Naveen Kumar vs State of Haryana

R.L. Anand, J.

This is a criminal appeal filed by Naveen Kumar, husband of Promila, deceased, and Smt. Navita, younger sister of the husband of Promila, and has been directed against the judgment dated 15.12.1997 and order dated 17.12.1997, passed by the court of Additional District and Sessions Judge, Jind, who convicted the appellants u/ss 304B/34, 498A, 201, IPC, and sentenced them to undergo RI for a period of 2 years each u/s 498A, IPC. The appellants were further directed to pay a fine of Rs. 200/ each; in default of payment of fine, they were directed to undergo RI for one month each. Both the appellants were further sentenced u/s 304B/34, IPC, and sentenced to undergo RI for a period of 7 years each. Further, u/s 201, IPC, the appellants were sentenced to undergo RI for 2 years each and to pay a fine of Rs. 200/ each; in default of payment of fine, they were directed to undergo RI for one month each. All the substantive sentences were ordered to run concurrently.

The crude facts of the case are as under :

Unfortunate lady in this case who died in the house of her husband on 10.10.1994 was Promila. She was married with Naveen Kumar, appellant, on 30.5.1993 and out of this wedlock no child was born. The cause of death of Promila could not be determined as there was no postmortem. The occurrence had taken place in Village Bhartana, Police Station Pillukhera, and the offence was registered vide FIR 108 dated 12.10.1994, at the instance of application, Ex. PA, given by Dr. Bijender Singh, the real brother of Promila Devi. Before I proceed further, it may also be mentioned here that on 10.10.1994, Sumitra, motherinlaw of Promila, also died in the same house and at one point of time, it was the case of the prosecution that Sumitra had committed murder of Promila. Further, it was alleged by the prosecution that the present two appellants along with Attar Singh, Ram Mehar and Satbir Singh, disposed of the dead body of Promila in such a manner so that Naveen Kumar and Navita may be screen from legal punishment.

Dr. Bijender Singh in the complaint given to the police had alleged that Promila was his younger sister. She was married with Naveen Kumar, appellant, on 30.5.1993 in Village Sisar Khas and sufficient dowry in the shape of Chetak Scooter, Television, Fridge, Cooler, Sewing Machine, Steel Almirah, Sofa Set, customary ornaments weighing 5 tolas, besides other articles was given at the time of the marriage. The complainant alleged that Naveen Kumar, appellant, his mother Sumitra Devi, and Navita, appellant, were not satisfied with the dowry articles and for this reason they allegedly started harassing the deceased immediately after the marriage. Promila hardly stayed for one month in the matrimonial home when she came to the house of her parents and brought the entire matter to the notice of her parents with regard to the alleged inadequacy of the dowry. She stayed in the house of her parents for 11/2 months and, then, again joined the company of Naveen Kumar. According to the complainant, he visited Village Bhartana in order to see his sister where the demand of dowry was repeated by the two appellants and their mother. It was informed to the complainant by the deceased that the appellants and their mother wanted cooking gas, milk churning machine, woollen suits, etc. The deceased used to write letters to the complainant complaining about these facts. The complainant further stated that he had been going to the Village of the appellants in order to enquire the welfare of his sister where his sister used to complain again and again. Finally, Naveen Kumar, appellant, visited Village Sisar Khas along with Promila but the demand of the appellants and their mother Sumitra continued. In all the letters written by the deceased, she had been complaining about the alleged maltreatment at the hands of the appellants. On 11.9.1994, Naveen Kumar, appellant, visited Village Sisar Khas in the company of the deceased and made a categorical demand that he would maintain and keep the deceased only if more dowry was given to him. Some assurance was given but the pressure continued was from the side of the appellants upon the deceased for bringing dowry articles. On 11.10.1994, the information trickled to the complainant that her sister Promila had been murdered by the appellants and their mother Sumitra. The complainant went to Village Bhartana on getting this information and came to know that the dead body of Promila had already been cremated.

