MI6 v. Post for pronouncement of .iudoment orLA'^'—Sffiteinber

Mr. Neelendu Naha Roy, Pcael Lauuyer for the 5tate/respondent. {Criminol appeal under Section 374 (Z) of the Code of Criminal Procedure, 1973} Sinote Bench: Hon1>Je Mr. T.P. Shanna,J JU&6MENT (Passed on »T-5eptember, Z008)

1. This appeai is directed qgainst the judgment of conviction and order of sentence dated 15-12-2004 passed by the Additional Sessions Judge, Rqjnandgoon in 5essions Trid No.183/2003, whereby & whereunder learned Additional Sessions Jud9e after holdin9 the accused/appeltant 9Uiity of dowry death, convicted him for commission of offence under Section 304-B of the I.P.C. and sentenced him to underqo rigorous imprisonment for ten years <& pay a fine of Rs.500/-, in default of pcyment of fine to further undergo riqorous imprisonment for- two months.

2. Conviction and sentence of the appellant is chatlenged on the ground that lecn'ned Additional 5essions Judge has convicted and senteneed the appellant without any prima facie material for demand of doiiury soon befor-6 the death of deceased Prcimilaandcommitted ille9ality. 11 .?;!;•?;;:';:;.E Ei~a ^a'-Tr-! IJ5SW3Sg?a?;'} ;-;5SE:?B:KSE;^KSS;^~^®;'^B'r"T~"7:'~ '-'•''"^"•-S^'il.'-'; .1—.•-•.'••.••.•.-'sSB.S^SSS '"~SiS^gS^CSS!SSIST. ssE^SuiiM. .Au^aiWiTaWBliBiSE "^'% f^ffij.j \^y -^ ^.

3. I have heard tearned counsel for the parties and perused the impugned judgment as also the materiaS waijable on record.

4. Ccseof the prosecution, in short, is that the appellant is husband of deceased Pramiia who was married with the appeilant in the year 2001. TTie appellant used to harass &. torture deceased Pramila in connection with demand of dowry and he aiso used to beat her. On 12-8-2003, the deceased, who was in the house of the appeliait, died in abnormal circymstances. Her mother Tirath Bai (PW-1) 4 ,''-1 intimated the Police vide merq intimation Ex.P-1 on 12-8-2003. The Investigoting Officer left for the ploce of incident cmd after summoning the witnesses vide Ex.P-2, prepared inquest Ex.P-3 on the dead body of Pramiia Bai. Plain soil and soil smeared with vomit of the deceased were seized from the placeof occurrence vide Ex.P-5. 5ite map of the place of occurrence was prepared vide Ex.P-6. Dead body of Pramila was sent for autopsy to fiovernment Hospital Churic where au+opsy was conducted by Dr. A.K. Basod pW-9) who prepared post-mor-tem report B<.P-7 and found swelfim over face, blood like discharge from nose & mouth, fickle matter was coming out from anus, blisters were present over back of neck, pubic hairs were stained with blood, swellin9 was present in labia mduora, liquefaction in brain mstter and con9estion of internal parts. Viscerc were preserved and sent for chemica! analysis to the doctor vide Ex.P-8 and the doctor has advised for chemiccl examination of the said viscera vide Ex.P-SA. Finally viscera were sent for chemical examinqtion to F.5.1..,Raipur and presence of Aluminium Phosphide was confirmed in viscera vide Ex.P-12. The F.I.R. wos reqistered vide Ex.P-10.

5. After completion of investiqatiori, charqe sheet was filed before fhe Court- of . Judiciol Mcwistr'ate, First Cicss, Rcynandgoon, who in turn, committed thecase^o ;. •3;t^'?'.L£:tti^^ ^Frj'^7"^TT^7 ^~'^?M^'fs n. Atiia.aat.il •i-^"' A '<<?".. '^ ,:^ ss' ''^^STSi^'^l^ ''•'^^S^'sSi,^^, i^ . g ;:'. '^"^ ^' «i"B; the Court of 5essions Judge, Rajnandgaon, from where leorned Additibnal 5essions Jud9e, Rajnandgaon r-eceived fhe case on transfer for trial.

