1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 298 OF 1997 Madhukar s/o Panditrao Kendre, Age 33 years, Occupation Service, at present Nil, Resident of Wadgaon (Aki), Taluka Udgir, District Latur APPELLANT (Ori. Accused) V E R S U S The State of Maharashtra RESPONDENT Mr. N.K. Kakade, Counsel for the appellant Mr. N.H. Borade, A.P.P. for the respondent / State [ CORAM : A. V. NIRGUDE, J. ] [Judgement Delivered on : 19th April, 2010] JUDGMENT 1. This appeal is filed against the Judgment and order passed by the learned Sessions Judge, Latur, in Sessions Case No. 8 of 1997, dated 23rd September, 1997, convicting the appellant under Section 498-A and under Section 304-B of the Indian Penal Code. The learned Sessions 2 Judge sentenced the appellant to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.3,000/- (Rupees Three Thousand), in default to suffer rigorous imprisonment of six months for the offence punishable under Section 304-B of the Indian Penal Code and he is sentenced the appellant further to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,000/- (Rupees One Thousand), in default to suffer rigorous imprisonment of three months for commission of offence punishable under Section 498-A of the Indian Penal Code. The facts leading to the prosecution case, in short, can be stated as under : 2. In the year 1992, the appellant married Surekha, the daughter of the complainant. Until 25th August, 1996, the appellant allegedly treated Surekha with cruelty for getting his unlawful demands for remaining amount of dowry and for additional amount. Surekha was found dead in the appellant’s house. On one hand, the prosecution alleged that the appellant committed murder of Surekha. In the alternative, it is said that the appellant caused dowry death of Surekha. The prosecution case further alleges that at the time of settlement of the marriage, it was agreed that Surekha’s father, prosecution witness No. 3 Shivaji should pay Rs.65,000/- to the appellant besides other ornaments etc. Shivaji could pay only Rs.55,000/- at that time and sought time for effecting payment of the remaining amount. After 1 ½ year, the appellant started demanding remaining amount of dowry through Surekha. She made complaint 3 about ill treatment, beating etc. at the hands of the appellant to her parents and sibling. Soon thereafter, the appellant started demanding Rs.50,000/- more. He said, he needed that amount to settle a criminal case, which was filed against him. [The appellant was working as police constable, and in certain event, due to the constable’s attack a person died, and that, the appellant and other police constables were accused of committing the offence of homicide.] During Diwali festival of 1995, Surekha and appellant visited the house of complainant Shivaji. On that occasion, Surekha requested her parents to give money to the accused and that she was being subjected to cruelty, harassment and beating due to the non-fulfillment of his demand. Even the appellant made such demand on that occasion and refused to take meals. The complainant, however, could not arrange funds. In the meantime, the prosecution witness No. 5 Vishwanath, at the request of the complainant, visited the appellant, in order to persuade him not to beat and harass Surekha. The appellant did not pay any heed to the advice. The appellant even demanded the amount of remaining dowry to Vishwanath. On 23rd August, 1996, the appellant visited the complainant’s house and demanded money once again. When the complainant could not fulfill the demand, the appellant got angry and tried to assault the complainant Shivaji with a knife. The witnesses foiled this attack and pacified the appellant. However, the appellant again threatened the complainant that if the amount would not be paid, the complainant would hear news about murder of his daughter within few days. Within two days thereafter, on 25th August, 1996, in the morning, the complainant Shivaji received 4 information about death of his daughter Surekha. He visited the appellant’s house and found Surekha dead. On the same day, complainant Shivaji approached the police of Wadhona (Bk) Police Station and gave his report in writing. The police registered offence and the investigation began. Ultimately, the appellant was brought before the learned Sessions Judge, who charged him for having committed offences punishable under Section 302, in the alternative under Section 304-B and under Section 498-A of the Indian Penal Code. The learned Sessions Judge then recorded evidence of eight prosecution witnesses, and, in defence, the appellant recorded depositions of two defence witnesses. The learned Judge, after discussing elaborately the evidence on record, came to the conclusion that the prosecution could not prove that it was the appellant, who caused death by administering poisonous substance to Surekha during the night between 24th August, 1996 and 25th August, 1996. However, he came to the conclusion that the prosecution could prove that the appellant treated the complainant with cruelty on account of non-fulfillment of unlawful demand for remaining dowry amount of Rs.10,000/-. The learned Sessions Judge also held that the prosecution could prove that Surekha was subjected to cruelty, and that, she died within seven years of her marriage in abnormal and suspicious circumstances. 