Itwari and others vs State of Chhattisgarh

Radhe Shyam Sharma, J.—This appeal is directed against judgment dated 30-11-2004 passed by Additional Sessions Judge, Khairagarh in Sessions Trial No. 136/2004. By the impugned judgment, accused persons/appellants Itwari, Neminbai, Maniklal and Mankunwar Bai have been convicted u/s 4 of the Dowry Prohibition Act, 1961 and Sections 498A and 306 of the Indian Penal Code and sentenced in the following manner with a direction to run the sentences concurrently:

Appellant No. 2 Neminbai died during pendency of this appeal, therefore, vide order dated 21-4-2011, her name has been removed from the array of cause-title.

Case of the prosecution, in brief, is as under:

Deceased Jashodabai was married to appellant Maniklal on 18-5-1997. After her marriage, the appellants were asking her to bring T.V., Motor Cycle, Sewing Machine in dowry from her maternal house and for that they were committing Marpeet with her, abusing her and she was being treated with cruelty. They were also treating her with cruelty on the ground of her non-producing any child. For these reasons, she had consumed poison and she died at Village Singarpur on 14-3-2004 at 2 P.M. Appellant Itwari informed the incident in Police Station Gandai on the same day at about 7 P.M. on which Merg Intimation No. 5/2004 was recorded.

During investigation, Inquest on dead body of the deceased was prepared vide Ex. P-13. Dead body of the deceased was sent to Government Hospital, Chhuikhadan for post mortem examination. Dr. Ashok Khare (PW-7) conducted post mortem examination on the dead body of the deceased and gave his report (Ex. P-14), in which, he found that cause of death of the deceased was poisoning (probably organophospherus) leading to cardio-respiratory failure.

In further investigation, an inland letter (Ex. P-2) written by the deceased to Santosh Kumar, Rekha on 18-2-1999, another inland letter (Ex. P-4) written by the deceased to Guharam (PW-5) and Santosh Kumar on 28-4-1999 and another inland letter (Ex. P-3) written by the deceased to Guharam (PW-5) were seized vide Ex. P- 1. A marriage card (Ex. P-6), a letter (Ex. P-9) written by appellant Itwari in the name of society on a ruled paper, a letter (Ex. P-8) written by the deceased on a ruled paper on 29-4-2000 and another letter (Ex. P-7) written by the deceased addressing elder persons of Village Amaldiha on a ruled paper were, on producing by the father of the deceased, seized vide Ex. P-5. An old register was seized vide Ex. P-10. Site-Map was prepared by Head Constable Ashok Kumar Mishra (PW-4) vide Ex. P-12. First Information Report was registered in Police Station Gandai vide Ex. P-16.

After completion of the investigation, charge-sheet was filed against the accused persons in the Court of Additional Chief Judicial Magistrate, Khairagarh, who, in turn, committed the case to the Court of Session at Rajnandgaon, from where it was received on transfer by the learned Additional Sessions Judge, Khairagarh, who conducted the trial and convicted and sentenced the appellants as mentioned above.

Shri Rakesh Pandey, learned counsel for the appellants argued that Milauram (PW-1), Harish Naik (PW-2) and Gangaram (PW-3) are closed friends of Guharam (PW-5), who is father of the deceased. They are highly interested witnesses. The prosecution failed to prove that the deceased was subjected to cruelty or harassment by the appellants in connection with any demand for dowry. The provision of Section 113A of the Evidence Act is not applicable in this case. The prosecution has not established that prior to the death of the deceased, she had been either subjected to cruelty or harassment or for any demand of dowry. Evidence in this respect is wholly insufficient to convict the appellants. Looking to the letters (Ex. P-7 and P-9) and proceeding of panchayat (Ex. P-11), it appears that the deceased used to leave the matrimonial house many times wilfully. It appears that the incident took place on 14-3-2004 and FIR (Ex. P-16) was lodged on 29-3-2004, i.e., after 15 days of the death of the deceased. The prosecution has utterly failed to establish the ingredients of Section 4 of the Dowry Prohibition Act and Sections 498A and 306 of the Indian Penal Code. Therefore, the appellants deserve to be acquitted of the charges framed against them.

Smt. Madhunisha Singh, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Additional Sessions Judge do not warrant any interference by this Court.

Having heard rival contentions of the parties, I have perused the record of Sessions Trial No. 136/2004. The conviction of the appellants u/s 4 of the Dowry Prohibition Act and Sections 498A and 306 of the Indian Penal Code are based on the evidence of Guharam (PW-5), Smt. Dhelabai (PW-6), Milauram Sahu (PW-1) and Harish Naik (PW-2).

