Jitendra Kumar Durge and Others vs State of Chhattisgarh

Pritinker Diwaker, J.—This appeal has been preferred against the judgment and order dated 08.02.2008 passed by Additional Sessions Judge, North Bastar (Kanker), in Sessions Trial No. 46/2007 holding the accused/appellants guilty u/s 304-B IPC and sentencing him to undergo rigorous imprisonment for seven years. Facts of the case in brief are that marriage of deceased namely Prakruti Bala @ Priti @ Choti was solemnized with accused/appellant No. 1 - Jitendra Kumar Durge on 06.06.2006 at Bhilai and on 09.11.2006 she committed suicide in her matrimonial house by hanging herself. Merg intimation Ex. P-10 was given by accused/appellant No. 1 on that day itself and after merg enquiry F.I.R. Ex. P-13 was registered on 10.11.2006 against all the accused/appellants u/s 304-B/34 IPC.

So as to hold the accused/appellants guilty, prosecution has examined 08 witnesses. Statements of the accused/appellants were also recorded u/s 313 of the Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case. This apart, one Smt. Vimla Sharma (DW-1) has also been examined by the defence in support of its case.

After hearing the parties, the trial Court convicted and sentenced the accused/appellants as mentioned in paragraph No. 1 of this judgment. Hence, this appeal.

Counsel for the accused/appellants submits that conviction of the accused/appellants rests on the suicidal note of the deceased vide Article A-40 which has not been duly proved by the prosecution in accordance with law. He submits that there is no evidence on record to show that the so called letter of the deceased Article A-40 was written by her and the possibility of false implication of the accused/appellants based on the letter written by someone else cannot be ruled out. He submits that no hand writing expert has been examined by the prosecution in the absence of which the said letter has no value in the eyes of law. He submits that even if the said letter is accepted, there is no allegation by the deceased against any of the accused/appellants in respect of demand of dowry and therefore, they cannot be convicted u/s 304-B IPC. He submits that in the letter Article A-40, there is no allegation atleast against appellants NO. 2 and 3 and therefore, they cannot be convicted for any offence. According to him, oral evidence adduced by relatives of the deceased is highly unreliable because there are material contradictions and omissions in the same. He submits that mother, father, brother and uncle of the deceased have exaggerated their version by deposing against the accused/appellants and they being the interested witnesses, their statements have to be ignored.

On the other hand, counsel for the respondent/State submits that the suicidal note Article A-40 has been duly proved by the prosecution and it was tallied with the hand written register Ex. D-4 maintained by the deceased. He submits that report of the hand writing expert Ex. P-24 is on record from which it is apparent that the said letter was written by the deceased. He submits that none of the witnesses has been cross examined so as to falsify the suicidal note of the deceased. He submits that the said letter Article A-40 containing 13 pages the deceased has given elaborate instances right from the date of settlement of her marriage till the date when she committed suicide and the manner in which she has described the cruelty makes it clear how she was dealt with by the appellants in particular appellant No. 1. He fairly submits that in the suicidal note, there is no allegation against the appellants for demand of dowry but very specific allegation has been leveled by the deceased against her husband (appellant No. 1 herein) and in some places, she has also made an allegation against her mother-in-law (appellant No. 3 herein) that she was compelling her for abortion. He further submits that on the basis of oral evidence adduced by the prosecution it is apparent that the deceased was subjected to cruelty for demand of dowry by the appellants. Minor contradictions and omissions in these statements of the prosecution witnesses, according to the State counsel, have to be ignored by the Court particularly when within five months of marriage, she was subjected to cruelty by the accused/appellants which ultimately made her to commit suicide.

Heard counsel for the parties and perused the documents available on record.