6. In order to establish the guilt of the accused, the prosecution has examined as many as 17 witnesses. Statement of the accused was-recorded under 5ection 313 of the Cr.P.C. in it'hich the accused has denied the circumstances appearinq against him, pleaded irinocence and false implication. •^p <i ,''^,

7. It is argued on behalf of the appellant thct the prosecution has not adduced any evidence to the pffect that the appellant has harassed or tortured his wife (sincedeceased)or demmded dowry. Tirath Bai (PW-1), who is mother of the deceased, has stated that the appellant has demanded Rs.20,000/- for- getting him empioyment.samedoes not fail under the crime of demand of dowryin terms of Section304-B of the I.P.C. or 5ections 3 iS 4 of the Dowry Prohibition Act,

1961. He has not even ofaetted or instigated the commission of suicide by the deceased. No charge of Section 306 of the I.P.C. has been framed against the appeliant and the appeilont cannot be convicted for the offence for which no chcr9e is framed and no opportunity for defence especialty in relation to instigction of the offence has been given to theappellant.

8. On the other hand, the impugned .jud9ment is supportedon behalf of the 5tate/ .-L. respondent cnd it is ar'gued that the prosecution has adduced sufficient material for conviction of the appeliant. Offence under Section 306 of the I.P.C. is minor offsnce mcluaed in Section 304-B of the I.P.C and separate chceiye \s not reguired for that offence. 7HS^!sae»a*-sWts^^.5^ .^•gT'^8 /•^diS^.^ ^<£

9. Reliance has been placed by learned counsel for the appellant in the matter of jAppasoheb & Aw. v.,State of MoharflshW in which the Apex Court has held that" Demand for money on account of financial stringency or for meeting ur'gent domestic expenses - Nof demand for dowry - Accused demandinq money for dbmestic expenses and for purchase of monure - Cannot be convicted under 5. 304-B". ii. '^!- lO.Further reliance has been pldcecl by learned counsel for the appellant •^-, •' ',;.' :- ~ • • in the .•• . matfer of Bhagwan &as v. Karfar Slngh and Ors. in which the Apex Court has held that "Abetment of suicide- l-lcrcissment of wife by husband or in-lia»sdue to differences—Per se does not attract Section 306 redd with 5ectionl07IPC, if fhe wife comniits suicide - For a charge underS. 306 there has to be some thing more". Learned counsel has aisoplaced reliance in the matter of Mahendro S'sfyh and anothepy.State of Madby^i PrQdesh . v'i

11. In the instant case, the appellant has been convicted for commissiohof offence under 5ection 304-B of the I.P.C. and sentenced to undergo R.X. for ten years & poy a fine of Rs.BX)/-, in default of poyment of fine to further unde^o R.I. for two months. The appeliant is husbandof deceasedPromila, she was married with theappellant in the year 2001 and she died as a result of poisoning within three years ofher morria9e, in the house b-f the dppellant which is not disputed. In prder to proye the charge under 5ectipn 304-Bof the I.P.C. the prosecution is r-equired to establish the following in9redients;- a) b) the appeilant is husband or relative of husbandof the deceased; the deceased died rerthin seven years of her ma-pia9e in abnormall ^I'S' circumstances as a resuit of burn iiTJuryor commissionof suicide; and ]g '.AI& 2007 SC 763 2 2007AIRSCW3107 S1995AIRSCW4570 ^•^::[ ISi SIiil .1 .. ..'-' 1 -9' c) soon before her death, the deceased was subjected to crueity in connection with demand of dowry. \