Containing the above broad allegations, he moved the application, Ex. PA, before the SHO, Police Station, Pillukhera, on the basis of which, formal FIR, Ex. PA/2, was registered against the appellants/ u/ss 304B, 498A, read with section 34, IPC and section 201, IPC. The investigation was taken up by Hissam Singh, SI, SHO, Police Station, Pillukhera, who visited the place of occurrence and took into possession the blood stained portion of the carpet. The complainant also produced letters, Ex. P2 to P7, allegedly written by Promila before the Inspector who took these letters into possession vide recovery memo, Ex. PC. Appellant, Naveen Kumar, was taken into custody on 15.10.1994 and he suffered a disclosure statement leading to the recovery of bones and ashes from the place of cremation vide memo, Ex. PE. The SI made a sealed parcel of the bones and ashes of the deceased. Rough site plan, Ex. PG, of the place of occurrence was also prepared. Finally, the sealed parcel of the bones and ashes was sent to the office of the Director, Forensic Science Laboratory, who furnished the reports, Ex. PZ and PA/1, to the effect that the bones were human bones but the sex could not be determined from the bones. Finally, on the completion of the investigation of the case, both the appellants were challaned for offences u/ss 304B, 498A, 34, IPC and 201, IPC, in the court of the Illaqa Magistrate, who supplied the copies of the documents to the accused and committed them to the court of sessions.

An additional charge was also framed u/s 302, IPC, read with section 34, IPC, against the appellants and their coaccused read with section 201, IPC.

In order to prove the charges, the prosecution examined as many as 10 witnesses, including the brother of the deceased.

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 pleaded not guilty.

The learned trial court acquitted the appellants u/s 302/34, IPC. The trial court also acquitted Attar Singh, Ram Mehar and Satbir Singh u/s 201, IPC, but came to the conclusion that both the appellants had committed offence u/s 304B/34, IPC, besides the offence u/s 498A, IPC and section 201, IPC. Both the appellants were sentenced in the manner as stated above and aggrieved by their conviction and sentence, the present appeal.

I have heard Mr. R.S. Cheema, Sr. Advocate, on behalf of the appellants and Mr. J.S. Ahlawat, Advocate, on behalf of the respondent and with their assistance have gone through the record of this case.

Admittedly, Promila died on 10.10.1994. It is the story of the prosecution itself that on coming to know the death of his daughter, the father of Promila went to Village Bhartana. He attended the cremation of his daughter but the father of the deceased has not been examined by the prosecution and it was the trump card of Mr. Cheema that withholding of the father of the deceased is such a circumstance which goes to the root of the case. Elaborating his argument. Mr. Cheema submitted that the statement of Dr. Bijender Singh, brother of the deceased, as contained in Ex. PA and the one given in court cannot be taken as the gospel truth as this statement remained without corroboration in the absence of the nonexamination of the father of the deceased. The counsel submitted that on 11.10.1994, Bijender Singh had submitted an application before the authorities in which his version definitely was different than the one as contained in Ex. PA. The counsel argued that, in fact, both the versions of Dr. Bijender Singh, as given in Ex. PA and Ex. PA/1, are wrong keeping in view the letters which were addressed by the deceased to Dr. Bijender Singh. Further, it was submitted by the learned counsel for the appellants that the trial court was not justified in recording the conviction u/s 304B, IPC, if the documentary evidence produced on the record by the prosecution is taken into consideration.

There is merit to some extent in the submission raised by the counsel for the appellants. In order to attract the provisions of section 304B, IPC, three important ingredients have to be shown and proved by the prosecution, i.e., (1) that the death of the woman took place due to burns or bodily injury of otherwise than under normal circumstances; (2) that such death had occurred within 7 years of her marriage; and (3) that the victim was subjected to cruelty or harassment by her husband or any relative of her husband for or in connection with the demand of dowry.

The counsel submitted that in none of the letters, Ex. P2 to P7, the deceased ever complained to her parents or her brother that she was being subjected to cruelty or harassment in connection with the demand for dowry. Unless all the ingredients of Section 304B, IPC, are proved in a cumulative manner, the conviction u/s 304B, IPC, cannot be recorded. The deceased Promila was an educated lady as it appears from her letters, on which even the prosecution relies. The language and tenor of these letters, which were written right from the year 1993 upto the last day of her death, only indicate that the appellant Naveen Kumar was harassing the deceased and was visiting her with cruelty. He had created such an atmosphere in the family from which any selfrespecting lady would take into her head to finish her life. No selfrespecting lady would try to lead a life which is full of insinuation, defamation and in which she is taunted or visited with cruelty. Cruelty, as defined and understood in section 498A, is not only confined to physical cruelty but it also attracts mental cruelty. The explanation added to Section 498A, IPC, clearly states that for the purposes of Section 498A, IPC, `cruelty'' 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.

