Sunday, September 15, 2013

Mother of accused living separately acquitted EVEN IN dowry DEATH case !! Per husband's version poor mason tries to go to Dubai to earn, wife unhappy with this, commits suicide! hubby in jail 3years+ !! Wife's side files dowry case ... jail 3years+ and 15 years lost in appeals ... how lives are spoiled in India !!!!

As per husband's verion, he is poor mason, who tied to go to Dubai to earn, wife unhappy with this, commits suicide! hubby in jail 3years+ !! Wife's side files dowry case allgedly _after_ asking money , when husband (of deseaced wife) doesn't have money ; case meanders thru courts, hubby in jail 3years+ and 15 years lost in appeals ... how lives are spoiled in India !!!!

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The MAN's mother cries out :
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  • "............"Myself and my son are living separately. He lives in the first story building and I and my family (wife) live on the ground floor. We are separate in mess and our ration cards are separate. I will produce my ration card and my son will produce his own ration card. The girl/deceased was to the liking of my son as such she was taken to our house without any dowry with three clothes on her person. The financial position of his father in law was poor as the Girl was to the liking of my son so we brought her to our home. No dowry or shushak was demanded. My son wanted to go to Dubai as it was very paying for masons and carpenters in Dubai. My son wanted to go to Dubai alone because of financial difficulties and language difficulties which was not liked by deceased and on the alleged day of occurrence, she put kerosene oil on her body in upper story of the house and my son tried to save her and in that attempt he also sustained burn injuries. After coming to know of this incident I took both of them to hospital at Rampura and got them admitted. When I was told by medical staff that their condition was serious and for better treatment I took them to Patiala hospital, where she died and my son remained in hospital for one and half months in the hospital. I bore all the expenses for their treatment and medical expenses. Mother of the deceased interviewed my son along with one Rani her relation and demanded money thinking that I had brought lot of money from Dubai. On our refusal they have deposed against us. It is a false case. We are innocent."......"
  • The man's mother is completely acquitted
  • Husband suffers an initial jail term of 3 + years but is free later 


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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF - Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
 
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CASE FROM JUDIS / INDIAN KANOON WEB SITE 
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Punjab-Haryana High Court

Jit Singh vs State Of Pb. on 5 September, 2013

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

CRA No.406-SB of 2003

Date of Decision:-5.9.2013

Jit Singh ...Appellant

Versus

State of Punjab ...Respondent

CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR

Present:- Mr.P.P.S.Tung, Advocate for the appellant. Mr.K.S.Aulakh, AAG Punjab for the State.

Mehinder Singh Sullar, J. (Oral)

Tersely, the facts & evidence, unfolded during the course of trial, which need a necessary mention for the limited purpose of deciding the core controversy, involved in the instant appeal and emanating from the record, as claimed by the prosecution, is that the marriage of appellant-convict Jit Singh son of Gurcharan Singh (for brevity "the appellant") was solemnized with Rani, daughter of complainant Mithu Singh (PW1) (for short "the complainant") about four years (24th Soun,1994) prior to the present occurrence. The marriage was arranged by Jaspal Singh, brother-in-law (Sandhu) of the complainant. Neither any dowry was demanded by her in-laws nor given by her parents. After solemnization of the marriage, they resided together, cohabited as husband & wife and a female child was born out of their wedlock. 

2. After some time of solemnization of marriage, appellant Jit Singh (husband) and Surjit Kaur (mother-in-law) (acquitted accused) have started taunting her for not bringing dowry articles. Rani narrated her tale of woe to her father. The complainant projected his inability to fulfill their demand of dowry on account of paucity of funds. They did not stop harassing her. Thereafter, the complainant, in order to pacify the demand, gave one golden Kara, one gold ring, one wrist watch and other customary gifts, but in vain. The appellant & his mother again started taunting and demanded more money from her. The golden and silver ornaments were stated to have also been given by the complainant to the accused at the time of birth of the female child. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ 

3. According to the prosecution that one year after the present occurrence, Gurcharan Singh, father of the appellant (acquitted accused) had returned from abroad and all the three accused had started treating Rani with cruelty and demanded more money from her. The complainant had again given ` 5000/- to them to settle the dispute. They further demanded ` 10,000/- from her. He (complainant) showed his inability to pay the same. Thereafter, the accused gave beating to Rani. She was carrying seven months' pregnancy at that time. About 15 days prior to the present occurrence, Gurprem Singh son of, and Nahar Singh brother of, the complainant had gone to the matrimonial home of Rani. She narrated to them the entire episode of demand of ` 10,000/- made by the accused and told that if their demand of ` 10,000/- was not met, then, they would not allow her to stay in her matrimonial home. Rani felt annoyed on it. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ 

