Court: Jharkhand High Court
Bench: JUSTICE Prashant Kumar & Amitav K. Gupta
Rabindra Nath Tiwary & Ors. Vs. State Of Jharkhand On 25 February 2014
Law Point:
Indian Penal Code, 1860 — Sections 306, 498A — Evidence Act, 1872 — Section 113A — Abetment of suicide — Cruelty — Presumption — Deceased committed suicide within 7 years of marriage — Appellant-husband subjected her to cruelty for unlawful demand of Rs. 30,000 — Court can presume under law that appellant No. 1 abetted her to commit suicide — Appellant No. 1 guilty of offence under Section 306, IPC — Nothing on record to show that appellant Nos. 2, 3 and 4 tortured deceased — No evidence that they hatched conspiracy for demand of dowry — No offence made out against appellant Nos. 2, 3 and 4 — Their conviction under Sections 304B, 120B, 498A, IPC set aside — They are acquitted from charges levelled against them — Conviction of appellant No. 1 set aside under Section 304B, IPC and convicted under Sections 306 and 498A, IPC.
JUDGEMENT
1. This appeal is directed against the judgment of conviction and order of sentence dated 29.7.2003 and 31.7.2003 respectively passed by the Additional District and Sessions Judge-cum-Fast Track Court No. II, Gumla in Sessions Trial No. 82 of 1990/Sessions Trial No. 7 of 1991, whereby and whereunder appellants were convicted for the offences under Sections 304(B) and 498(A) read with Section 120B of the Indian Penal Code. It appears that appellant No. 1 Rabindra Nath Tiwary was sentenced to undergo imprisonment for life under Section 304(B) of the Indian Penal Code., whereas appellant Nos. 2, 3 and 4, namely, Rajeshwar Nath Tiwary, Surendra Nath Tiwary and Smt. Swikirti Devi respectively were sentenced to imprisonment for seven years for the offence under Sections 304B/120B of the Indian Penal Code. All the appellants were further sentenced to undergo R.I. for a period of three years for the offence under Sections 498A/120B of the Indian Penal Code.
2. The case of prosecution, according to written report of PW 1 (informant) is that, his daughter Ambuj Devi was married to appellant No. 1 Rabindra Nath Tiwary in the month of June, 1988. It is then alleged that from past some time, informant’s daughter was complaining that her husband used to torture her for bringing more money from her parents. It is then alleged that appellant No. 1 demanded Rs. 30,000 from informant for the purpose of thikedari. It is further stated that on 16.3.1990 at 1 a.m. Rajeshwar Tiwary and Bhuneshwar Pandey came to his residence and informed that his daughter Ambuj had received burn injuries and she was admitted in Mission Hospital, Mandar. Thereafter informant and others went to Mandar and came to know that his daughter has died. He cast suspicion on Rabindra Nath Tiwary and alleged that he had killed his daughter because of non-fulfilment of demand of money.
3. On the basis of aforesaid written report, Gumla P.S. Case No. 33/1990 dated 16.3.1990 was instituted under Section 302 of the Indian Penal Code, and Sections 3, 4 and 5 of the Dowry Prohibition Act, and the police took up investigation. During investigation, inquest of the dead-body of deceased Ambuj prepared and her dead-body was sent to Rajendra Medical College & Hospital, Ranchi for post-mortem examination. It appears that after completing the investigation, police submitted charge-sheet against the appellants under Sections 302/120B of the Indian Penal Code and Sections 3, 4 and 5 of the Dowry Prohibition Act. It appears that learned Chief Judicial Magistrate took. cognizance of aforesaid offences and, thereafter, committed the case to the Court of Sessions, as the offence under Section 302 of the Indian Penal Code is exclusively triable by a Court of Sessions.