12. In the instant case, deceased Pramiia died within seven year-s of her marriage in abnor-mal circumstances cs a r-esutt of poisoninq. This fact is not disputed and otherwise estabtished from the evidence of Tirath Boi (PW-1) - mother of the deceased, Shivcharan (PW-2), Prakash Kuryam (PW-3), 6aribdas Manikpuri (PW- 4), Panika Ram (PW-5), Eir. AsK. Basod (PW-9), autopsy report Ex.P-7 & viscera examinction report Ex.P-12. The phesecution has adduced ocular & circumstantial evidence relating to demand of dowry ond cruelty. t3. Tirath Bai (PW-l), mother of decedsad Pramila, has stated in her evidence that the appeliant used to harass and bect Pramila. When she used to go to see her daughter, her daughter used to teit her that the appeliant used to demand money for getting him employment. At the time of Holi festivai, the appeltant & Pr-amila came to her house where the appellant beat Prcmila. 5he has further stated the appellant used to beat Pr'amila in connection with demandof Rs.20,000/-. On the date of incident, she received telephonic information thcrt Pramiia is iil and just thereafter, she received second phone cal! that Pramila has died, then she went to her dau9hter Pramila's house atong with 5hivcharan. The appellant told her that Pr'amila was suffering from cold and she died as a result of vomitin9 & lose -.X motions. 5he hcs further stated in para 5 of her examination that she thought that when she came to see her daughter some days ago, her daighter was heclthy, how she died suddenly, then she gave merg intimation- Ex.P-l to •the Police.

14. Shivcharan (PW-2) has supported the evidenceof Tirath Bai (PW-l). Prakash Kunjam (PW-3), 6aribdas Manikpuri (PW-4), Panika Ram pW-5) & Mansingh Dixit BB BlifeAtfiilit: (PW-12) have aiso supported the evidence of Tirath Bai (PW-1). These witnesses are residents of Pramila's maternal viliaqe Mahroom. \

15. Vijay Singh (PW-7) has stated in his evidence that 2-3 months before the death of Pr-amila, he accompanied Pramila to her matrimonial house, mother of Pramila ••» has earlier made comptaint to 6ond conimunity thot the appellant used to harass her dau9hter Pramiia on which he advised the appellant. He has aiso stated that <-f <i the appellant used to demand ntoney for 9etting him employed.

16. Tirath Bai (PW-l) & other witnesses of Village AAahroom, iwhich is the maternai villageof Pramila, have specifically admitted in their cross-examination that the appellant used to demand Rs.20,000/- for qettin9 him employed. It is evident that the appeilant has never demanded money or anyttiin9 as a result of marriage or dowry.

17. In the matter of Appasaheb (supra), the accused demanded money for domestic expenses and for purchase of manure, the Apex Court hetd that demand of money for domestjc expenses and for purchase of manure is not demand of dowry within the meaning of 5ection 304-Bof the I.P.C.

18. In the present case, the prosecution hcs not adduced any evidence reiating to demand of dowry except the demand of Rs.20,000/- by the appeilant for gettinq himseif empioyed ond in absence of any evidence reiatin9 to demand of dowry other than the money so demonded for getting Job, it is difficult to hold that the appeliant has demanded any dowry from his wife or relotives of his wife. Tirath Bai (PW-l) has admitted in her cross-examination para 9 that the appellant used to beat her daughter Pramila and he used to harass her. This witness has accepted the suggestion made by the defence that whenthe appeltant uaed togo out;he used to close the door from outside and did not permit herdaughter togo '"SAAiitfi.^y^^ %^ out. She has admitted in para 12 of her evidence thot Pr'aniila was her younger dauqhter, she used to love her more and she is havina no maie chitd. She has dao \ stated in para 13 that she felt sorrow on her dau9hter's death and she doubts thot the appellont has killed her daughter and on that basis she has male allegations of harassment & torture.

19. Tirath Bai (PW-1) has further admitted in hercross-examinatioh she is hwing doubt over the appeilant thflrt he has killed her daughter and on that bcsis she is ^ - . ~y making atlegations of harassment&tcwtureagainsttheappellant. But she has specifically stated in her- examihdtion-in-chief and even it is proved in defence has stated that the appellant used to close the door from outside and put her daughter inside the room alone. TTiis is sufficient fof draraing inference that the behaviour of the appeilant iwas not normal and he used to torture ond harass the cleceased. Para 13 of herevidence should not be read alone it should be read in the context of other facts and circumstances.