Madan Singh Turkane (PW-1) -father of the deceased has stated that the marriage of his daughter (the deceased) was solemnized with accused/appellant Durgesh on 6.6.2006 and that in the marriage he had given almost all the household articles apart form gold and silver ornaments and cash. After marriage the deceased visited his house at Bhilai on 8.6.2006 with her husband and got back on the next day there-from. Thereafter on 9.7.2006 he along with his brother and other relatives went to the matrimonial house of the deceased and on the same they returned to Bhilai along with the deceased. While leaving for Bhilai, his son-in-law had asked him to send back the deceased after 15 days there-from. According to this witness, as after three days his son-in-law informed him on telephone that his mother was ill, he sent the deceased back with her brother and then he used to have talk with her time to time on phone and that on the occasion of Rakhi festival the deceased and her husband visited his house on 14.8.2006 and after leaving the deceased at his house, his son-in-law got back and then three days thereafter he again came back and took the deceased with him and thereafter she never turned up to his house. He has further stated that the deceased was not happy in her matrimonial house and the accused/appellants were not permitting her to get out of the house without being accompanied with others. According to this witness when his son-in-law visited his house, he requested him to go to Andaman to get a changed atmosphere but he had refused for that. Thereafter he made the same request to the father of his son-in-law (accused/appellant No. 2 herein) but he had also not permitted the same saying that his son was not granted leave. Whenever the deceased used to talk to him on telephone, she informed him about the demand of a vehicle being raised by the accused/appellants taunting her saying that in spite of her father being posted in Bhilai Steel Plant even a vehicle was not given. The deceased also informed him about her pregnancy test which proved positive but the accused/appellants were not happy with the same. Once her mother-in-law (accused/appellant No. 3 herein) had even administered certain medicines on her to terminate pregnancy saying that as to why she wanted to procreate children so early. On 15.09.2006, while he was in Andaman, he received a telephonic message from his son that the deceased was not keeping well and she was to be taken to Bhilai for treatment. He thereafter told his brother Shraddhanand on phone about the illness of his daughter, who in turn went to Kanker and requested father-in-law of the deceased to accompany him to Bhilai with the deceased but he refused for the same. On 27.09.2006 when he returned to Bhilai, he requested accused/appellants No. 1 & 2 herein to send the deceased to Bhilai as his wife sustained fracture in leg. On 24.1.2006, when he visited Kanker to see his daughter, his daughter and the son-in-law both were not there and he was told by accused/appellant No. 2 herein that the deceased was taken to Dhamtari for treatment. On the same day, at about 4.30 p.m. his daughter and son-in-law returned back and after touching his feet the deceased went inside her room without talking to him and that her face was gloomy at that time. On 25.10.2006, he received a telephonic call from the deceased and she told him about the termination of her pregnancy and resultant weakness. This witness has further stated that 2-3 days thereafter he talked to his daughter and asked her to lodge a report in respect of termination of her pregnancy at the hands of the accused/appellants but she told him that after all she was to live with them and therefore no useful purpose would be served in doing so. On 09.11.2006, the deceased told her mother that the accused/appellants were not eating the food prepared by her. Thereafter on the same day when this witness rang the deceased up, nobody attended the phone on which his wife got perturbed and asked him to go to Kanker. Thereafter, at about 6.00 p.m., his elder daughter informed him on phone that they were called by the deceased to her matrimonial house. Then at about 6.20 p.m. when he had a talk with the accused/appellant No. 2 herein, he also told him to come down to Ranker but he did not tell him the reason for that. Thereafter, when he, his wife and other relatives reached Kanker at about 3.00 a.m. the house, they found that the house of the accused/appellants was sealed and the police people were guarding the situation. After the seal of the house was broken, they entered therein and saw that the dead body of the deceased was hanging with the ceiling fan. Notice of inquest Ex. P-1 was given and then inquest Ex. P-2 was made. He has further stated that in presence of all the witnesses, number of articles such as CD, diary, invitation card of marriage, 7-8 greeting cards and letter of the deceased running in 13 pages were seized from the room of the deceased and seizure memo was prepared. He has clarified as to in what manner the documents were seized by the police. Though there appear to be minor contradictions and omissions in the statement of this witness, they being not that much significant to the case of the prosecution have to be ignored. This witness has also admitted that after marriage deceased made an attempt to commit suicide twice and when he asked her as to why she had made the said attempt, she told him that that as the appellants were subjecting her to cruelty and doubt her character; she wanted to end her life. From cross examination of this witness it appears that an attempt was made to prove the fact that suicidal note Article A-40 was not in the hand writing of the deceased.