4. Sequelly, the case of the prosecution further proceeds that on 8.8.1998, the complainant received a telephonic message from mediator Jaspal Singh that Rani had been burnt and taken to Rampura Hospital. He went to Civil Hospital, Rampura, from where, she was referred to Rajindra Hospital, Patiala. On 9.8.1998, he reached Patiala and came to know that his daughter had already died in the evening of 8.8.1998 in Rajindra Hospital, Patiala.

5. Leveling a variety of allegations and narrating the sequence of events, in all, the complainant claimed that his daughter Rani had died an unnatural death caused by burn injuries within a period of seven years of her marriage. Soon before her death, she was subjected to cruelty and harassment by her husband and in-laws in connection with and on account of demand of dowry. Thus, the accused have committed the offence of dowry death. In the background of these allegations and in the wake of statement (Ex.PA) of the complainant, the instant criminal case was registered against appellant Jit Singh (husband), Gurcharan Singh & Surjit Kaur (parents-in-law) of the deceased, by means of FIR No.51 dated 9.8.1998 (Ex.PA/2), on accusation of having committed an offence punishable under section 304-B IPC by the police of Police Station Dayalpura, District Bathinda, in the manner depicted here-in-above. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ 

6. After completion of the investigation, the final police report (challan) was submitted by the police against the appellant and acquitted accused to face the trial for the indicated offence.

7. Having completed all the codal formalities, they were charge-sheeted for the commission of pointed offence. As they did not plead guilty and claimed trial, therefore, the case was slated for evidence of the prosecution by the trial Court. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ 

8. The prosecution, in order to substantiate the charge framed against the appellant and acquitted accused, examined PW1 complainant Mithu Singh, who has deposed in the following terms:-

"My daughter Rani was married with accused Jit Singh about four years prior to her death. Jaspal Singh my brother-in-law was the mediator in the said marriage. Accused Gurcharan Singh is the father-in-law of my daughter and Surjit Kaur accused is the mother-in-law of my daughter. It was simple marriage and at that time there was no demand and the accused had took her with him in simple clothes. 

After about 3 months of the marriage of my daughter the accused started harassing and teasing her for not giving them the dowry. My daughter Rani used to tell me about all these facts whenever she visited us. (Objected to). After about one year of marriage and in order to rehabilitate my daughter as they used to beat her then we gave one golden ring and one golden Kara were given to my son-in-law Jit Singh accused along with one watch and one golden ring was given to my daughter and on my behalf the other accused were given fan, cooler, bed and other clothes, including chair tables, were given to my daughter, so that she may be rehabilitated. Even the relations of accused were given small gifts of clothes but even then the accused kept on beating and harassing my daughter. After 2 years of the marriage of my daughter she gave birth to a daughter. She was known as Babbu. On her behalf my grand-daughter was given silver ornaments and relations of accused were also given clothes and nothing else was given to the other accused. Then accused Jit Singh, accused Gurcharan Singh and accused Surjit Kaur present in court kept on beating my daughter Rani. Note:- At this stage witness became emotional and started weeping and he consumed a glass of water.

Gurcharan Singh accused had come back from abroad about one year prior to death. Accused were ill-treating my daughter and demanded dowry from her parents. After about 5 months prior to her death I had given Rs.5000/- to accused Jit Singh in the presence of Gurcharan Singh and Surjit Kaur accused. Even then the accused did not stop ill-treating her. But accused demanded Rs.10,000/- more as Jit Singh was to go to abroad and then Rani reacted and stated that her parents are poor and they cannot satisfy the demands of accused.