20. Shivcharan (PW-2) has admitted in his cross-examination para 6 that he along with five other per'sons nameiy,Panka, Vijoy, Santosh & mother of thedeceased took Prfflnila to the Oppellant's house where theappellant has welcomed them, fhey took their meals with the appellant and stayed at the House of the appellant, while they were returning frotn the house of the qipellant.they advised the appellant <& decedsed Pramila to live Mappih/, but after 2-3 months, he heard ttie news'that Pr'amilahos died. ProkashKunjam (PW-3) &6ar-ibdas Manikpuri (PW-4) have admitted in their cross-examination that the appeiiont has not demanded; anythinq before them and there wos nodomestic quarrel between them. TipatlT| Bai (PW-l) & othep witnesses have stated that 2-3 months before •fhe deiatl'io'Bi Ppamila, they took Pramilawith them from't'hehouseof TirothBai dnd they werrt|j to the houseof theappellant. H- shows that there was sdme clispLrEe|f?etwe^nj^the;| ^••—:——- ••*.^:>i 'VSSSSSs. ••fssisss^ 1 ^ A? °:~.-. ,.<?'.'" '•S<!^iy -f' appellant <& the deceased and these witnesses have tried their level best to settle the dispute. Defence has su9gested to Tirath Bai (PW-1) appellant never permits Pramila to go anywhere, whenever he used to 90 out, he used to close the door from outside and leave Prarnila alone in •tfie house, Pr'amila used to live alone in the closed house. She hasstated so in para 9 of her evidence. On this bosis, this witness was levellinq aile9ationon the appellant that the appellant used to harassj and torture her daughter. The appellant has not offered any expianation that'as t6;'why he used to behave wifh his wife in 5uch a way and what was the cause for such behavjour'. The deceased was neither minor nor insane ond there was no occasion for this abnormal behaviour of the appettant. The deceosed or" her mother has not lodged any report, only once they have informed their caste community people and with the help of the community people they have tried to settle the matter. But in ttie absence of any report of regular intervention by fhe members of community, no adverse inference can be drcnwn that there was no pr-evious harcssment or torture.

21. In case of domestic violenceor harassment, normally the effected persons i.e. daughter-in-law does not report dr inform anyone about the harassment or tortuous cttitude of her husband or in-law's to other persons but as and when she qets the opportunity, she informs about it to her parents. The parents of the bride normQlly do not react immediately but wait for an opoortune time, in the hope of amicable settlement between the parties and to avoid further complications which may arise in future. But when the matter becomes intoler'able then the daughter-in-law or- the effected lady discloses the toi'tuous; ottitude of her husband and in-lais's, to the police, neighbour and other persons r-eiated to her to get the dispute resolved with their iritervention. ^ :<-1' 'I311 ./ ff

22. In this case, the deceased died in the house of the appellant and the appellant has told the motherof the deceased that she died as a result of cold, motions & vomitina, but he has not stated anything regarding consumption of poison i.e. insecticide Atuminium Phosphide, especially when froth was coming out from mouth & nose of The deceased which was seen by the witnesses and also noticed in the autopsy report Ex.P-7. The appettant has tried to conceal the cause of death of the decea^d and he has not lodged any report nor intimated to the Police reqarding the abnormal death of his wife. It is clear from the ^ evidsnce of Tlrath Bai (PW-1) that before 2-3 da/s of the incident, her daughter was healthy, how she died within 2-3 days, therefore, she was doubting on the appellant and lodqed merg intimation.

23. For harassment or tort-ure, no specific act is required to be established, regular Dhysicol <& mental abnorma! behaviour and ill treatment may constitute harassment & torture.

