Ghansham Dass vs Punjab State

R.L. Anand, J.

This is a criminal appeal filed by Ghansham Dass, his father Balwant Raj and his mother Kailash Wati and has been directed against the judgement and order dated 22.9.1998, passed by the court of Additional District and Sessions Judge, Amritsar, who convicted the appellants u/ss 306 r/w S. 120B, IPC and sentenced them to undergo R.I. for a period of 10 years each and to pay a fine of Rs. 2000/ each; in default of payment of fine, they were directed to undergo R.I. for two months each.

The prosecution version, as per FIR, Ex. PG/2, which was recorded on the statement, Ex. PG, of the complainant Sham Lal Sharma son of Rulda Ram Sharma, resident of House No. 2221, Ward No. 7, Kurukshetra, is that the complainant originally hailed from village Ghanaur, Police Station Chheharta. He is a retired police Sub Inspector and is living in Kurukshetra. His daughter Neelam was married with Ghansham Dass son of Balwant Rai, resident of village Basekre Bhaini, on 5.5.1985. One daughter and one son were born to them. After two months of her marriage, Kailash Wati, motherinlaw (accused) of Neelam started maltreating her. The complainant had given dowry according to his capacity at the time of marriage of Neelam to Kailash Wati, motherin law, Balwant Rai, fatherinlaw and Ghansham Dass, husband of Neelam, who were not satisfied with the same and they were maltreating her. So much so, they administered poisonous thing to Neelam on account of which her face was swollen. The complainant got treated Neelam and also got her checked up from other persons. However, a compromise was got effected by the Panchayat. Ghansham Dass admitted his mistake before the family members of the complainant that he had given some poisonous thing to Neelam at the instance of his parents. The complainant was also helping Ghansham Dass at the asking of his daughter Neelam. On 25.6.1993, the complainant received a telephonic message from his younger soninlaw Keshav Chander son of Swaran Lal, resident of Ghanaur that Neelam has died. Neither Ghansham Dass nor his parents gave any information regarding the death of Neelam. The complainant with his sons Varinder Kumar and Satish Kumar reached Jawahar Nagar, Chheharta and saw Neelam lying dead in the courtyard of the house. Her nails had become bluish. The complainant suspected that Ghansham in connivance with his mother and father had killed Neelam by administering her some poisonous thing or Neelam committed suicide by taking some poisonous thing not tolerating the maltreatment of her husband, motherinlaw and fatherinlaw.

Further, the case of the prosecution is that ASI Ajit Singh along with other police officials was present in Partap Bazar, Chheharta in connection with patrol duty. He got information about the death of Neelam wife of Ghansham Dass and reached their house where the complainant had reached and he narrated the occurrence. ASI Ajit Singh recorded the statement, Ex. PG. of the complainant and made an endorsement, Ex. PG/1 and it was sent to the police station for the registration of the case, on the basis of which formal FIR, Ex. PG/2, was recorded. ASI Ajit Singh prepared the inquest report, Ex. PC, of the dead body and rough site plan, Ex. PH, of the place of occurrence and got postmortem conducted on the dead body of Neelam. Kailash Wati and Ghansham Dass were arrested on 29.6.1993. On 5.7.1993, DSP, Chheharta conducted inquiry and found Kailash Wati and Balwant Rai as innocent and, consequently, Kailash Wati and Balwant Rai were discharged in the case. On the completion of the investigation of the case, challan was presented only against Ghansham Dass in the court of the Area Magistrate, who supplied the copies of the documents to this appellant and committed him to the court of sessions vide commitment order dated 14.10.1993.

Earlier, the charge dated 23.2.1994 was framed u/s 306, IPC against Ghansham Dass alone, but later on, on the application of the prosecution u/s 319, Cr.P.C., both Balwant Rai and Kailash Wati were also summoned and a fresh charge dated 6.12.1995 was framed against them u/ss 306 r/w 120B, IPC. The charges were read over and explained to them to which they pleaded not guilty and claimed trial.

In order to prove the charges, the prosecution examined PW1 Sham Lal, complainant, who deposed as follows :

"After two months of the marriage, accused started harassing my daughter. Mother Kailash Wati and Balwant Rai father of the accused were also harassing my daughter. They were harassing her on account of bringing less dowry. After 45 months of the marriage, accused and his parents gave her poison as a result of which the face of my daughter was swollen. She was got treated from Civil Hospital, Amritsar. I took a panchayat to the house of then accused. The grandfather of the accused, Natha Ram, father of the accused and Janka Dodhi were also present there. They said that we should keep the boy happy. Accused was also called in the panchayat including his father and mother. In the panchayat they agreed to keep the girl but they did not come to take my daughter. The accused and his parents did not come to take my girl for rehabilitating her. After 10 days I went to the house of the accused alongwith my daughter and left her there. At the instance of my daughter, I used to help the accused. At one time, I gave Rs. 10,000/ for starting business at Panipat. Keshav Chander my soninlaw informed me on 25.6.1993 that Neelam had died."