At this stage the witness also became emotional. About 3 months prior to the death of my daughter all the three accused demanded Rs.10,000/- more from us and all of them gave beating to my daughter and accused Jit Singh took my daughter Rani to the house of my brother-in-law Jaspal Singh at V.Selbrah. Then I took my daughter to Mansa and there Rani disclosed all the facts to me (Objected to). About 1½ months prior to the death of my daughter Rani was sent to her in-laws house at the instance of my brother-in-law Jaspal Singh mediator in the presence of Harnek Singh and Raghbir Singh, Rani was sent to her in- laws and she was taken by accused Jit Singh with him. Even then the accused ill-treated her. About 15 days prior to the death of my daughter Gurprem Singh my son and my brother Nahar Singh went to the house of accused in order to see my daughter, but even in their presence, the demand of Rs.10,000/- was raised by accused which was the condition of her rehabilitation. Nahar Singh and Gurprem Singh told me all these facts (Objected to). 

On 8.8.98 I had gone to see my sister Ajmer Kaur at V. Dhingar and when I came back at my village at Mansa my wife told me on my arrival that some telephone call had been received from Jaspal Singh, my brother-in-law and the information that my daughter Rani had got burn injuries and she has been removed to Rampura hospital. On this I after arranging conveyance went to Civil Hospital, Rampura Phul and on reaching there I came to know that my daughter has been sent to Rajindra Hospital, Patiala in serious condition. At that time she was in a family was having 7 months matured pregnancy. Then I went to Mansa and arranged for money and informed the neighbourers. Then I reached Patiala on 9.8.98 and on reaching there I came to know that my daughter Rani has died due to dowry demand by the accused, or that she had set on fire by the accused or set on fire by herself. Police had come at Rajindra Hospital, Patiala and my statement was recorded which was read over and explained to me and I signed the same as a token of its correctness, which is Ex.PA. Police had conducted inquest report of deceased Rani, in my presence and I identify the dead body at the time of inquest and inquest report is Ex.PB.

The golden ornaments given to my daughter were got prepared from Hans Raj of Mansa and I have taken Rs.5000/- as loan from Karnail Singh Ex-President, M.C.,Mansa."

9. Likewise, PW2 Gurprem Singh, son of the complainant, has supported the prosecution version. Instead of reproducing his entire statement and in order to avoid the repetition suffice it to say that he has corroborated the statement of PW1 and his version contained in the initial statement (Ex.PA) on all vital aspects of the matter. PW3 Ram Singh, son of Mohan Singh, has stated that the marriage of appellant was solemnized with Rani on 24th Soun, 1994. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ 

10. Similarly, on police request (Ex.PD), accompanied by inquest report (Ex.PB), PW4 Dr.O.P.Aggarwal conducted the post mortem examination on the dead body of Rani on 9.8.1998 (wrongly written as 8.9.98), vide post mortem report (Ex.PC). The cause of death in his opinion was due to burn injuries, which was ante mortem in nature and was sufficient to cause death in the ordinary course of nature. PW6 Dr.Rajinder Kumar Garg has deposed that on 8.8.1998, appellant Jit Singh and Rani were brought to Civil Hospital, Rampura. He referred them to Rajindra Hospital, Patiala on the same day and information (Ex.PF) in this regard was sent to In-charge Police Station Rampura. They had sustained burn injuries.

11. Now adverting to the evidence of police officers, PW5 HC Harbhajan Singh and PW8 C.Vassakha Singh are the formal witnesses, who have only tendered their respective affidavits (Ex.PE & Ex.PW8/A) to complete the chain of link evidence. PW7 SI Amrit Pal has stated that on 8.8.1998, on receipt of information, he reached Civil Hospital, Rampura, where Rani and Jit Singh were admitted. They were referred to Rajindra Hospital, Patiala. Thereafter, he, HC Jarnail Singh and other police officials reached Rajindra Hospital and submitted the application (Ex.PW7/A) to record the statement of Jit Singh. The doctor declared that appellant Jit Singh was not fit to make statement, whereas Rani had already expired, by way of his opinion (Ex.PW7/B). He searched for other eye witnesses on 8.8.1998 in the hospital, but in vain.

12. The Investigating Officer (PW7) has further maintained that on 9.8.1998, the complainant met him in the hospital. He made his statement (Ex.PA), which was reduced into writing. It was read over and explained and Mithu Singh signed the same in token of its correctness. He made his endorsement (Ex.PA/1) and sent it to the police station for registration of a case, on the basis of which, the formal FIR (Ex.PA/2) was recorded by Harbhajan Singh. He identified his signatures. Then, he has prepared the inquest report (Ex.PB) of the deceased and moved an application (Ex.PD) for post mortem examination on her dead body. He has also recorded the statements of Mithu Singh, Buta Singh and Gurmit Kaur. One piece (Ex.P5) of loose trousers (Salwar) of Rani was taken into possession, vide recovery memo (PW7/C). He obtained the report of post mortem examination and handed over the dead body to her relatives.