Smt. Shashikala Turkane (PW-2) - mother of the deceased has made almost similar statement as that of her husband (PW-1) and In respect of demand of dowry she has stated that the deceased had informed her that the appellants used to pass taunt on her saying that sufficient dowry was not given and they used to ask her to get the car from her father as he was working in Bhilai Steel Plant. Deceased also informed her that the appellants used to doubt her character and harass her.

Pravin Bambesar (PW-3) - uncle of the deceased has stated that after marriage twice the deceased visited her parental house and on being enquired by him she told him that she was subjected to mental torture and abuses. He has stated that even the character of the deceased was doubted and that she informed him that a car was demanded. Shraddhanand Turkane (PW-4) - another uncle of the deceased has stated that when he met the deceased, she informed him that the appellants were not as such as they appeared to be. On the occasion of Rakhi festival when the deceased came to Bhilai and met him, she informed him that members of her matrimonial house were demanding four-wheeler. According to him, he also came to know about the ailment of the deceased and when he talked to her, she told him that she was suffering from stomachache. He has stated that the appellants were doubting her character and one occasion when he visited the matrimonial house of the deceased, he came to know that she was subjected to cruelty by the accused/appellants and that on the date of incident when he reached Kanker he saw that the dead body of the deceased was hanging. Various documents were seized in the presence of this witness vide Articles A-1 to A-40 including diary, mobile, greetings and the documents related to her ailment. Dr. M.A. Naseem (PW-5) who conducted the post mortem examination on the body of the deceased and gave his report Ex. P-9 opining the cause of death to be asphyxia. B.R. Thakur - Naib Tehsildar (PW-6) is the witness in whose presence in question was made and house of the accused/appellants was sealed. Pramila Mandavi (PW-7) is the witness who recorded the merg intimation Ex. P-10 and FIR Ex. P-13 and did part of investigation. Prakhar Pandey (PW-8) is the witness who proceeded further with the investigation. Smt. Vimla Sharma (DW-1) has stated that on 12.9.2006 she had verified the affidavit sworn by the deceased in the capacity of notary.

In the case in hand, apart from oral evidence adduced by the relatives of the deceased, most important piece of evidence is that suicidal note (Article A-40) written by the deceased on 9.11.2006 which was sized from the almirah of the deceased vide seizure memo Ex. P-3. In this letter written to her mother and father, she has described her matrimonial life giving details from the date of her engagement till the date she committed suicide. From the said letter it appears that from the beginning the husband of the deceased (appellant No. 1 herein) used to doubt her character and torture her. She has given the instances that even when she used to talk to her brothers and other relatives, her husband used to object to the same and was having doubt that she was having relations with those persons. It also appears from the said letter that doubting her character accused/appellant No. 1 used to watch her activities very closely and call her to ensure as to where she was. The letter further reflects that even when the deceased used to go somewhere, accused/appellant had doubt in his mind that she had gone somewhere for illicit relations. Evidence further goes to show that after doubting her character, on number of occasions accused/appellant No. 1 did not talk to her and used to react badly. From the letter it further appears that accused/appellant No. 1 used to taunt and insult her for various reasons, ask her as to why she looked at other male members and hurled filthy abuses at her. At one place, the deceased has mentioned that when accused/appellant No. 1 abused her, she heard such abuses for first time in her life as a result of which she was completely broken. Even her husband did not like her watching TV and going to the house of her neighbours. From the evidence it is apparent that earlier also looking to the pathetic act of her husband, she made an attempt to commit suicide by consuming poison but unfortunately she could not succeed. She has further mentioned that when she became pregnant, after hearing this news accused/appellant No. 1 got annoyed with her and asked for abortion. The accused/appellant No. 1 also gave her certain medicines for abortion and when nothing happened, she was taken to hospital where the doctor had asked her about her readiness for the same to which replied in negative but she was compelled by accused/appellant No. 1 for abortion. The evidence further goes to show that the news of her pregnancy was welcomed by her parents and brothers whereas the attitude of the accused/appellant on hearing the said news was totally inhumane who compelled her for abortion. Other instances have also been given by the deceased in her letter which this Court does not think necessary to mention elaborately. However, the letter written by the deceased makes it clear that her life was made a hell by accused/appellant No. 1 where she was left with no other option but to end her life. In this letter, deceased has described as to in what manner she was dealt with by accused/appellant but she is nowhere stated that she was subjected to cruelty for dowry. Further, in the entire letter there is no mention of accused/appellant No. 2 i.e. father-in-law of the deceased nor any allegation whatsoever has been made against him. In respect of accused/appellant No. 3 i.e. mother-in-law of the deceased, at some places the deceased appreciated her act whereas at one place she has stated that she had asked her to for abortion on account of her physically weak condition.