24.Evidenceof TirathBai (PW-l) is supported by the evidence of Prakash Kunjam (PW-3), 6aribdas Manikpuri pW-4), Panika Ram (PW-5) <& Mansinqh Dixit (PW- 12). Their evidence shows that the appellant used to harass the deceasad regularly, even he used to keep his wife inside the closed house, when he used to go out of his house. It diows that because of regular ill treatment of the appeliant, the deceased was left with no course except to commit suicide. Therefbre, by his iil treatment the appellant has abetted and instigated the deceased for commission of suicide. As has been held in the case of Mahendra (stpra), mere dlegotion of harassment meted out to the deceased is not: sufficient to constitute the offence under 5ection 306 of the I.P.C. In the above cited case, it was held that continuous ill treatment to the wife (deceased) i MKWn-uy^aii>—ItuIi;L*^ 10 by the husband or relatives of the husband drive the deceased to commit suicide or to cause grave iryury to her (whether physicaily or mentally).

25.In the instant case, deceased Pramiia has committed suicide. The evidence adduced on behalf of the prosecution is sufficient to drcn® inference that the appeilant has abetted/instigated the commission of suicide by the deceased. In this case, the prosecution hos eome with a specific case of harassment <& torture ' and ample opportunity has befen given to the defence and the defence has availed ^ ' the same to meet out the case against it. Defence has cross-examined the witnesses at lernth. In this case, no specific charqe of 5ection 306 of the I.P.C. has been framed against the appeilant. But as has been held by the Apex Court in the case of Hira Lal and others v. State (Sovt. of NCT), &e!hi^ even in case of char9e under 5ection 304-B of the I.P.C., the accused may be held guilty for commission of offence under Section 306 of the I.P.C., even in absence of specific charge. Pca-as 15 & 16 of the jud9ment in ttie matter of Hira Lal (swra) read thus: :^ "15. It may be noted that thouqh no charqe was framed under Section 306 IPC, that is inconsequential in view of what has been stated by o three-Judge Bench of this Court in K. Prema .5. Rcw v. Vadla Srinivosa Rao .

16. On the facts of the case even thou9h it is difficult to sustain the conviction under Section 304-B IPC, ther-e are sufficient materials to convict the cccused-appellants in terms of Section 306 IPC along uuith Section 498-A IPC."

26. In the instant case,the prosecution hos not proved demand of dowry and crueltyi in connection with demond of dowry, but the prosecution has proved that the| mpellant has harassed and tortured the deceased. By his abnormal behaviour'gj 4(2003)8SCC80 5 (2003) 1 SCC 217 : 2003 SCC (Cri) 271 's ;? l;y:tl1 ^-4 1 11 the appellant had abetted and instigated commissionof suicide by deceased Pramila. The act of the oppellant is punishable under 5ection 306 of the' I.P.C. \ . . Offence under 5ection 306 of the I.P.C. is a minor offence inciuded in offence under Section 304-B of th"e I.P.C. and no separate char9e is r'equired for that. Defence has cross-examined the witnesses on the point of cruelty and torture. No prejudice has bee.fi caused to the appellant and the appellant may be convicted on the basis of the materiol avdilable on record for commission of offence under • • ^'., Section 306 of the I.P.C. Consequeri+ly, conviction of the appellant under Section 304-B of the I.P.C. is not sustainable.

27. The act of the appetlant is punishable under Section 306 of the I.P.C. As regards the question of sentence, he was in custody from 27-9-2003 to 30-9-2003 i.e. for three days ahd after his conviction he is in custody since 15-12-2004, thereby hehas completed more than three years & eight months of jail sentence.

28.In the result, the appeal is partly allowed. Conviction Asentences imposed upon the appellantunder 5ection 304-B of the I.P.C. are set aside and he is acquitted of the said chwge, instead thereof, he \s convicted under Section 306 of the I.P.C. and sentenced to undergo R.I. for three years & nine months and to poy a fine of Rs.500/-, in default of payment of fine to further- under90 R.I. for two months. The appellant shall be entitled for set off for- the period already underqone by him. Sd/- T.P.Sharnia Judge . r^ft:.-BVn^laluui-P liC-SST^TTg^^BSfei.S'-S'"''