Dalbir vs Jage Ram

R.L. Anand, J.—This is a criminal revision filed by Shri Dalbir and has been directed against the judgment dated 16th January, 1997, passed by the Court of Additional Sessions Judge, Sonepat, who acquitted respondents Jage Ram, Baljit, Subhash and Smt. Pataso for the offence under Sections 304B and 406 read with Section 34 of the Indian Penal Code.

According to the allegations of the complainant, Smt. Saroj died under unnatural circumstances in the house of her in-laws on account of the demand of dowry within 7 years of her marriage and that respondent Nos. 1 to 4 were harassing her and used to make demand from the deceased with regard to dowry items etc. According to Shri Dalbir, who is the real brother of the deceased, and who appeared as PW1 before the Trial Court, Smt. Saroj was married to accused-respondent Shri Baljit about 5 years prior to her death which took place on 18th October, 1994. According to the complainant, immediately after the marriage all the respondents started harassing and beating his sister for not bringing sufficient dowry in the marriage. The complainant tried to satisfy the demands of the respondents. At one time the complainant parted two buffaloes and on the other time one old Maruti Van worth Rs. 65,000/- was given to the respondents, so much so a sum of Rs. 20,000/- was also given to the respondents. This amount was borrowed by the complainant from Smt. Indira Wati. Yet another demand of Rs. 50,000/- was made by the respondents but this demand could not be satisfied by the complainant or by the deceased and for this reason the respondents started harassing and humiliating the deceased and even extended a threat to kill her.

Story of the prosecution further proceeds that on 18th October, 1994 a person from village Mehmoodpur informed the complainant in village Lakhan Majra that his sister was seriously ill. However, the complainant came to know from village Mehmoodpur that his sister had been killed in the fields by the respondents. Resultantly, the complainant went to the house of the respondents and saw the dead body of his sister lying in a room of the tubewell. The matter was reported ultimately to Police Station Gohana vide complaint dated 25th October, 1994 (Ex. PA). On the basis of this complaint formal FIR Ex. PA/1 was recorded at Police Station Gohana by S.I. Parkash Chand (P.W. 5) on 25th October, 1994 at 5.30 a.m. The Investigating Officer prepared the site plan (Ex. PE) and also recorded the statements of various witnesses and arrested the accused on 31st October, 1994. He arranged autopsy on the dead body of Smt. Saroj on 19th October, 1994 and Dr. Krishan Lal, however, did not see any injury on the person of the deceased. Resultantly, the viscera was sent to the office of the Chemical Examiner in order to determine the cause of death. The Director, Forensic Science Laboratory vide report (Ex. PG) found that the death of the deceased had taken place due to consumption of celphos (poison).

On completion of the investigation of the case, all the four respondents were challaned under Sections 304B and 406 read with Section 34 of the Indian Penal Code. They were tried by the Court of Additional Sessions Judge, Sonepat, who vide the impugned judgment dated 16th January, 1997 acquitted the respondents mainly on the grounds:

That the ingredients of Section 304B of the Indian Penal Code are not made as it is not proved by the prosecution that the marriage of the deceased had taken place within seven years of her death.

That the allegations of the prosecution do not constitute an offence u/s 306 of the Indian Penal Code.

Not satisfied with the judgment of the learned Trial Court, present revision has been filed by the complainant, which I am disposing of with the assistance rendered by Mr. D.R. Bansal, Advocate, appearing on behalf of the petitioner, Mr. R.S. Longia, Advocate, appearing on behalf of the respondent Nos. 1 to 4, and Shri Shailender Singh, D.A.G., Haryana who appeared on behalf of State-respondent No. 5.

After hearing the full length trial, the learned Trial Court came to the conclusion that the ingredients of Section 304B of the Indian Penal Code are not made out. In para Nos. 15, 16, 17 and 18, which are quoted below, the learned Additional Sessions Judge came to the conclusion that the ingredients of Section 306 of the Indian Penal Code are not proved, as it is not proved by the prosecution that there was any abetment leading to the death of the deceased :

Faced with this situation, the learned Public Prosecutor has vehemently argued that even if the charge u/s 304B of the Code fails, the accused are liable to be punished u/s 306 of the Indian penal Code, which reads as follows :

"If any person commits suicide, whoever abets the commission of suicide, shall be punishable with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

Elaborating his contentions, the learned Public Prosecutor has emphasized that the acts and actions of the accused in their demand for more dowry have resulted in the death of Smt. Saroj. It is true that PWs Dalbir, Chand Kaur and Indira Wati in their statements have highlighted the fact that the accused used to harass and humiliate Smt. Saroj as they were not satisfied with the dowry given in the marriage. To satisfy their lust, they had provided them with two buffaloes, a Maruti Van and a cash amount of Rs. 20,000/-. Complaint Ex. PA also provides the basis of the accused''s demand for more money. No doubt, there are discrepancies but I do not think that these are of such nature and effect as to alter the situation. But the question to be seen is whether their alleged demand for more dowry and harassment to the deceased amounts to abetment.