4. After going through the entire evidence and after hearing the submissions of learned counsel of the parties, following points arose for my consideration : 5 1. Could the prosecution prove that the appellant treated Surekha with cruelty on account of non-fulfillment of his unlawful demands ? 2. Could the prosecution prove that the appellant had been demanding Rs.10,000/-, the remaining amount of dowry ? 3. If the answer to the above point is in negative, could the appellant be convicted under Section 304-B of the Indian Penal Code ? 4. If the appellant is not liable to be convicted under Section 304-B of the Indian Penal Code, could he be convicted for the offence punishable under Section 306 of the Indian Penal Code ? Point No.1 : 5. On this ground, there is a lot of evidence on record against the appellant. The depositions of PW 2 to 5 are quite eloquent to prove that the appellant subjected Surekha to cruelty, and, his conduct was willful and was of such a nature that it was likely to drive Surekha to commit suicide. It is also proved that the appellant harassed Surekha with a view to coerce her or her father to meet his unlawful demand of valuable security. Prosecution witness No. 3, the complainant, narrated as under : “My daughter gave birth to male child and female child out of the said marriage. About one and half years the accused 6 treated my daughter quite well... ...thereafter he was involved in a criminal case and was charged with offence of murder. That criminal case came on the Board of Court. The accused demanded Rs.50,000/- from me to settle and compound that criminal charge... ..........In the diwali festival prior to her death sow Surekha had come alongwith the accused, to my house and the accused also had demanded the money. He refused to take meals at my residence when I could not pay amount. He abused me for my failure to pay. ........On 23.8.96 the accused came to my village in a tractor vehicle driven by himself. I & my wife were in the agri. land when the accused reached our house. A small boy came to call us and therefore, I and my wife returned home. The accused then asked me to immediately pay the amount. I expressed my difficulty to pay him. After we came out of the house & while he was leaving, I requested him not to get annoyed. All of a sudden the accused took out a knife & came towards me, for assault. Ramkishan Kendre & Kishan Jaybhaye intervened & took him away, pacified & then he returned. The accused then threatened me, at the time of leaving, that though he was going on that day yet if I will not make payment within couple of days I will hear the news of my daughter’s death. 6. The prosecution witness No.2 Sindhu, the sister of the deceased and prosecution witness No. 4 Tulsabai, the mother of the deceased also in more or less same way narrated as to how the appellant harassed the deceased and how the deceased used to tell them about his cruelty. No doubt, there are few omissions and contradictions in the substantive evidence of these three witnesses. But, despite such minor defects, having gone through the cross-examination, I am in complete agreement with the learned Judge of the trial Court, who believed their statements. I am also inclined to believe this part of the prosecution case. I have, therefore, no hesitation to hold that the appellant had treated Surekha with cruelty on account of non-fulfillment of his unlawful demands. 7 Points No. 2 to 4 : 7. The prosecution case unfolds with an allegation that the appellant persistently demanded Rs.10,000/-, which was part of dowry and which remained to be paid. The learned Advocate appearing for the appellant asserted that such a demand in normal circumstances, would not persist for more than three years after the marriage, and that the prosecution could not prove that the demand of Rs.10,000/- persisted since 1992 till the death of Surekha. Let me therefore, examine the prosecution evidence, as to whether, it proves the demand of Rs. 10,000/-, the remaining amount of dowry. The prosecution case is that, when the marriage was settled, the appellant demanded dowry of Rs.65,000/-, out of which, the complainant-Shivaji effected payment of Rs.55,000/- and Rs.10,000/- remained unpaid. The prosecution witness No. 3 – Shivaji said that about 1 ½ month prior to the wedding, he paid Rs.55,000/- to the father of the accused as per the agreement and agreed to pay the remaining amount after one year. This witness, however, did not say, as to what happened between him and the appellant, or, between him and the father of the appellant after one year of the marriage in respect of the agreed sum of Rs.10,000/-. He, in fact said that for about 1 ½ year, the appellant treated his daughter quite well, but then he added that thereafter the appellant got involved in a criminal case and was charged with offence of murder. He then said that the case came before the Court for trial, and at that time, the appellant demanded Rs.50,000/- from him for settlement and compounding of the charge. He then said 8 that at that time, he even demanded Rs.10,000/-, the remaining amount of dowry. This part of his deposition shows that the appellant or his father did not demand remaining amount of Rs.10,000/- of dowry till the appellant got involved in the criminal case. There is no dispute about the fact that the