13. Thereafter, he (PW7) visited the place of occurrence and took into possession one gallon (Ex.P1) containing 3 and half bottle of kerosene, which was sealed in a parcel with seal APS, by means of memo (Ex.PW7/D) attested by Lal Singh and SP Jarnail Singh. He has also taken into possession six pieces of broken bangles, one half burnt Dupatta, pieces of shirt (Ex.P3), one match box (Ex.P4), by virtue of memos (Ex.PW7/E, Ex.PW7/F & Ex.PW7/G) respectively. He has prepared the rough site plan (Ex.PW7/H) of place of recovery, recorded the statements of witnesses and deposited the parcel with MHC Harbhajan Singh. He arrested accused Gurcharan Singh and Surjit Kaur on 12.8.1998, prepared their respective search memos (Ex.PW7/J & Ex.PW7/K) and gave information regarding arrest, vide memo (Ex.PW7/L). He has also testified his entire investigation.  http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ 

14. After the close of the prosecution evidence, the statements of the appellant and acquitted accused were recorded. The entire incriminating material/evidence was put to enable them to explain any circumstance appearing against them therein, as contemplated under section 313 Cr.PC. However, accused Gurcharan Singh has denied the prosecution evidence in its entirety and pleaded false implication in the following manner:-

"Myself and my son are living separately. He lives in the first story building and I and my family (wife) live on the ground floor. We are separate in mess and our ration cards are separate. I will produce my ration card and my son will produce his own ration card. The girl/deceased was to the liking of my son as such she was taken to our house without any dowry with three clothes on her person. The financial position of his father in law was poor as the Girl was to the liking of my son so we brought her to our home. No dowry or shushak was demanded. My son wanted to go to Dubai as it was very paying for masons and carpenters in Dubai. My son wanted to go to Dubai alone because of financial difficulties and language difficulties which was not liked by deceased and on the alleged day of occurrence, she put kerosene oil on her body in upper story of the house and my son tried to save her and in that attempt he also sustained burn injuries. After coming to know of this incident I took both of them to hospital at Rampura and got them admitted. When I was told by medical staff that their condition was serious and for better treatment I took them to Patiala hospital, where she died and my son remained in hospital for one and half months in the hospital. I bore all the expenses for their treatment and medical expenses. Mother of the deceased interviewed my son along with one Rani her relation and demanded money thinking that I had brought lot of money from Dubai. On our refusal they have deposed against us. It is a false case. We are innocent."  

15. Sequelly, the appellant and acquitted accused Surjit Kaur have also adopted the same line of defence. They (appellants) in order to prove their plea of defence, have examined DW1 Avtar Singh @ Autar Singh son of Bachan Singh, Sarpanch of the village, DW2 Balwinder Singh son of Niranjan Singh and DW3 Ranjit Singh son of Phuman Singh Lambardar. Their evidence is to the effect that appellant Jit Singh was separately residing with his wife Rani from his parents. They were having cordial relations with Rani. This is the total oral as well as documentary evidence brought on record by the parties. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ 

16. Taking into consideration the entire evidence on record, accused Gurcharan Singh and Surjit Kaur (parents-in-law) of Rani deceased were acquitted. 

At the same time, appellant Jit Singh (husband) was convicted & sentenced to undergo rigorous imprisonment (for short "RI") for a period of ten years u/s 304-B IPC, by virtue of impugned judgment of conviction dated 4.2.2003 & order of sentence dated 5.2.2003 by the trial Court of Addl. Sessions Judge.

17. At the very outset, it may be added here that State of Punjab has not filed any appeal to challenge the acquittal of remaining accused as the trial Court has only convicted the appellant-husband in this case.

18. Aggrieved thereby, the appellant-husband has preferred the instant appeal. That is how I am seized of the matter. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ 

19. Having heard the learned counsel for the parties, having gone through the evidence on record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, the present appeal deserves to be partly accepted in this context.

20. As indicated here-in-above, Gurcharan Singh and Surjit Kaur, parents-in-law of the deceased, were acquitted by the trial Court. At the same time, the appellant was convicted under section 304-B IPC, which escalates that "Where the death of a woman 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."

