Conviction – Cruelty and demand of dowry – No evidence deceased harassed by accused soon before death of dowry demand – Deceased committed suicide – Conviction altered from section 304B to 306.

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Rajesh Trehan v. State of Uttarakhand, (Uttarakhand) : Law Finder Doc Id # 1721003
UTTARAKHAND HIGH COURT
Before:- R.C. Khulbe, J.

Criminal Appeal No. 283 of 2006. D/d. 12.05.2020.

Rajesh Trehan & others – Appellants

Versus

State of Uttarakhand – Respondents

For the Appellants:- Mr. Ramji Srivastava with Mr. Shankar Aggarwal, learned Counsel.

For the State:- Ms. Mamta Joshi, Brief Holder.

For the Informant:- Mr. Aditya Singh, Advocate.

IMPORTANT

Conviction – Cruelty and demand of dowry – No evidence deceased harassed by accused soon before death of dowry demand – Deceased committed suicide – Conviction altered from section 304B to 306.

Indian Penal Code, 1860 Section 498A Dowry Prohibition Act, 1961 Section 4 Appeal against Conviction – Cruelty and dowry demand – Due to physical and mental harassment by husband for non-fulfilment of dowry demand, victim set ablaze herself resulting in her death – Oral testimonies of prosecution witnesses establishing that deceased was subjected to harassment by her husband – No evidence to show that deceased was harassed or tortured by accused soon before her death for demand of dowry – Testimony of prosecution witness that accused persons not only living separately but also never caused injury to deceased – Said testimony corroborated by that of maid servant working in deceased’s house – No evidence available against accused persons regarding demand of dowry or harassment – Accused persons entitled to acquittal – Even in dying declaration, deceased mentioned about demand of dowry – Conviction of mother-in-law of deceased, proper – Perusal of dying declaration only revealing that deceased set her ablaze due to petty dispute with her husband – Accused not committed offence of dowry death – Deceased committed suicide due to harassment by her husband – Case made out under S. 306 of Penal Code – Conviction altered from Sections 304-B to Section 306 of Indian Penal Code, 1860.

[Paras 36, 37, 39, 45, 60, 62 and 63]

Cases Referred :

Hira Lal v. State (Govt. of NCT), Delhi[(2003) 8 SCC 80]

Satvir Singh v. State of Punjab [(2001) 8 SCC 633]

Sham Shankar Kankaria v. State of Maharashtra (2006) 13 SCC 165

JUDGMENT
R.C. Khulbe, J. – This appeal is directed against the judgment and order dated 18.12.2006 passed by learned Additional Sessions Judge, Dehradun in S.T. No.06/2000 whereby the Court below has convicted the appellant-Rajesh Trehan under Section 304-B IPC and sentenced him to undergo seven years’ rigorous imprisonment with fine of Rs.10,000/-, and in case of default of fine, he was directed to undergo one year’s additional imprisonment. He was further convicted under Section 4 of Dowry Prohibition Act and sentenced to undergo one year’s imprisonment with fine of Rs.5,000/-, and in default, he was directed to undergo three months’ additional imprisonment.

2. Appellants-Kanta Rani @ Shakuntla, Sunil @ Titu and Smt. Anju were convicted under Section 498-A IPC and each of them was sentenced to undergo three years’ rigorous imprisonment with fine of Rs.5,000/- each, in default they were directed to undergo six months’ imprisonment. They were further convicted under Section 4 of Dowry Prohibition Act and sentenced to undergo one year’s imprisonment with a fine of Rs.5,000/- each, in default of payment of fine, they were directed to undergo three months’ imprisonment.

3. Facts, in nutshell, are that PW1 Arun Kumar submitted an application to the SHO, Vikasnagar, District Dehradun stating therein that his sister Ritu was married with Rajesh Trehan on 04.12.1998 at New Delhi. Some days after marriage, the brother in law of Rajesh Trehan namely Pravesh Kumar and sister Sunita @ Babli came to his house and stated that the accused’s mother, brother Sunil @ Titu and sister in law Anju were stating of giving very less items and cash in the marriage. On his saying that he has given the articles and cash beyond status, Rajesh and his family members began to give mental tortures to complainant’s sister Ritu, and on non-fulfillment of this demand, they began to give physical and mental tensions to Ritu. This way, the fact of Marpit and abuses became the talk of the day. One day, Ritu informed all this over phone; then in the month of August, 1998, he went to Vikas Nagar, had a conversation with her in-laws and brought Ritu to Delhi along with him. After some days, Rajesh’s mother, sister, brother, sister in law and maternal uncle Inderjeet Nanda, who had solemnized this marriage, came and get the matter compromised, due to which Ritu was again sent to her in-laws house. After some days, again the tortures started on Ritu and they began to make a demand of a Maruti Car. Ritu informed her brother over phone that for non-fulfillment of this demand, these people beat her and keep her hungry; the threat to her life was also given by her husband, mother in law, brother in law and sister in law. It is also stated in Ex.Ka-1 that on 15.4.1999 at 5:30 AM, maternal uncle Inderjeet and sister in law came and informed about the fact of burning of Ritu as also taking her away to PGI Chandigarh. On reaching there, Ritu informed the complainant that for last four days, these people were physically and mentally torturing her and she has set the fire being bothered by their tortures. With these averments, the FIR was lodged.