appellant got involved in a criminal case, and when the case came up for hearing, it is quite believable that the appellant might have demanded Rs.50,000/- for settling the case out of Court. At that time, it is rather unacceptable that he would demand the remaining amount of dowry also. It is because, the appellant was in precarious condition, he was facing serious criminal charge, he was probably thinking of getting the case compounded through payment of substantial amount to the complainant in that case. In such a situation, such person would rather seek help of his relatives and since his wife was a soft target, he could have certainly demanded Rs.50,000/- from his father-in- law through his wife. But, it is not believable that in addition to such a big sum, the appellant would continue his relatively smaller demand of Rs.10,000/-. 8. The prosecution witness No. 2 Sindhu is younger sister of deceased. She was 10 to 12 years old when Surekha got married to the appellant. She said that whenever Surekha visited their house, she used to take with her, and during her talks, Surekha used to tell her that her husband was demanding Rs.10,000/-, the remaining part of dowry. She also stated that Surekha told her that her husband harassed her, beat her frequently after drinking liquor etc. This witness also stated that deceased Surekha 2-3 times told her that the appellant was facing a 9 criminal case of murder and was demanding an amount of Rs.50,000/-. This witness, however, has not clarified as to whether the demand of remaining dowry amount of Rs.10,000/- was a feature of the time when the appellant had not faced the criminal case of murder against him. 9. The prosecution witness No.4 – Tulsabai, the mother of the deceased, reiterated the prosecution case that during four years of the marriage, Surekha visited her house on number of occasions, and on many occasions, she narrated her misery and about the demand of Rs.10,000/-, the remaining amount of dowry and Rs.50,000/- etc. The prosecution alleges that the appellant had two different demands from the deceased and her relatives. His first demand was of Rs.10,000/-, which remained unpaid, though agreed at the time of settlement of the marriage. 10. The complainant, prosecution witness No.3 admitted that for the first 1 ½ year, the appellant treated deceased Surekha quite well. He thereby admitted that for 1 ½ year there was no demand of Rs. 10,000/-, the remaining amount of dowry. It has come on record that on 14th November, 1993, an offence under Section 302 read with 34 of the Indian Penal Code was registered against the appellant and his colleagues at Biloli police station. The complainant alleged that it was the appellant and his colleagues, who attacked and mercilessly beat her husband Mariba and caused his death. It has also come on record that the charge-sheet was sent to the Court against the appellant and others on 25th February, 1994. It is clear that the appellant came in serious trouble due to the filing of the complaint and filing of the charge-sheet 10 some time before 25th February, 1994. One may therefore assume that before this incident, the appellant had no reason to demand Rs.50,000/- to get the case against him settled. On the other hand, till then, at the most, he had grievance against his wife and her parents, that they had not paid Rs.10,000/- to him. Assuming that, prior to February, 1994, the appellant harassed, abused and insulted his wife on account of demand of Rs.10,000/-, and, assuming, the deceased referred this cruelty and demand to her parents, it was more likely that the parents of the deceased would have taken this matter to a mediator for consoling and pacifying the appellant. Admittedly, the prosecution does not indicate that prior to 1994, specially before filing of the complaint against the appellant, for causing death of Mariba, there occurred any meeting between complainant and the appellant and his parents. As said above, the marriage between the appellant and deceased Surekha took place in the year 1992 and the incident of Mariba’s homicide took place in November, 1993. This incident occurred most probably within 1 ½ year from the date of wedding. The appellant, apparently came in a serious trouble due to filing of the case of murder against him. In view of this, it is not likely that prior to November, 1993 the appellant had made demands of Rs.10,000/-, the remaining amount of dowry, and on account of such demand, he treated Surekha with cruelty. It appears that the prosecution witnesses, after the incident, made omnibus allegations that appellant not only demanded Rs.50,000/- for getting the case against him settled, but also demanded Rs.10,000/-, which was part of unpaid dowry. I am not inclined to believe the prosecution case 11 as far as the demand of dowry is concerned. In view of this, obviously the appellant cannot be convicted for the offence punishable under Section 304-B of the Indian Penal Code. 11. The learned A.P.P. urged the Court that if the Court is not inclined to believe the prosecution case of demand of Rs.10,000/-, the remaining part of the dowry, it can still convict the appellant for an offence punishable under Section 306 of the Indian Penal Code. Let me therefore examine this aspect of the case. The prosecution case is quite strong as far as appellant’s demand