21. Therefore, a conjoint and meaningful reading of these provisions would reveal that the prosecution is legally required to prove the following essential ingredients before invoking the provisions of section 304-B IPC:-

(i) The death of wife should be caused by burns or bodily injury or otherwise than under normal circumstances;

(ii) Such death should have been occurred within seven years of the marriage; (iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband;

(iv) Such cruelty or harassment should be for or in connection with demand of dowry soon before her death.

(v) Such cruelty and harassment was made soon before her death.

22. Above being the legal position & evidence on record, now the sole controversy, which invites an immediate attention of this Court and arises for determination in this appeal is, as to whether all the essential ingredients of the offence punishable u/s 304-B IPC are complete or in any case, what offence was committed by the appellant ? http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ 

23. Having regard to the rival contentions of learned counsel for the parties, to me, the prosecution has utterly failed to prove all the essential ingredients of the pointed offence. However, at the same time, it stands proved on record that the appellant had abetted and derived the deceased to commit suicide and he is liable to be convicted & sentenced for the commission of an offence punishable u/s 306 IPC, for the reasons mentioned here-in-below.

24. What cannot possibly be disputed here is that the marriage of the appellant was solemnized on 24th Soun, 1994 with the deceased. It is so stated by PW3 Ram Singh. Concededly, she died an unnatural death on account of burn injuries, within a period of five years of her marriage. Even the case of prosecution from the very beginning was that it was a simple and arranged marriage. Neither the dowry was demanded by the in-laws of the deceased nor given by her father at the time of marriage. The prosecution claimed that after solemnization of the marriage, the appellant and his parents (acquitted accused) started demanding ` 10,000/- from her. The allegations of demand of dowry articles and cash by the parents-in-law were disbelieved and they were acquitted by the trial Court. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ 

25. The crux of the evidence on record would reveal that the complainant gave ` 5000/- to the appellant and he was not satisfied. Still, he demanded ` 10,000/- more from the deceased as he wanted to go to Dubai. Assuming for the sake of argument that if the amount in question was demanded by him, even then, to my mind, it will not attract the penal provisions of section 304-B IPC. Indisputably, there is not an iota of evidence on record, muchless cogent, even to suggest remotely that the deceased was subjected to any legally required cruelty or harassment soon before her death by the appellant in connection with and on account of demand of dowry. The proximity to her death is the pivot indicated by that expression. The legislative object in providing such a radius of time by employing the words 'soon before her death' is to emphasize the idea that her death should, in all probabilities, have been the aftermath of such cruelty or harassment. Meaning thereby, there should be a perceptible nexus between her death and the dowry related harassment or cruelty soon before her death. Proceeding on these premises, the presumption arising under section 113-B of the Indian Evidence Act, 1872 (hereinafter to be referred as "the Act") could not legally be invoked against the appellant in the absence of specific evidence of harassment and cruelty for demand of dowry soon before her death and in the absence of pointed essential ingredients of section 304-B IPC, which are totally lacking in the instant case. 

The Hon'ble Apex Court has examined the similar matter in detail in case Appasaheb and another v. State of Maharashtra 2007(1) RCR (Criminal) 747, wherein, it was held as under (para 9) :- "Two essential ingredients of Section 304-B IPC, apart from others, are (i) death of woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances, and (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". 

The explanation appended to sub- section (1) of Section 304-B IPC says that "dowry" shall have the same meaning as in Section 2 of Dowry Prohibition Act, 1961.

Section 2 of Dowry Prohibition Act reads as under :-

"2. 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 the 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 (shariat) applies."

In view of the aforesaid definition of the word "dowry" any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. Therefore, the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well known social custom or practice in India. It is well settled principle of interpretation of Statutes that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning. (See Union of India v. Garware Nylons Ltd., AIR 1996 S.C. 3509 and Chemicals and Fibres of India v. Union of India, AIR 1997 S.C. 558). A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. The evidence adduced by the prosecution does not, therefore, show that any demand for "dowry" as defined in Section 2 of the Dowry Prohibition Act was made by the appellants as what was allegedly asked for was some money for meeting domestic expenses and for purchasing manure. Since an essential ingredient of Section 304-B IPC viz. demand for dowry is not established, the conviction of the appellants cannot be sustained."