It is not disputed that the marriage of the deceased was performed with appellant Maniklal in the year 1997 and the deceased died on 14-3-2004. It is also not disputed that the death of the deceased was otherwise than under normal circumstances.

In Gurbachan Singh Vs. Satpal Singh and others, 5, the Hon''ble Supreme Court observed as follows:

It is also convenient to refer in this connection to the provisions of Section 113A of Indian Evidence Act, 1872 which provide that:

113-A. 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 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.

It has been contended on behalf of the accused-respondents that Section 113A of the Indian Evidence Act was inserted in the statute book by Act 46 of 1983 whereas the offence u/s 306, IPC was committed on June 23, 1983 i.e. prior to the insertion of the said provision in the Indian Evidence Act. It has, therefore, been submitted by the learned counsel for the respondents that the provisions of this section cannot be taken recourse to while coming to a finding regarding the presumption as to abetment of suicide committed by a married woman, against the accused persons.

The provisions of the said section do not create any new offence and as such it does not create any substantial right but it is merely a matter of procedure of evidence and as such it is retrospective and will be applicable to this case. It is profitable to refer in this connection to Halsbury''s Laws of England, Fourth Edition, Volume 44 page 570 wherein it has been stated that:

The general rule is that all statutes, other than those which are merely declaratory or which relate only to matters of procedure or of evidence, are prima facie prospective, and retrospective effect is not to be given to them unless, by express words or necessary implication, it appears that this was the intention of the legislature...

It has also been stated in the said volume of Halsbury''s Laws of England at page 574 that:

The presumption against retrospection does not apply to legislation concerned merely with matters of procedure or of evidence; on the contrary, provisions of that nature are to be construed as retrospective unless there is a clear indication that such was not the intention of Parliament.

In M. Mohan Vs. The State represented by The Deputy Superintendent of Police, the Hon''ble Supreme Court observed as follows:

''Abetment of a thing'' has been defined u/s 107 of the Code. We deem it appropriate to reproduce section 107, which reads as under:

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 or illegal omission takes places in pursuance of that conspiracy, and in order to the doing of that thing; or

Thirdly--Intentionally aides, by any act or illegal omission, the doing of that thing.

"Explanation 2 which has been inserted alongwith section 107 reads as under:

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

Learned counsel also placed reliance on yet another judgment of this court in Ramesh Kumar Vs. State of Chhattisgarh, ), in which a three-Judge Bench of this court had an occasion to deal with the case of a similar nature. In a dispute between the husband and wife, the appellant-husband uttered "you are free to do whatever you wish and go wherever you like". Thereafter, the wife of the appellant Ramesh Kumar committed suicide. This Court in paragraph 20 has examined different shades of the meaning of ''instigation''. Para 20 reads as under:

Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect, or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.

In the said case this court came to the conclusion that there is no evidence and material available on record wherefrom an inference of the accused-appellant having abetted commission of suicide by Seema (appellant''s wife therein) may necessarily be drawn.

In State of West Bengal Vs. Orilal Jaiswal and another, ), this Court has cautioned that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it appears to the Court that a victim committing suicide was hyper-sensitive to ordinary petulance, discord and difference in domestic life, quite common to the society, to which the victim belonged and such petulance, discord and difference were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.

This court in Chitresh Kumar Chopra Vs. State (Govt. of NCT of Delhi), , had an occasion to deal with this aspect of abetment. The court dealt with the dictionary meaning of the word "instigation" and "goading". The court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person''s suicidability pattern is different from the others. Each person has his own idea of self-esteem and self-respect. Therefore, it is impossible to lay down any straight-jacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances.

Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained.

The intention of the Legislature and the ratio of the cases decided by this court are clear that in order to convict a person u/s 306, IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/she committed suicide.

In Chitresh Kumar Chopra Vs. State (Govt. of NCT of Delhi), the Hon''ble Supreme Court observed as follows:

As observed in Ramesh Kumar Vs. State of Chhattisgarh, where the accused by his acts or by a continued course of conduct creates such circumstances that the deceased was left with no other option except to commit suicide, an "instigation" may be inferred. In other words, in order to prove that the accused abetted commission of suicide by a person, it has to be established that:

(i) the accused kept on irritating or annoying the deceased by words, deeds or willful omission or conduct which may even be a willful silence until the deceased reacted or pushed or forced the deceased by his deeds, words or willful omission or conduct to make the deceased move forward more quickly in a forward direction; and

(ii) that the accused had the intention to provoke, urge or encourage the deceased to commit suicide while acting in the manner noted above. Undoubtedly, presence of mens rea is the necessary concomitant of instigation.