The abetment is defined in Section 107 of the Indian Penal Code, which runs as follows. :

"Abetment of a thing--A person abets the doing of a thing, who-- First: Instigates any person to do that thing; or

Secondly : Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act of illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly : Intentionally aids, by any act or illegal omission the doing of that thing.

Explanation 1 : A person who, by wilful misrepresentation, or by wilful concealment of a material fact that he is bound to disclose, voluntarily causes or procures, or attempts to cause or produce a thing to be done, is said to instigate the doing of that thing.

Explanation 2 : Whoever, either prior to or at the time of the commission of an act, does anything in order to faciliate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act."

Manifestly, the abetment to commit suicide could be through intentional aiding, conspiracy and instigation. There is no accusation against any of the accused of intentional aiding or conspiracy. Expression instigation in the Concise Oxford Dictionary is defined as urge on, incite, bring about by persuasion'' and in Webster''s it has been defined as urge forward, provoke with synonyms of stimulate, urge, spur, provide tempt, incite, impel, encourage, animate. The word instigate in common parlance would mean to go, to urge forward or to provoke, incite or encourage to do an act. There is nothing in the complaint Ex. PA that the accused had at any time abetted the deceased for the commission of the act of suicide. The mere harassment of the accused for some reason or the other does not constitute abetment through instigation. Numerous case laws have been cited oh this aspect and to cite a few are State of Haryana v. Babu Ram and Anr. 1992 (1) CCJ 68 State of Punjab v. Sham Lal and Anr. 1991 (2) SLJ 1304:1 (1992) DMC 477 Mahinder Singh v. State of Punjab 1986 (1) RCR 540; Shiv Lal and Ors. v. State of Haryana 1983 (2) RCR 318 and the latest in series is the Apex Court Order recorded in Mahinder Singh and Anr., v. State of M.P. 1996 (1) CCJ 159.

Learned Counsel for the petitioner, however, submits that even if all the concession is granted to the respondents under Sections 304B and 306 of the Indian Penal Code, yet there is enough evidence u/s 498A of the Indian Penal Code against the respondent-accused and the Trial Court has committed a patent illegality in not convicting at least Shri Baljit, husband of Smt. Saroj, who, according to the learned Counsel for the petitioner, received a sum of Rs. 20,000/- and second hand Maruti Car.

The Counsel further submits that there is enough evidence coming from the mouth of the relation witnesses that the deceased was subjected to cruelty by the husband in relation with the demand of dowry. It is also submitted by the learned Counsel for the petitioner that admittedly Smt. Saroj died under unnatural circumstances as the cause of her death was determined due to the consumption of celphos (poison), which is used in killing the insects etc.

Mr. R.S. Longia, learned Counsel appearing on behalf of respondent Nos. 1 to 4, on the contrary, submits that the Trial Court has rightly disbelieved the testimony of the witnesses in not recording the conviction u/s 304B or u/s 306 of the Indian Penal Code. He submitted that even the offence u/s 498A, Indian Penal Code, prima facie, is not made out against any of the respondents.

Mr. Shailender Singh, learned Deputy Advocate General, Haryana, however, at this stage takes the stand taken by the learned Counsel for the petitioner in spite of the fact that the State has not filed an appeal challenging the judgment of acquittal.

After hearing the learned Counsels appearing on behalf of the rival parties and after going through the statement of Shri Dalbir (PW1), whose statement stands corroborated by Smt. Chand Kaur (PW 2) and Smt. Indira Wati (PW 4), I am of the considered opinion that the offence u/s 498A of the Indian Penal Code is made out against the husband of the deceased and this aspect of the case has not been properly considered by the learned Additional Sessions Judge while passing the impugned judgment.