26. In this manner, the evidence of PW1 and PW2 is to the effect that the appellant demanded only ` 10,000/- for going to Dubai. To me, for mere demand of indicated amount, he cannot legally be convicted u/s 304-B IPC. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ 

27. Be that as it may, but the perusal of the evidence on record would reveal that the appellant was residing with the deceased separately on the 1st floor of his house, where she committed suicide. In that eventuality, it was his duty to explain the reasons of her death as to how and in what manner, she died, but he has utterly failed to do so in this regard. The pointed demand is directly related to him only as no other person was going to be benefitted in this respect. He was the ultimate beneficiary of the demand of ` 10,000/- and such like demand can originate from his mouth only, who individually might be interested in enhancing his status by going abroad. This demand could not be met and he started harassing and maltreating his wife Rani. He alone wanted to settle in Dubai, but she might be insisting to accompany him. He demanded ` 10,000/- from her father for the purpose of going abroad. She was fed up with the demand of cash by the appellant. He repeatedly coerced her to demand the cash from her father. Although her father gave ` 5,000/-, but still, he was not satisfied and further compelled her to bring ` 10,000/-.

28. That being the position, Rani committed suicide by burn injuries in the presence of the appellant. In the process of distinguishing the fire and saving her, he also sustained serious burn injuries. Initially, he and his wife were removed and admitted to Civil Hospital, Rampura, from where, they were referred to Rajindra Hospital, Patiala, where Rani died. PW7 has moved an application (Ex.PW7/A) for obtaining the opinion and the doctor of Rajindra Hospital opined, vide his opinion (Ex.PW7/B) that appellant Jit Singh was not fit to make statement, whereas Rani had already expired. It is not a matter of dispute that the appellant remained admitted in the hospital for about 1½ months. It is so admitted by the complainant (PW1). The Investigating Officer (PW7) did not record the statement of appellant in the hospital, for the reasons best known to him. Had the Investigating Officer recorded his statement, then, the things would have taken entirely a different turn. Thus, the prosecution has concealed the origin of the incident. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ 

29. As described here-in-above, the peculiar facts and special circumstances, oozing out from the evidence on record would naturally suggest that the deceased was fed up with the conduct and demand of cash by the appellant and she committed suicide by burn injuries in his presence. She had been subjected to cruelty within the meaning of section 498-A IPC and presumption in terms of section 113-A of the Act is fully applicable to the facts of the present case. Therefore, the appellant is guilty for having committed an offence punishable u/s 306 IPC. It is apparent from the record that he was charge-sheeted u/s 304-B and not specifically u/s 306 IPC.

30. Now the next question that arises for consideration is that in the absence of specific charge, the appellant can be held guilty u/s 306 IPC by this Court. This matter is no more res integra and is now well settled. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ 

31. An identical question came to be decided by the Hon'ble Supreme Court in case K.Prema S.Rao and another v. Yadla Srinivasa Rao and others (2003) 1 Supreme Court Cases 217. Having considered the relevant provisions, it was ruled as under (paras 21 to 25) :-

"21. From the record we find that although a charge specifically under Section 306 IPC was not framed but all facts and ingredients constituting that offence were mentioned in the statement of charges framed under Section 498- A and Section 304-B IPC. 

The statement of charges framed by the trial Court reads thus :-

"That on or about the 22nd day of October, 1989, at your house at Tunikipadu of Gampalagudem Mandal, Yedla Krishna Kumari, wife of A-1 among you and daughter-in-law of A-2 and A-3 among you, committed suicide by consuming poison, and that you all subjected her to such cruelty and harassment as did drive her to commit suicide, with the object of extracting ac. 5.00 of land as dowry to A-1 and thereby committed an offence punishable under Section 304-B of the Indian Penal Code and within the cognizance of this Court.