The oral evidence of the witnesses is required to be seen in the light of suicidal note Article A-40 written by the deceased. In the entire suicidal note there is no allegation against father-in-law of the deceased (appellant No. 2 herein). Even against her mother-in-law (appellant No. 3 herein) at some places the deceased has appreciated her behaviour and only at one place she has stated that she had asked her for abortion that too looking to her physical weakness. Had the deceased been subjected to cruelty for demand of dowry by appellants 2 and 3 herein as well, she would have certainly given the details of the same in her suicidal note. Thus taking into consideration the contents of the suicidal letter (Article A-40) as it is, no offence whatsoever is made out against the father-in-law and mother-in-law of the deceased (appellants 2 and 3 herein).

There is no allegation against accused/appellant No. 1 herein (husband of the deceased) that he was subjecting her to cruelty or harassment for dowry. As none of the witnesses has stated that soon before death, accused/appellant No. 1 had harassed or subjected the deceased to cruelty for or in connection with demand of dowry, provisions of Section 304-B IPC are not attracted to the case in hand. Section 304-B IPC is reproduced as under:

304B. Dowry death. - (1) Where the death of a worffan is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death" and such husband or relative shall be deemed to have caused her death.

Explanation. - For the purpose of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

From the tenor of the letter written by the deceased it can be gathered that the deceased was subjected to cruelty by her husband where he used to say that he would have no objection if she put an end to her life. Thus looking to the evidence on record at the most the act of accused/appellant No. 1 would amount to abetment as defined u/s 107 of the IPC. To have a ready reference, the said provision is reproduced as under:

Section 107. 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 aids, by any act or illegal omission, the doing of that thing.

Explanation 1. - A person who, by willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, 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 facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.

Thus if the evidence against the accused/appellant No. 1 and the ingredients of Section 107 IPC are seen together, at the most his act in persistently asking the deceased to go for abortion and saying that he would have no objection if she goes and dies, would fall u/s 306 IPC.

This Court finds no force in the argument of the counsel for the appellants that as hand writing expert has not been examined by the prosecution, the suicidal note Article A-40 cannot be considered to be a valid piece of evidence in the eye of law. Report of the hand writing expert Ex. P-24 is on record which is based on the suicidal note and the register written in the hand writing of the deceased. Mere non examination of the hand writing expert will not nullify the entire report especially when, father, mother and uncle of the deceased have categorically deposed that suicidal note was written by the deceased herself. Thus the accused/appellant cannot take any advantage of non examination of the hand writing expert and if they were so aggrieved, they could have called the said hand writing expert as a defence witness.

In the result, the appeal partly succeeds. Looking to the contents of the suicidal note Article A-40 written by the deceased, accused/ appellants No. 2 and 3 i.e. father-in-law and mother-in-law of the deceased are entitled for benefit of doubt and that being so they stand acquitted of the charge levelled against them. As regards appellant No. 1 (husband of the deceased), since there is no allegation that he subjected the deceased to cruelty for demand of dowry, his conviction u/s 304-B IPC would not be sustainable in the eye of law, rather looking to the allegations made against him he can be and is hereby convicted u/s 306 IPC. The sentence imposed on the accused/appellant by the Court below is rigorous imprisonment for seven years which according to this Court is just and proper and looking to the heinous act on his part it is not required to be reduced. The appeal thus succeeds in part as indicated above.