4. After commitment, record was received in the Court of Additional Sessions Judge-II; Gumla, who vide order dated 10.9.1991 framed charge against the appellants under Sections 302/120B/304B/498A/34 of the Indian Penal Code, and under Sections 3/4/5 of the Dowry Prohibition Act. Aforesaid charges explained to the appellants in Hindi to which they pleaded not guilty and claimed to be tried. Thereafter, prosecution examined altogether 16 witnesses in support of its case. Prosecution also brought on the record various documents i.e. fardbeyan (Ext. 1), letter written by the deceased (Ext. 2), signatures on the inquest report (Ext. 4 series), Photostat copy of letter written by the deceased (Ext. 5), formal F.I.R. (Ext.6), seizure list (Ext.7) and post-mortem report (Ext.8). Defence also examined one witness namely, Neha Tiwary. After considering the evidence available on the record, the learned Court below convicted and sentenced the appellants as stated above. Against that present appeal filed.
5. While assailing the impugned judgment, Mr. B.M. Tripathy, Senior Advocate submitted that there is absolutely no evidence against appellant Nos. 2, 3 and 4 to show that they have demanded dowry and/or tortured deceased for the said demand. Thus, offence under Sections 304B/498A of the Indian Penal Code are not made out against them. It is further submitted that there is no evidence to show that appellant Nos. 2, 3 and 4 hatched conspiracy with appellant No. 1 for demanding dowry and/or torturing deceased for the demand of dowry. Thus, no offence is made out against appellant Nos. 2, 3 and 4 under Sections 304B/498A/120B of the Indian Penal Code. It is then submitted that so far appellant No. 1 is concerned, so-called demand of money for the purpose of thikedari cannot be treated as dowry. Thus, offence under Section 304B is not made out against the appellant No. 1. It is further submitted that PW 4, who is brother of deceased had stated that relation of appellants was cordial with the deceased. Thus, offence under Section 498A is not made out. It is submitted that deceased had received burn injuries at the time of cooking food, thus, her death is accidental. Hence, all the appellants are entitled to be acquitted from the charges levelled against them.
6. On the other hand, Mr. Amresh Kumar, learned Addl. P.P. submitted that it has come in the evidence of PW 1 that just after one year of the marriage, appellants were torturing deceased for demand of money. He further submitted that it is not disputed that deceased died within seven years of her marriage in her matrimonial house, due to burn injuries. Under the said circumstance, there is presumption of dowry death against the appellants. Learned Addl. P.P. further submitted that explanation given by the appellants that deceased caught fire at the time of cooking food, cannot be accepted, because the place of occurrence is varandah and the Investigating Officer has not found any cooking materials, utensils or stove at the place of occurrence. Accordingly, learned Addl. P.P. submitted that there is ample evidence available on the record to show that appellants had set fire to the daughter of PW 1. Thus he submitted that they have been rightly convicted and sentenced by the learned Court below.
7. Having heard the submissions, I have gone through the records of the case.
8. From the perusal of post-mortem report (Ext.8), Inquest Report (Ext.3) and other oral evidence available on record, I find that deceased died due to burn injuries.
9. As noticed above, learned Court below convicted the appellants for dowry death under Section 304B of the Indian Penal Code. Dowry death defined under Section 304(B) of the Indian Penal Code, which runs as follows:
“Dowry death—(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years or 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.”
10. From the perusal of aforesaid section, I find that there are two essential ingredients of dowry death as defined under Section 304B:
(i) death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances;
(ii) woman is subjected to cruelty or harassment by her husband or any relative of her husband for or in connection with any demand for dowry.
11. Explanation appended to the aforesaid provision provides that meaning of dowry mentioned under Section 304B of the Indian Penal Code, shall have the same meaning as defined under Section 2 of the Dowry Prohibition Act, 1961. The definition of dowry as given under Section 2 of the Dowry Prohibition Act is as follows:
“Definition of ‘dowry’—In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly—
(a) by one party to a marriage to the other party to her marriage; or
(b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before [or any time after the marriage] [in connection with the marriage of the said parties, but does not include] dower or mahr in the case of persons to whom the Muslim Personal Law (Shairat) applies.