Guharam (PW-5) and Smt. Dhelabai (PW-6) deposed that deceased Jashodabai was daughter of Guharam (PW-5). Her marriage was performed with appellant Maniklal in the year 1997. Guharam (PW-5) deposed that Jashodabai died on 14-3-2004. He further deposed that upto 6 months of performance of her marriage, Jashodabai lived happily in her matrimonial house. Thereafter, the appellants began to taunt her and commit Marpeet with her. They began to make demand of T.V.

Smt. Dhelabai (PW-6) deposed that whenever deceased Jashodabai came to her maternal house, she told her that her father-in-law, mother-in-law and sister-in-law used to make demand of T.V., Almirah and Motor Cycle. They also used to harass her on account of her delivering no child.

Milauram Sahu (PW-1) deposed that in the year 1999, Guharam (PW-5) had told him that father-in-law of the deceased was demanding T.V. and, therefore, Guharam (PW-5) had borrowed a sum of Rs. 10,000/- from him for the father-in-law of the deceased. Guharam (PW-5) deposed that her daughter (the deceased) had written a letter to him, therefore, he had called for a panchayat meeting. In the panchayat meeting, deceased Jashodabai was inculcated and asked to go back to her matrimonial house. A fine of Rs. 1,700/- was also imposed upon appellant Itwari, father-in-law of the deceased in the said panchayat meeting.

Guharam (PW-5) deposed that appellant Itwari had demanded a sewing machine. He further deposed that deceased Jashodabai had written a letter to him for sewing machine in the month of December, 2002 or January, 2003. He further deposed that police had seized inland letters (Ex. P-2 to Ex. P-4) from him vide Ex. P-1. N.K. Bental (PW-8) deposed that he was posted as Station House Officer at Police Station Gandai. During investigation, he seized three inland letters (Ex. P-2 to Ex. P-4) from Guharam (PW-5) vide Ex. P-1.

S.D.O. (Police) Vivek Shukla (PW-9) deposed that he had made seizure of papers (Ex. P-7, P-8 and P-9) vide Ex. P-5. He further deposed that on 27-4-2004, he had seized a panchayat register (Ex. P-11) from Jhaduram Netam vide Ex. P-10.

Now, I shall examine whether the deceased was subjected to cruelty or harassment by the appellants for dowry or the appellants kept on irritating or annoying the deceased by words, deeds or willful omission or conduct which pushed or forced the deceased to commit suicide ?

Guharam (PW-5) deposed that it is true that land of Village Singarpur was being looked after by deceased Jashodabai and her husband, i.e., appellant Maniklal. He further deposed that there is no tradition of dowry in their community.

Relevant portion of an inland letter (Ex. P-3) written by deceased Jashodabai to her father Guharam (PW-5) is extracted below:

Relevant portion of another letter (Ex. P-8) written by deceased Jashodabai is extracted below:

Ex, P-11 is a panchayat proceeding, in which, it is mentioned as under:

From perusal of the letters available on record and Ex. P-11, it appears that the deceased was being harassed by the appellants. It is proved that the appellants had intention to provoke, urge or encourage the deceased to commit suicide.

Now, I shall examine whether the appellants demanded dowry from the deceased?

From perusal of letters (Ex. P-2 and P-3), it does not appear that there was any demand of dowry by the appellants. Even the letters (Ex. P-7, P-8 and P-11) do not indicate that there was any demand of dowry by the appellants. Therefore, cruelty and harassment by the appellants were not in connection with any demand of dowry. Therefore, the appellants cannot be convicted u/s 4 of the Dowry Prohibition Act, 1961.

The conclusion arrived at by the learned trial Judge regarding conviction of the appellants under Sections 498A and 306 IPC is impeccable and does not call for any interference by this Court.

So far as sentence u/s 306 IPC is concerned, the learned trial Judge has awarded maximum sentence to the appellants thereunder. Section 306 IPC runs as follows:

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.

Looking to the facts and circumstances of the case, the jail sentence awarded by the learned trial Judge u/s 306 IPC is harsh. I am of the view that ends of justice would be served if the appellants are sentenced with rigorous imprisonment for 5 years only. The sentence awarded for the offence u/s 498A IPC does not call for any interference. In the result, the appeal is partly allowed. The conviction and sentence awarded to the appellants u/s 4 of the Dowry Prohibition Act, 1961 are set aside. The appellants are acquitted of the offence u/s 4 of the Dowry Prohibition Act, 1961. The conviction and sentence awarded to the appellants u/s 498A IPC are affirmed. The conviction of the appellants u/s 306 IPC is affirmed and they are sentenced with rigorous imprisonment for 5 years only. The jail sentences shall run concurrently. The appellants shall surrender before the trial Court to serve remaining sentence, if any.