In the letters addressed her brother, it was the consistent stand of the deceased that she was subjected to cruelty at the hands of Naveen Kumar. Naveen Kumar is a man addicted with vices. He was in the habit of taking liquor and under the influence of the liquor, he used to beat the deceased and, in these circumstances, the appellant Naveen Kumar made the life of the deceased miserable. What to talk of extending respect to her, he used to shower all sort of abuses compelling the deceased to take the extreme step. So far as Navita, appellant, is concerned, though there was a general grouse by the deceased about her conduct but it is difficult to gather an inference from the language used by the deceased in her letters, Ex. P2 to P7, that she was treated with cruelty at the hands of this appellant. Section 306, IPC, talks of abetment where in pursuance of an abetment a person commits suicide. As per this section, if any person commits suicide, whoever abets the commission of such suicide, shall be punishable for this offence. Abetment can be by performing a positive act. It can even be by conduct. It can even be by omission. But, before a conviction can be recorded u/s 306, IPC, there must be some nexus between the alleged act of abetment and the death. The evidence which has been recorded in this case gives an irresistible conclusion that Naveen Kumar, appellant, had surcharged the family atmosphere in such a manner, leaving no option for the deceased but to adopt the extreme step. No sane lady would try to finish her life until and unless she is subjected to cruelty to such an extent that it had compelled her to finish herself for all times to come from this beautiful world. When a woman agrees for a marriage, she does not expect death under unnatural circumstances but the expectations are that she would get love and affection and financial security at the hands of her husband. If her those hopes are frustrated by the positive act of the husband or by wilful negligence of the husband, in my opinion, it will constitute abetment within the meaning of Section 109, IPC, punishable u/s 306, IPC, if in pursuance of that abetment, the death of a person takes place.

The next point for determination in this appeal would be whether this court is competent to convert the conviction from section 304B, IPC, to Section 306, IPC qua Naveen Kumar.

The Bombay High Court in a recent decision in Balasaheb Annappa Waghmare v. State of Maharashtra, 1997(4) RCR(Crl.) 525, has held that there is no bar in converting the conviction to the one u/s 306, IPC, though the appellant was not specifically charged with that offence and that he was initially charged for the offence u/s 304B, IPC. The verdict of the Hon''ble Supreme Court (Bombay High Court ?) can be safely applied to the present appellant. The documentary evidence further establishes that the appellant Naveen Kumar was treating the deceased with cruelty. His conviction u/s 201, IPC, also stands maintained as he committed haste in disposing of the dead body of his wife Promila. The net result is that the benefit of doubt stands extended to Smt. Navita as it was not proved on the record that she ever demanded any dowry from her Bhabi (sisterinlaw). Also, there is no satisfactory evidence that the deceased was subjected to cruelty at her hands. Also, she has not participated in the disposal of the dead body of the deceased.

Resultantly, the charges against her are hereby set aside. The net result is that the appeal is partly allowed. Naveen Kumar stands convicted of the charges framed against him. Further, Naveen Kumar, appellant, stands convicted u/s 306, IPC besides u/ss 498A, IPC and 201, IPC. He is sentenced to undergo R.I. for a period of six years. He shall also pay a fine of Rs. 5,000/; in default of payment of fine, he shall undergo further R.I. for two years. The other sentences awarded to the appellant Naveen Kumar u/ss 498A and 201, IPC, are hereby maintained. All the substantive sentences awarded to this appellant shall run concurrently. The fine, if realised, shall be given to the father of the deceased.

The appeal stands partly allowed in the above terms. Let the intimation of the acceptance of the appeal qua Smt. Navita be sent to Borstal Jail, Hisar so that she may be set at liberty, if not wanted or convicted in any other case. Intimation be also sent to the Central Jail, Jind.