Explanation II—The expression “valuable security” has the same meaning as in Section 30 of the Indian Penal Code.”
12. The aforesaid definition of dowry given under Section 2 of the Dowry Prohibition Act has been interpreted by the Hon’ble Supreme Court in Appa Saheb and Another v. State of Maharashtra, reported in I (2007) DMC 143 (SC)=I (2007) SLT 188=I (2007) DLT (CRL.) 1 (SC)=I (2007) CCR 197 (SC)=(2007) 9 SCC 721. According to the Hon’ble Supreme Court if any property or valuable security should have been given or agreed to be given either directly or indirectly on or before or any time after the marriage and in connection with the marriage, then only said giving and taking of the property will become dowry. In other words, giving or taking of property or valuable security must have some connection with the marriage of the parties. Hon’ble Supreme Court in the aforesaid decision has held that being a penal provision, Section 304B of the Indian Penal Code, is require to be construed strictly. In the said decision, Their Lordships further held that a demand for money on account of some financial stringency or for meeting some urgent expensive exchange or for purchasing manure cannot be termed as a demand for dowry.
13. A similar view taken by Hon’ble Supreme Court in Modinsab Kasimsab Kanchagar v. State of Karnataka & Another, reported in IV (2013) SLT 391=II (2013) DLT (CRL.) 584 (SC)=II (2013) CCR 236 (SC)=(2013) 2 East Cr.C 155 (SC). In this case, their Lordships has held that any demand of an amount by the accused for repayment of society loan, has no connection with the marriage. Hence, no offence under Section 304B is made out.
14. In the instant case, I find that deceased had died within seven years of her marriage due to burn injuries. Thus, first ingredient of dowry death is satisfied. So far, second ingredient of dowry death is concerned, I find that PW 1 in his deposition has stated that appellant No. 1 has demanded Rs. 30,000 during the tilak ceremony of PW 4. He further deposed that when he told him that he will pay aforesaid amount after marriage of his son, he lost his temper and abused deceased in front of so many relatives and also cast aspersion on her chastity. This fact was supported by PW 2 and PW 4 who are brothers of deceased. However, PW 4 in his deposition had stated that appellant No. 1 demanded aforesaid money for the purpose of thikedari. This fact was also stated by PW 1 in his written report. Under the said circumstance, I find that demand of Rs. 30,000 has no connection with marriage, thus, does not come within the purview of dowry as defined under Section 2 of the Dowry Prohibition Act. It appears that said demand has been made for investment in contract business (thikedari), therefore, the same will not come within the definition of dowry.
15. PW 1 had also stated that deceased made complaint that appellant No. 1 used to torture her for demand of money. But he has not stated that the said demand had any connection with the marriage. Moreover, aforesaid fact has not been supported by PW 4 who specifically stated at paragraph No. 17 of the deposition that prior to tilak ceremony, he had no grievance with appellant No. 1. According to PW 4 prior to tilak ceremony, relation of appellant No. 1 with the deceased was cordial. PW 1 in his cross-examination at paragraph No. 18 has also stated that his daughter used to talk with him about his in-laws family and during that period she has not made any complaint. PW 1 in his cross-examination has stated that his daughter has stated about torture for demand of money in front of his wife. But the wife of informant has not been examined in this case in support of PW 1. Under the aforesaid circumstance, statement of PW 1 that after one year of the marriage, deceased had made complaint against appellant No. 1 that he tortured her for demand of money cannot be accepted.
16. In view of the aforesaid discussions, I find that demand of Rs. 30,000 for the purpose of thikedari business will not come within the purview of dowry, but at the same time, in my view, same will be treated as an unlawful demand. Under the said circumstance, I am of the view that the offence under Section 304B of the Indian Penal Code, is not made out.