About the statement of the complainant PW1, it may be commented upon at this stage that in the FIR, Ex.PG/2, there is not an iota of allegations that he ever gave Rs. 10,000/ for starting business at Panipat to his sonin law.

PW2 is Ashok Kumar, soninlaw of Sham Lal, complainant. As per this witness, the case of the prosecution was as follows :

"In the month of June, 1993, My brother Ramesh Kumar brought Neelam Rani deceased in a auto rickshaw to the taxi stand, which is at Chheharta chowk. She was alive at that time. She was in serious condition. I put her in my taxi and took her to Ranjit Hospital. She stated on the way that accused, his father and his mother had given her poison, and had also given her beatings. The doctor at Ranjit Hospital advised us to take Neelam Rani to the Emergency Ward. When we reached at Emergency Ward, she expired, then I took the deceased to the house of the accused. Sham Lal my fatherinlaw was residing at Kurukshetra. He was informed through telephone by Keshav Chander. There was a quarrel between accused and Neelam and that quarrel started just after the marriage. The accused and his mother said to me that Neelam was older in age than the accused. There was no other quarrel between the accused and the deceased to my knowledge."

At this juncture, it can only be stated that much reliance cannot be placed upon the statement of this witness because his statement is in direct contrast with the statement of the complainant. There is not an iota of the allegations in the statement of the complainant that the deceased made any statement before his soninlaw Ashok Kumar, to the effect that she has been given poison by the appellants nor there is any allegation in the FIR, Ex. PG/2, to the effect that the accused had ever taunted to the deceased that she was older to her husband Ghansham nor there is any allegation made by the complainant that the deceased told to her brotherinlaw (Jeeja) Ashok Kumar about this fact.

PW4 Satish Kumar is brother of the deceased and he deposed as follows :

"After two months of the marriage, accused Ghansham Dass, his father Balwant Rai and his mother Kailash Wati started illtreating my sister on account of demand of dowry. In the year 1987, when the son was born to my sister, accused Ghansham Dass has confessed that he had given poison to my sister at the instance of his mother and father. My brother Ashok Kumar and my mother Kailash Wati were also present at that time. Ghansham Dass told at that time that he will not repeat such act in future and he should be excused for that act. Thereafter we sent our sister with Ghansham Dass. Thereafter the accused present in court continued making demands for more dowry and when ever my sister visited us, they directed her to bring more dowry. In the year 1993 probably in the month of June, we received a telephone call that my sister Neelam had expired. Thereafter we came to Amritsar at 2 a.m. on the night intervening 25/26.6.1993."

The statement of this witness is also in direct contradiction with the statement of his father Sham Lal, who has not made any allegations in his statement either in court or before the police that the accused had been making demands for more dowry or that whenever his sister visited the house of her parents, she was directed by the parents to prove more dowry.

The I.O. in this case appeared as PW5 and Dr. Gurmanjit Rai, appeared as PW6, who conducted the postmortem examination on the dead body of Neelam on 26.6.1993 in the company of Dr. R.K. Gorea, and found the following four injuries on the dead body of Neelam :

"1. A reddish blue bruise 6 x 3 cms on the front and outer aspect of left upper arm in its middle obliquely placed.

On dissection infiltration of blood was present on the soft tissues.

Reddish blue bruise 8 cms x 3 cms present on the front of left thigh. Upper onethird and iliac region of abdomen obliquely placed.

On dissection, infiltration of blood was present.

Reddish blue bruise 6 x 3.5 cms present on the front and outer aspect of right thigh in its middle obliquely placed.

On dissection clotted blood was present in the soft tissues.

Reddish abrasion 3 x 1.5 cms on the front of left forearm in its lower onethird. Membranes and brain were found congested. Pleura both lungs were found congested. Stomach contained about 250 C.C. of dark coloured fluid food and was found congested. Small intestine, liver, spleen and kidneys were found congested. Uterus was found empty."

The cause of death in this case was deferred till the receipt of the report of viscera. Ex.PA is the correct carbon copy of the postmortem report and Ex. PA/1 is the pictorial diagram showing the seats of the injuries on the body of the deceased. Ex. PB is the police request on the basis of which post mortem was conducted. On receipt of the report of the Chemical Examiner on 23.9.1993, the cause of death was declared to be due to Aluminium Phosphide poisoning and intimation was sent to the SHO, Police Station Chheharta vide letter, Ex.PD. This doctor also opined that injuries No. 1 to 4 on the body of the deceased were antemortem in nature. Aluminium Phosphide was sufficient to cause death in the ordinary course of nature. Further, it was opined by this doctor that injuries No. 1 to 4 were caused by a blunt weapon within a duration of 24 hours.

On the closure of the prosecution evidence, the statements of the accused were recorded u/s 313, Cr.P.C., and all the incriminating circumstances appearing in the prosecution evidence were put to the accused. Accused denied those circumstances and stated that they were innocent. Separate written statements were filed on behalf of the accused and the stand taken up by Ghansham Dass was that he was living separately and his wife had fallen from the stair as she had gone to the roof to spread clothes, for drying. On 25.4.1993, he had gone to Amritsar and when he returned his wife was vomitting and told that she took some poisonous thing by mistake.

