IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Court’s Order whether the case is or not approved for reporting (Chapter VIII, Rule 32(2) (b) Description of Case Criminal Appeal No. 36 of 2001 Vinod Kumar Versus State Date of decision:-01.11.04 For the approval of:- Hon’ble Mr. Justice J. C. S. Rawat - Whether the order/judgment should be sent to the reporters for reporting? - Whether the reporters be allowed to see the judgment? Dated 01.11.04 LSR 1 IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL CRIMINAL APPELA NO. 36 OF 2002 Vinod Kumar son of Shri Chandra Ram, R/o Village Haldu Dhar Shantipuri, P.S. Lalkuan District Nainital. ------- Appellant. Versus State -------Respondent. Mr. N.C. Gupta learned counsel for the appellant. Mr. Nandan Araya learned A.G.A. for the State. HON’BLE J.C.S. RAWAT, J. 1. This is a criminal Appeal preferred by the appellant Vinod Kumar against the judgment and order dated 09.01.2002 passed by the Sessions Judge, Nainital in S.T.No. 211/2000 by which he convicted and sentenced the appellant under section 304 B IPC to undergo R.I. for seven years and under section 498 A IPC to undergo R.I. for one year and a fine of Rs. 1000/- (One thousand). In default of payment of fine to undergo three months further rigorous imprisonment. Both the sentences were ordered to run concurrently. 2. The facts, in brief, are that Smt. Sunita (deceased) and Vinod Kumar (appellant) were married three years ago prior to the present incident. Shanker Ram (PW1) is the maternal uncle of the deceased Sunita and Smt. Munni Devi (PW2) is the mother of the decease. Shanker Ram (PW1) received information on 06.09.2000 at 08.00 P.M. that Sunita had died. In the morning on 07.09.2000 Shanker Lal (PW1) reached at 2 the house of Sunita. He saw was lying dead and from her mouth froth was coming out. Prior to that the husband (appellant) of Sunita used to make demand for dowry. Shanker Lal (PW1) submitted report (Ex.ka 1) written by one Puran Lal at P.S. Lal Kuan district Nainital on 07.09.2000 at 7.35 P.M. On the basis of written report (Ex.ka1) Head Moharrir Mahesh Pal Singh (PW6) prepared chick report (Ex.ka 11) and a case was registered against the appellant vide F.D. entry (Ex.ka12). The Investigation was entrusted to Dy. S.P. Haldwani Sri Narain Singh Napachyal (PW 5). 3. On the report (Ex. ka 8) of S.H.O. Lal Kuan S.D.M. Haldwani directed the Nain Tehsildar Jeewan Singh Nagniyal (PW4) to conduct the panchayatnama etc. on the dead body of Sunita. On 07.09.2000 Jeewan Singh Nagniyal (PW4) prepared panchayatnama (Ex.ka3) of the dead body, letter (Ex.ka4), photo lash (Ex.ka5), challan lash (Ex.ka6), Sample of seal (Ex.ka7). 4. The autopsy on the dead body of smt. Sunita was jointly conducted by Dr. Chandra Shekhar (PW3) and Dr. B. Pant, Medical Officers, S.S. Jeena Hospital Haldwani on 08.09.2000 at 02.00 P.M. The following ante-mortem report (Ex.ka2):- 1. Contusion 3 cm x 4 cm present over right upper leg joint knee. 2. Contusion 2 cm x 3 cm present over left leg in the middle region. 5. The Investigating Officer Narain Singh Napachiyal (PW5) prepared sites plan (Ex.ka9) of the place of the 3 occurrence and after completing the formalities of investigation, submitted charge sheet (Ex.ka10) against the appellant. 6. Charge was framed against the appellant under sections 304 B IPC and 498 A IPC. The appellant pleaded not guilty and claimed to be tried. 7. The prosecution in support of its case examined PW1 Shanker Lal, maternal uncle of the deceased who proved written report (Ex.ka1), PW2 Dr. Chandra Shekhar conducted post mortem on the dead body of the deceased Smt. Sunita and proved post mortem report (Ex.ka2), PW4 Jeaewan Singh Nagniyal proved Panchayatnama (Ex. Ka 3), letter to CMO (Ex.ka4), photolash (Ex.ka7) and order of S.D.M. (Ex.ka8). PW5 investigated the case and proved site plan (Ex.ka9) and charge sheet (Ex.ka10), PW6 Head Moharrir Mahesh Pal Singh proved chick report (Ex.ka11) and G.D. entry Ex.ka12. 8. In the statement under section 313 Cr.PC. the appellant has admitted that Smt. Sunita was married to him three years ago. However, he stated that on the date of incident he was not present in the house. When he returned from Mela, he came to know about the death of Sunita. He brought the dead body to the hospital. His in-laws were demanding money and he has been falsely implicated in the case. The appellant, in defence, has adduced the evidence of Dalip Ram as DW 1 who is the negihbour of the appellant. 4 9. On appreciation of the entire evidence on record the learned trial court found the appellant guilty under sections 304 B and 498 A IPC and convicted and sentenced the appellant as above. 10. I have heard the learned counsel for the appellant and learned A.G.A. and perused the evidence. 