OR ALTERNATIVELY

That, prior to the 22nd day of October, 1989, at your house at Tunikipadu, you subjected Yedla Krishna Kumari, wife of A-1 among you and daughter-in-law of A-2 and A-3 among you, to such cruelty and harassment as did drive the said Krishna Kumari to commit suicide, and thereby committed an offence punishable under Section 498-A of the Indian Penal Code and within the cognizance of this Court." (emphasis supplied)

22. Mere omission or defect in framing charges does not disable the criminal court from convicting the accused for the offence which is found to have been proved on the evidence on record. The Code of Criminal Procedure has ample provisions to meet a situation like the one before us. From the statement of charge framed under Section 304-B and in the alternative Section 498-A, IPC (as quoted above) it is clear that all facts and ingredients for framing charge for offence under Section 306 IPC existed in the case. The mere omission on the part of the trial Judge to mention Section 306 IPC with 498-A IPC does not preclude the court from convicting the accused for the said offence when found proved. In the alternate charged framed under Section 498-A IPC, it has been clearly mentioned that the accused subjected the deceased to such cruelty and harassment as to drive her to commit suicide. The provisions of Section 221 Cr.PC take care of such a situation and safeguard the powers of the criminal court to convict an accused for an offence with which he is not charged although on facts found in evidence, he could have been charged for such offence. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ 

Section 221 Cr.PC needs reproduction :-

"221. Where it is doubtful what offence has been committed. - (1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.

(2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it."

23. The provision of sub-section (2) of Section 221 read with sub-section (1) of the said section can be taken aid of in convicting and sentencing the accused 1 of offence of abetment of suicide under Section 306 IPC along with or instead of Section 498-A IPC.

24. Section 215 allows criminal court to ignore any error in stating either the offence or the particulars required to be stated in the charge, if the accused was not, in fact, misled by such error or omission in framing the charge and it has not occasioned a failure of justice. See Section 215 Cr.PC which reads :-

"215. Effect of errors. - No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice."  

25. As provided in Section 215 Cr.PC omission to frame charge under Section 306 IPC has not resulted in any failure of justice. We find no necessity to remit the matter to the trial Court for framing charge under Section 306 IPC and direct a retrial for that charge. The accused cannot legitimately complain of any want of opportunity to defend the charge under Section 306 IPC and a consequent failure of justice. The same facts found in evidence, which justify conviction of the appellant under Section 498-A for cruel treatment of his wife, make out a case against him under Section 306 IPC of having abetted commission of suicide by the wife. The appellant was charged for an offence of higher degree causing "dowry death" under Section 304-B which is punishable with minimum sentence of seven years' rigorous imprisonment and maximum for life. Presumption under Section 113-A of the Evidence Act could also be raised against him on same facts constituting offence of cruelty under Section 498-A IPC. No further opportunity of defence is required to be granted to the appellant when he had ample opportunity to meet the charge under Section 498-A IPC."

32. Thus, the ratio of law laid down in the aforesaid judgment "mutatis mutandis" is applicable to the facts of the instant case and is the complete answer to the problem in hand. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ 

33. Therefore, if the conspectus of the totality of the facts & evidence, emitting from the record, as discussed here-in-above, is put together, then, to me, the conclusion is inescapable and irresistible that the appellant had harassed and treated Rani (deceased) with cruelty, within the meaning of section 498-A IPC, demanded ` 10,000/- and his conduct derived her to commit suicide. Meaning thereby, he had abetted the commission of the crime in question. Hence, he deserves to be and is hereby convicted & sentenced for the commission of an offence punishable u/s 306 IPC in the obtaining circumstances of the case.

34. Now adverting to the matter of sentence, as per custody certificate, the appellant has already undergone the considerable period of 3 years, 1 month and 19 days (4 years 3 months and 18 days including remissions). He has already faced the pangs and suffered the agony of protracted trial and appeal for the last more than 15 years. He was a young person at the relevant time of commission of offence. There is no history of his previous involvement in any other criminal case. He has minor child, old parents and there is no other male member in his family to look after them. The learned State counsel has acknowledged this factual matrix. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ 

35. In this view of the matter, to my mind, it would be expedient in the interest and justice would be sub-served if the appellant is sentenced to the period already undergone by him u/s 306 IPC.

36. No other legal point, worth consideration, has either been urged or pressed by the counsel for the parties.

37. In the light of aforesaid reasons, the instant appeal is partly accepted. The appellant is acquitted of the charge u/s 304-B IPC. At the same time, he is, hereby, held guilty and convicted for the commission of an offence punishable u/s 306 IPC. Consequently, he is sentenced to the period already undergone by him. Thus, the impugned judgment of conviction and order of sentence are modified to the extent and in the manner depicted here-in-above. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ 

Needless to mention that the necessary compliance and procedural consequences would naturally follow.

Sd/-

5.9.2013 

(Mehinder Singh Sullar) AS Judge





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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn't given up, Male, activist