene and lit herself to fire. In this case accused persons found to have harassed the deceased to such an extent as to drive her to commit suicide and thereby abetted the offence under Section 306 IPC. 15 Since there is no charge for offence under Section 306 IPC but the accused persons were charged for offence under Section 304B IPC and this being the lessor offence if proved on the basis of the evidence tendered even in absence of charge under Section 306 IPC, accused persons can be punished for this offence as no prejudice would be caused to the accused persons if they are convicted for offence under Section 306 IPC in absence of proper charge under Section 306 IPC. It is to be noted that the prosecution has failed to prove that on account of demand of dowry deceased Teena committed suicide in all probability no case under Section 304B IPC is made out. In fact there is no allegation that the harassment or beating used to be given to the deceased was for demand of dowry. Had there been any demand of dowry deceased Teena would have certainly stated while levelling allegation of beating against accused persons also could have levelled allegation of demand of dowry which she did not. From the evidence it is well proved that because of the harassment, beating and torture by the accused persons the deceased Teena committed suicide and as such a case under Section 306 IPC is well proved but not under Section 304B IPC as 16 there was no demand of dowry soon before the incident. As a result of the discussions hereinabove a case under Section 306 IPC is made out against the appellants and thereby they are entitled for acquittal of the offence under Section 304B IPC. Offence under Section 498A IPC is also proved from the evidence produced by the prosecution. The appeal of the appellants deserves to be allowed partly. Consequently, the appeal is partly allowed. While maintaining conviction and sentence of the appellants Navneet Kumar and Smt. Kanta @ Chanda under Section 498A IPC, their conviction and sentence under Section 304B is set aside and they are acquitted of the charge under Section 304 B IPC instead both are convicted under Section 306 IPC. Under Section 306 IPC each of the appellants is sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs.2,000/-. In default of payment of fine each of the appellants shall undergo simple imprisonment for six months. Appellant Smt.Kanta @ Chanda is on bail. Her bail bonds are cancelled and she is directed to surrender before the trial court to serve out 17 remaining sentence. In case she does not surrender, the trial court shall take effective efforts for her arrest. (Bhanwaroo Khan),J. bairwa