11. It is not disputed that the appellant and the deceased Smt. Sunita were married 3 years before the present incident. It is also not in dispute that the deceased Smt. Sunita died unnatural death. 12. Now I have to determine as to who is responsible for causing the death of the decease. It is a well- settled principle of law that in order to convict an accused for an offence U/s 304B IPC, the following essentials must be satisfied:- (i) The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances. (ii) Such a death must have occurred with in seven years of her marriage. (iii) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband. (iv) Such cruelty or harassment must be for, or, in connection with demand of dowry. (v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death. 5 13. If the prosecution establishes the ingredients of section 304 B IPC as indicated above then a presumption of dowry death shall be drawn against the appellant u/s 113 B of the Indian Evidence Act. It is to be dept in mind that a presumption u/s 113 B is a presumption of law. Section 113 B of the Evidence Act is also relevant for the case at hand. Both the sections Prohibition Amendment Act (No. 43 of 1986) with a view to combat the increasing menace of dowry deaths. Section 113 B reads as follows:- “113 B:- Presumption as to dowry death-When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person caused the dowry death. Explanation :- For the purpose of this section ‘dowry death’ shall have the same meaning as in Section 304 of the IPC (45 of 1860)” 14. On proof of essentials mentioned in section 304 B IPC it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials:- (1) The question before the court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence u/s 304 B IPC). 6 (2) The woman was subjected to cruelty or harassment by her husband or his relatives. (3) Such cruelty or harassment was for, or in connection with any demand for dowry. (4) Such cruelty or harassment was soon before her death. A conjoint reading of Section 113 B of the Evidence Act and section 304 B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the ‘death occurring otherwise than in normal circumstances’. The expression ‘soon before’ is very relevant where section 113 B of the Evidence Act and section 304 B IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. ‘Soon before’ 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 of 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 of dowry death as well as for raising a presumption u/s 113 B of the Evidence Act. The expression ‘soon before her death’ used in the substantive section 304 B IPC and section 113 B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the 7 expression ‘soon before’ is not defined. A reference to expression ‘soon before’ used in section 144, Illustration (a) of the Evidence Act is relevant. It lays down that a court may presume that a man who is in the possession of goods ‘soon after the theft, is either the thief has received the goods knowing them to be stolen, unless he can account for his possession. 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.” 15. The word ‘cruelty’ used u/s 304 B IPC is not defined under that section. Section 498 A IPC makes cruelty by husband to the wife as a punishable offence. The word ‘cruelty’ has been defined in explanation appended to the said section. Section 498 A IPC with the explanation there under reads as follows:- “498 A- Husband or relative of husband of a woman subjecting her to cruelty- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be 8 punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation:- For the purpose of the section ‘cruelty’ means- (a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury to danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.” 16- Clause (a) of the expression u/s 498 A IPC defines cruelty to mean a willful conduct of the husband of such nature as is likely to drive the woman to commit suicide. 17- Now in the light of the above proposition of law I have to analysis as to whether the prosecution was able to prove the charges levelled against the appellant or not. It is not disputed that the two ingredients mentioned above are satisfied. Smt. Sunita deceased was married to the appellant Vinod Kumar and it is further not disputed that the matrimonial life has not crossed seven years. Smt. Sunita died on 06.09.2000. It is also not disputed that Sunita died otherwise than under normal circumstances. The defence had put the suggestions to the prosecution witnesses that the child of the appellant and deceased fell down from the cot and she was scolded by the appellant and thereupon 9 she committed suicide. It is also in the prosecution evidence that the deceased was taken to the hospital but she died on the way to hospital. I ma also conscious that the suggestion cannot be taken an admission of the appellant but it is relevant for the appreciation of the evidence and it is also transpired from the record that she committed suicide. 