17. Now the question arose as to which offence made out against appellant No.?
18. As noticed above, I find that appellant No. 1 has made unlawful demand of Rs. 30,000 from PW 1 for business purpose. It has further come in the evidence that, when PW 1 expressed his inability to meet the aforesaid demand immediately and promised to fulfil the same later on, whereafter appellant No. 1 lost his temper and abused the deceased in front of so many relatives and has also cast aspersion on her chastity. It has come in the evidence of PW 5, who is an independent witness that deceased is a nice lady having good character. Under the said circumstance, if her husband raises question on her chastity in front of her father, mother, brother and other relatives, then one can understand her mental agony. Thus, I have no hesitation in holding that appellant No. 1 subjected the deceased to cruelty for unlawful demand of Rs. 30,000. In that view of the matter, I am of the considered view that offence under Section 498A of the Indian Penal Code is made out against appellant No. 1.
19. It is an admitted position that deceased died due to burn injuries in her matrimonial house within seven years of her marriage. The explanation given by the appellants that she received burn injuries at the time of cooking, cannot be accepted in the facts and circumstances of this case. PW 13 Investigating; Officer, had inspected the place of occurrence and has found that the occurrence took place in the varandah. He had not found any burner, cooking materials and utensils at the place of occurrence. Thus, in my view, story of receiving burn injuries by accident at the time of cooking cannot be accepted. The nature of injuries sustained by the deceased coupled with her mental condition and surrounding situation at the scene of occurrence, established that deceased committed suicide and her death was not an accidental death. Section 113A of the Evidence Act is quoted hereinafter:
“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.”
20. Thus, in view of provision contained in Section 113A of the Evidence Act, a Court can presume that a woman committed suicide on the abetment of her husband or his relatives, if it is shown that said suicide is within seven years of her marriage and her husband or such other relatives had subjected her to cruelty as defined under Section 498A of the Indian Penal Code.
21. In the instant case, it is established that deceased committed suicide within seven years of her marriage. I have also come to the conclusion that appellant No. 1 subjected her to cruelty for un-lawful demand of Rs. 30,000. In that view of the matter, Court can presume under the law that appellant No. 1 has abetted her to commit suicide. Thus, in my view, appellant No. 1 is also guilty for the offence under Section 306 of the Indian Penal Code.
22. From perusal of entire evidence available on record, I find that there is no evidence to show that appellant Nos. 2, 3 and 4 had demanded any dowry and/or made unlawful demand from the deceased and/or her parents. There is also nothing on record to show that appellant Nos. 2, 3 and 4 had tortured deceased. There is absolutely no evidence laid by the prosecution to show that appellant Nos. 2, 3 and 4 had hatched conspiracy with the appellant No. 1 for demand of dowry and/or unlawful demand from the deceased or her parents and in execution of such conspiracy they tortured the deceased. In that view of the matter, I have no hesitation in holding that no offence made out against appellant Nos. 2, 3 and 4. Therefore, their conviction under Sections 304B/498A/120B of the Indian Penal Code by the learned Court below is wholly illegal and against the evidence available on record. Thus, the same cannot be sustained.
23. In view of the discussions made above, I allow this appeal, so far it relates to appellant Nos. 2, 3 and 4 and set aside the judgment of conviction and order of sentence passed against them. They are also acquitted from the charges levelled against them. It appears that appellant Nos. 2, 3 and 4 are on bail, hence, they are discharged from the liabilities of their bail bonds.
24. Appeal of appellant No. 1, namely, Rabindra Nath Tiwary, is partly allowed. The conviction of appellant No. 1 under Section 304(B) is set aside and he is convicted under Sections 306 and 498A of the Indian Penal Code and sentenced to undergo imprisonment for ten (10) years under Section 306 of the Indian Penal Code. He is further sentenced to undergo imprisonment for three years under Section 498A of the Indian Penal Code. Both the sentences will run concurrently.
25. It appears that appellant No. 1 is in custody from the date of conviction i.e. 31.7.2003. Thus, he has completed the sentence as awarded herein above. Accordingly, he is also directed to be released forthwith, if not wanted in any other case.
Amitav K. Gupta, J.—I agree.
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