In such like matrimonial cases, relations are the best witnesses. The deceased was a young lady of 21 years and it is the common case of the parties that she gave birth to two children. It is not established on the record that the deceased was suffering from any ailment or depression so that she may take the extreme step of committing suicide. It is also the common case of the parties that the death of Smt. Saroj took place in the house of respondent Nos. 1 to 4. In these circumstances some reasonable inference has to be drawn that the deceased was subjected to cruelty.

Now, it is to be seen in the light of the evidence, against whom the offence u/s 498A of the Indian Penal Code had been proved. Dalbir (PW 1) has categorically stated that at one time he had given two buffaloes to accused Baljit but those buffaloes were ultimately sold by Jage accused. It has come in the statement of Shri Dalbir that about four years ago, on the demand of the accused, he gave a second hand Maruti Van to them. Further it has been stated by him that he paid a sum of Rs. 20,000/- in cash to accused Baljit Singh as he demanded that money for the construction of a house on separation from his parents. In the cross-examination this witness has stated as follows :

"I had taken that money from my brother-in-law Kaptan who sold his paddy to a commission agent in Gohana. The accused did not get the said van transferred in his name. It remained in my name. While the van was with the accused Baljit, it met with an accident. However, the case was registered against me. An amount of Rs. 20,000/- was paid by my mother without our concurrence. We never reported the matter to the police about the harassment meted out to my sister."

This cross-examination, on which Mr. R.S. Longia, learned Counsel appearing on behalf of respondent Nos. 1 to 4, has relied, cannot come to the rescue of Shri Baljit accused so far as the offence u/s 498A of the Indian Penal Code is concerned. This Court cannot lose sight of the fact that relationship between husband and wife is so sensitive that it can hardly be expected from a brother-in-law (loser) to accept a receipt etc. from his brother-in-law (hirer). Such like cases go on confidence. Shri Baljit Singh could be the beneficiary of law van, Rs. 20,000/-besides two buffaloes. Smt. Chand Kaur is the mother of the deceased. Every young girl would try to confide in normal circumstances in her mother, if she is facing trouble in the house of her in-laws. This is specially expected on the part of an aggrieved woman. According to Smt. Chand Kaur, sufficient dowry was given to her daughter but the respondents were never satisfied with the dowry and always raised demands for more dowry. It has also come in the statement of Smt. Chand Kaur that two buffaloes were given. One second hand Maruti Van was also given and after some time an additional demand for Rs. 20,000/- was made and that demand was also met. Thus it can be safely said that the statement of Smt. Chand Kaur corroborates the statement of PW1 Shri Dalbir in all material particulars about the alleged maltreatment/harassment on the part of the in-laws of the deceased. Smt. Indira Wati (PW 4) has also stated that the accused used to harass the deceased for not bringing sufficient dowry. The deceased came to her parental house many times and complained about the harassment meted out to her by the accused. She further stated that two buffaloes were given at one time, then a Maruti Van and thereafter a cash amount of Rs. 50,000/- was given. No doubt there is discrepancy in the statement of Smt. Indira Wati with regard to the actual amount, but on such like discrepancies, which are trivial in nature, the story of the prosecution in its entirety cannot be thrown away. According to Section 498A of the Indian Penal Code, whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty, shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. ''Cruelty'' has also been defined in the said Section, which means (a) 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; 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. The consistent evidence led by the prosecution in the shape of PW 1, PW 2 and PW 4 leaves no manner of doubt that the deceased was subjected to cruelty within the meaning of Section 498A of the Indian Penal Code.

Now it is to be seen, who could possibly cause cruelty to the deceased. According to the case of the prosecution, the buffaloes, the amount and the Maruti Van were actually handed over to Shri Baljit, husband of the deceased. In these circumstances, he could normally be convicted u/s 498A of the Indian Penal Code irrespective of the fact that specific charge was not framed against him. This aspect of the case has been ignored by the learned Trial Court and it has caused serious prejudice to the complainant. The learned Trial Court committed patent illegality in not appreciating the evidence in the correct perspective.

In this view of the matter, the revision is allowed by giving directions to the Trial Court to re-examine the evidence and come to the conclusion whether the offence u/s 498A of the Indian Penal Code is made out qua Baljit Singh or not. Accused Shri Baljit Singh shall appear before the learned Trial Court on 1st October, 1998.

Nothing stated above, shall amount to expression of my opinion on the merits of the trial.