18- The learned counsel for the appellant vehemently argued that there was absolutely no evidence on record to suggest that the appellant subjected the death of Smt. Sunita to cruelty or harassment soon before her death and that such cruelty or harassment was for, or in connection with the demand of dowry. Now I will focus my attention in particular to the last three ingredients as indicated above. 19- Coming to the evidence of the parties PW-41 Shankar Ram informant and the maternal uncle of the deceased and PW-2 Smt. Munni Devi, mother of the deceased stated in their evidence that the marriage of the deceased was solemnized three years ago of the date of the occurrence. At the time of the marriage the father of the deceased was alive. Her father died after the marriage. Both the witnesses stated in their evidence that the father of the deceased gave dowry in the marriage according to his status but the appellant was not satisfied with the same and he used to demand more money and dowry from the deceased. P.W. 1 Shankar Ram stated in his evidence that the appellant used to harass or torture the deceased who made complaints to her mother about the same. PW -2 Smt. Munni Devi had also stated in her evidence that she took money from her relatives and the villagers and gave it to the appellant and also tried to make the 10 appellant understand the difficulties of Smt. Munni Devi. It is also in the evidence that the appellant belongs to a good family whereas PW-1 Shankar Ram and PW-2 Smt. Munni Devi belong to a poor family and they were not able to pay any amount to the appellant. However, during cross-examination it was tried to make out a case that the appellant is also a labour. The learned counsel for the defence made a cross- examination to both the witnesses but nothing could be elicited from their cross-examination and the evidence of both the witnesses remained unshaken. the witnesses had not been seriously cross-examined on the point of dowry and cruelty after the marriage. Both the witnesses had categorically stated in their evidence that the appellant always demanded the dowry and harassed the deceased. Smt. Munni Devi PW-2 had to borrow money from her brother and other villagers to fulfill the demand of the appellant. It is clearly established by the evidence of PW-1 and PW-2 that the deceased was subjected to cruelty in connection with the dowry. 20- In view of section 304 B IPC and section 113 B of the Evidence Act the prosecution has to establish that soon before her death the deceased must have been subjected to cruelty or harassment by her husband or by his relatives. PW-1 Shankar Ram and PW-2 Munni Devi had stated in their evidence that the appellant used to demand money from the deceased in connection with the dowry but they had stated that the appellant demanded dowry soon before the death of the deceased. There is no evidence on record to show that the appellant made a demand of dowry soon before the death, which compelled the deceased to commit suicide. There is no evidence on record that the 11 consequences of cruelty, which were likely to drive the woman soon before the death to commit suicide or to cause, grave injury to her life or health. In both the sections i.e. 304 IPC and 113 B of the Evidence Act it is essential that the cruelty should be proved immediately before the death of the deceased. It is also established from the evidence that the deceased committed suicide. During cross-examination of PW-1 Shankar Ram a suggestion was put by the defence that an infant son of the deceased and the appellant fell down from the body for Sunita and Sunita was scolded by her husband appellant on which she consumed poison and committed suicide. The evidence of PW-3 Dr. Chandra Shekhar who conducted the post-mortem on the body of the deceased with another Dr. B. Pant and prepared the post-mortem report EX.Ka-2 and stated that at the time of psot-mortem the cause of the death could not be ascertained and the viscera was preserved and sent for chemical examination. It has been noted in the viscera report Ex.Ka-13 that it contained argenoclora insecticide poison, which establishes that the death of Sunita was caused by taking poison. PW-3 Dr. Chandra Shekhar had also found ante-mortem injuries as indicated above on her body. This fact shows that she was subjected to cruelty prior to her death. The cruel conduct of the husband appellant led the wife to commit suicide. Thus the offence of abetment of committing suicide punishable u/s 306 IPC is proved against the appellant an a presumption of section 113 A of the Evidence Act can be raised against him. Section 306 IPC reads as under:- “306. Abetment of suicide- If any person commits suicide. Whoever abets the commission 12 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.” 