of Rs.50,000/- and his cruel behaviour towards not only his wife Surekha, but even against his father- in-law. The learned Sessions Judge discussed this aspect quite elaborately, and, I agree with his conclusion that the prosecution proved beyond reasonable doubt that the appellant was making unlawful demand of Rs.50,000/- from his wife and through his wife, from the prosecution witness No.3. If this illegal demand was not falling within ambit of term ‘dowry’, as defined under Section 2 of the Dowry Prohibition Act, then could the appellant still be convicted under Section 306 of the Indian Penal code read with Section 113-A of the Indian Evidence Act? In order to appreciate the submissions on this point i may quote the relevant provisions of law. Section 306 of the Indian Penal Code reads as under :- “Abetment of suicide – If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” Section 113 –A of Indian Evidence Act reads as under :- 12 “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.” In this case, there is no difficulty in accepting the conclusion of the learned Judge of the lower Court that this was certainly not a case of murder, but it was a case of suicide. This suicide was of married woman, and it is proved beyond reasonable doubt that her husband, the appellant, had subjected her cruelty, and that, she died within the period of seven years of marriage. In view of these circumstances, the Court may presume, having regard to all the circumstances of the case that the suicide had been abetted by her husband. 12. However, the learned Advocate appearing for the appellant questioned this course of action saying that the appellant was never charged under Section 306 of the Indian Penal Code. He said, if this Court is coming to a conclusion that the appellant could be convicted under Section 306 of the Indian Penal Code, this Court has to remand the case back to the lower Court for framing of charge under Section 306 of the Indian Penal Code, and that, the Court cannot directly convict him under such provision. But, the Law on this subject is, laid down by the Supreme Court in the case of K. Prema S. Rao and another Versus Yadla Srinivasa Rao and others (2003) 1 Supreme Court Cases 217). In that case, the husband of the deceased, who had committed suicide, 13 was convicted under Section 498-A of the Indian Penal Code, but was not convicted under Section 304–B of the Indian Penal Code. The Supreme Court examined the Judgment which acquitted the husband from the offence under Section 304–B of the Indian Penal code. It accepted the finding of the lower Court that the husband did not harass the wife on account of demand of dowry. It so happened in that case that the wife, at the time of wedding, was gifted with landed property as ‘Stridhan’ by her parents. The couple stayed together for 2–3 months quite happily, but thereafter, the husband started harassing wife to force her to transfer the land given to her as ‘Stridhan’ to him. This harassment, the Supreme Court held, cannot be said to be in connection with any alleged dowry demand, and therefore, the Supreme Court found no error in the order acquitting the husband for the offence punishable under Section 304–B of the Indian Penal Code. The Supreme Court, however, found that the evidence, that had come on record in that case, was quite sufficient to convict the husband, for the offence of cruelty, under Section 498–A of the Indian Penal Code, and further held, that the same evidence would make out a case for the husband’s conviction for the offence of abetting suicide of his wife, punishable under Section 306 of the Indian Penal code read with Section 113–A of the Indian Evidence Act. In that case also, it was argued before the Supreme Court that in absence of charge framed under Section 306 of the Indian Penal Code, the accused cannot be convicted under the said Section. However, having regard to the wordings of the charge that was framed 14 by the trial Court against the accused, the Supreme Court held thus : Paragraph No. 22 : “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 304-B and in the alternative Section 498-A 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 part of the trial Judge to mention Section 306 IPC with Section 498-A IPC does not preclude the court from convicting the accused for the said offence when found proved. In the alternate charge framed under Section 498-A 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 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. Section 221 CrPC needs reproduction : “221. Where it is doubtful what offence has been committed – (1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences. (2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it.” Paragraph No. 23 : “The provision of sub-section (2) of Section 221 read with sub- section (1) of the said section can be taken aid of in convicting and sentencing Accused 1 of offence of abetment of suicide under Section 306 IPC along with or instead of Section 498-A IPC.” Paragraph No. 24 : “Section 215 allows the criminal court to ignore any error in stating either the offence or the particulars required to be stated in 15 the charge if the accused was not, in fact, misled by such error or omission in framing the charge and it has not occasioned a failure of justice. See Section 215 CrPC which reads :