The stand of Balwant Rai and Kailash Wati was unanimous that they were not residing with their son Ghansham Dass and that they were not even on visiting terms at the house of their son.

When called upon to enter into their defence, the accused examined Shingara Singh, DW1 and Surinder Singh, SP (Hqrs.) as DW2 as this witness had exonerated Balwant Rai and Kailash Wati during the course of investigation but in the crossexamination it has been admitted by him that he did not join the complainant party in the investigation.

The learned trial court believed the prosecution story and convicted and sentenced the appellants in the manner as stated above and aggrieved by their conviction and sentence, the present appeal.

I have heard Mr. V.K. Chaudhari, Advocate, on behalf of the appellants and Mr. S.S. Randhawa, DAG, Punjab, on behalf of the respondent and with their assistance have gone through the record of this case.

The appellants were convicted for the offence u/s 306, IPC. Section 306, IPC, lays down that 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.

The word `abetment'' is of consequence in the present case. In order to sustain conviction, the proof that the deceased committed suicide is a condition precedent. Abetment has been defined u/s 107, IPC, and it lays down that a person abets the doing of a thing, who, firstly, instigates any person to do that thing; or secondly, ...........; or thirdly, intentionally aids, by any act or illegal omission, the doing of that thing. Before a person is convicted u/s 306, IPC, it has to be shown by the prosecution that the alleged act of abetment and its consequences have a direct nexus. Abetment can be proved by direct evidence and even by circumstantial evidence. If a husband or his family members create such a surcharged atmosphere in the family or they had been nagging the deceased or consistently cause her mental and physical cruelty, it would amount of slow poisoning, which would ultimately amount to abetment. However, all these factors are supposed to be proved by the prosecution before it can secure conviction u/s 306, IPC. There is a very clear distinction between sections 498A and 306, IPC. Mere solitary act of cruelty may not come within the purview of section 306, IPC. In this case, the death of Neelam had taken place beyond 7 years and, therefore, the presumption u/s 113A of the Evidence Act is not attracted. The evidence of the relations and the story of the prosecution as propounded indicates that the deceased was maltreated immediately after her marriage. At one point of time, according to the prosecution, she was administered a poisonous substance but there is no documentary evidence to suggest that any criminal case was registered against the appellants. Also, the allegations of the prosecution are barren to the extent that Neelam was subjected to such a treatment that the cumulative effect of such treatment amounted to abetment. In this view of the matter, I am of the opinion that the trial court was not justified in convicting the appellants u/s 306, IPC.

Now, I have to see whether the appellants can be convicted for the offence u/s 498A, IPC or not. Section 498A, IPC, lays down that 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 explained in this very section which means 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 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.

A reading of the evidence would show that the ingredients of section 498A, IPC, are fully attracted in this case. It is the consistent case of the prosecution that the deceased was subjected to cruelty and harassment was caused to her. Also, it is the case of the prosecution that the complainant had been helping his soninlaw. The deceased in this case was married on 5.5.1985. She had given birth to two children; one son and one daughter. She had died in the house of the accused under abnormal circumstances. As per the report of the Board of Doctors, there were four injuries on her person which clearly indicate that the deceased was subjected to maltreatment immediately before her death. This act on the part of the accused falls within the definition of abetment. I am of the opinion that all the appellants, though not guilty for the offence u/s 306, IPC, but definitely they are guilty for the offence u/s 498A, IPC.

The learned counsel for the appellants submitted that Balwant Rai and Kailash Wati were found innocent during the course of investigation. Moreover, they were not residing with their son Ghansham Dass and, in these circumstances, the offence u/s 498A, IPC, against them is not proved.

I do not subscribe to the argument raised by the learned counsel for the appellants. The gazetted officer had not associated the complainant party in the investigation. The opinion of the Investigating Agency is not binding on the law courts. The substantive evidence is very categorical involving Balwant Rai and his wife Kailash Wati. They are close relations of Ghansham Dass. The relations of the deceased in such like cases are the best witnesses to depose about the affairs in the matrimonial home. The deceased had four injuries on her person, which were caused within 24 hours of her death, clearly indicating that she was subjected to maltreatment. It is the case of the prosecution throughout that Ghansham Dass had been maltreating the deceased at the behest of his parents. In this view of the matter, I am inclined to convict the appellants u/s 498A, IPC.

Accordingly, Ghansham Dass is sentenced to undergo RI for 3 years and he shall pay a fine of Rs. 2,000/; in default of payment of fine he shall further undergo RI for 9 months.

The learned counsel for the appellants submitted that Balwant Rai and Kailash Wati may be visited with leniency in the matter of sentence as they are old persons and have a young daughter to marry.

I am of the opinion that the ends of justice will suffice if Balwant Rai and Kailash Wati are sentenced to undergo RI for 2 years each and to pay a fine of Rs. 2,000/ each; in default of payment of payment of fine to further undergo RI for six months, and order accordingly.

The appeal stands partly allowed.