21- Section 113 A of the Evidence Act is as follows:- “Presumption as to abetment of suicide by a married woman- 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 hr 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 hr husband. Explanation :- For the purpose of this section, ‘cruelty’ shall have the same meaning as in section 498 A IPC” 22- In the present case, it is proved by the evidence that the appellant abetted the deceased to commit suicide. In view of section 113 A of the Evidence Act there is a presumption that the deceased had committed suicide within a period of seven years from the date of her marriage and her husband or such relatives 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. Thus the presumption of law is also against the appellant. It is not disputed that the death of Sunita was unnatural. 13 23. From the perusal of the record it is revealed that no charge specifically has been framed against the appellant u/s 306 IPC but all facts and ingredients constituting that offence were mentioned in the charges framed u/s 498 A and 304 B IPC. Mere omission of 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 appellant was charged for an offence of higher degree causing dowry death u/s 304 B IPC that is punishable with minimum sentence of seven years rigorous imprisonment an maximum for life. Presumption u/s 113 A of the Evidence Act could also be raised against the appellant on same facts constituting offence of cruelty u/s 498 A IPC. No further opportunity of defence is required to be granted to the appellant when he had ample opportunity to meet the charge u/s 498 A IPC. 24. It has been held in K. Prema S. Rao and another vs. Yadla Srivastave Rao and others, (2003) Supreme Court cases-217 that though no charge was framed u/s 306 IPC but the accused can be punished for a lesser offence if the charge has been framed under a higher offence. 25. It is to be noted that sections 304 B and 498 A IPC can not be held to be mutually inclusive. These provisions deal with two distinct offences. It is true cruelty is a common essential to both the sections and that has to be proved. The Explanation to section 498 A IPC gives the meaning of cruelty. In section 304 B IPC there is no such Explanation about the meaning of cruelty. But having regard to the common backgrounds to these offences it has to be taken that the meaning of ‘cruelty’ or ‘harassment’ is the same as 14 prescribed in the Explanation to section 498 A IPC under which ‘cruelty’ by itself amounts to an offence. Such death should have occurred within seven years of marriage. No such period is mentioned in section 498 A. A person charged and acquitted u/s 304 B can be convicted u/s 498 A without that charge being there, if such a case is made out. If the case is established, there can be a conviction under both the sections. There should be cases where the deceased was subjected to cruelty but it was not such cruelty, which leads the death of the deceased. Meaning thereby the cruelty was not such which can be termed as it was subjected to soon before the death. In the present case the prosecution has established by cogent and reliable evidence of PW-1 Shankar Ram and PW-2 Smt. Munni Devi that the deceased was subjected to cruelty and harassment and it is not proved that it was committed soon before the death resulting the death of the deceased. From the evidence it is not established that there was a co-relation or there was existence of proximity at live- link between the effect of cruelty based on dowry demand and the concerned death. The incident of cruelty with regard to dowry demand was remote in time. On the facts of the case though it is difficult to sustain the conviction u/s 304 B IPC. There are sufficient evidence on record to convict the appellant as indicated above in terms of section 306 IPC along with section 498 A IPC. 26. In view of the above discussion I maintain the conviction and sentence awarded by the trial court under section 498 A IPC. The conviction and sentence imposed by the trial court against the appellant under section 304 B IPC are quashed and the appellant is 15 convicted and sentence under section 306 IPC instead under section 304 B IPC to undergo five years rigorous imprisonment. The sentences imposed under sections 498 A and 306 IPC shall run concurrently. 27. Let a copy of this judgment alongwith the record of the case be immediately sent back to the court concerned for needful compliance under intimation to this court within two months positively. (J.C.S. RAWAT J) Nov 1, 2004