4. The matter was thereafter investigated and on completion of investigation, respective charge- sheets were submitted against the accused.

5. Learned Sessions Judge, Dehradun, accordingly, framed the Charge against the appellants u/s 304-B, 498-A IPC and Section 4 of the Dowry Prohibition Act. The charges were read over and explained to the appellants who pleaded not guilty and claimed to be tried.

6. To prove its case, the prosecution examined PW1 Arun Kumar, PW2 Deepa Kapoor, PW3 Dr. A.K. Chaubey, PW4 Pooran Singh Rawat, PW5 Thakur Dass, PW6 Chander Prakash, PW7 Som Nath, PW8 Parvez Khan, PW9 Devendra Singh, PW10 Smt. Asha, PW11 Smt. Jitendra, PW12 Pooja Kapoor, PW13 Dy. Supt. Kalpana Saxena and PW14 Dr. S.S. Rawat,

7. After completion of prosecution evidence, the statements of accused-appellants were recorded u/s 313 of Cr.P.C., wherein, they denied the allegations made by the prosecution.

8. In the defence, DW1 Abdul Vasit was produced, who proved the dying declaration given by deceased-Ritu ,which is Ex.Kha-1 (paper no.142-Ka).

9. I have carefully heard learned Counsel for the either party and perused the entire evidence available on the record.

10. As per the prosecution evidence available on record, Arun Kumar PW-1, who is the brother of deceased, has stated in his examination-in-chief that the marriage of his sister was solemnized at Delhi with the accused Rajesh Trehan on 04.12.1997 and she had gone to her in-laws house at Vikas Nagar. In the in-laws house, on those days, her mother in law Smt. Kanta, her brother in law Sunil @ Titu and her sister in law Smt. Anju were residing along with her. Just after 20-25 days of marriage, accused Sunita and Pravesh came to his house at Delhi and they stated that the dowry given in the marriage is lesser; it was also informed that Rajesh, his mother Kanta Rani, Sunil @ Titu and Anju were not happy with the dowry and they have got lesser dowry to what they had expected. With folded hands, he replied that he gave dowry much beyond his status. The accused then went back and thereafter, his sister Ritu telephoned and informed him that she was very unhappy as her husband Rajesh Trehan, his mother, brother and sister in law physically and mentally harass her for bringing lesser dowry. They say that they had expected a Maruti car but it was not given. This witness persuaded his sister that he would come to her and then everything would be settled. In August 1998, when he went to the in-laws house of his sister Ritu, he noticed a mark of injury on her eye. On being enquired, she informed that these people demand a Maruti car and for this reason, Rajesh (her husband) has severely beaten her. Then taking his sister along, he came to Delhi. This witness has also deposed about the subsequent arrival of accused Rajesh, Kanta, his brother in law Pravesh, sister Sunita @ Babli and maternal uncle Inderjeet Nanda, to his house, when they requested to take Ritu with them, and to this effect, a written assurance (Ex.Ka-2) was also reduced into writing which bears the signatures of Rajesh Trehan. Thereafter, he sent his sister Ritu (deceased) along with him at Dehradun. After some time, accused Sunita @ Babli and Pravesh Kumar came to his house and said that till the demand of Maruti is not met, Ritu would not remain happy. He along with his family members showed inability to meet the demand, even then, he gave a sum of Rs.10,000/- cash besides a gold chain. Again thereafter, the phone call of deceased Ritu was received that her inlaws do beat her and make demand of car. On stating about the fact of giving Rs.10,000/- cash and a gold chain, Ritu informed that this did not bring any change in their behaviour. Thereafter, on 15th April, 1999 at 5:30 of the morning, accused Inderjeet Nanda and Pravesh came and informed that Ritu has been burnt and she has been taken to PGI Chandigarh. After reaching Chandigarh and enquiring the doctor, the doctor stated about her being 80-90 percent burnt. This witness has also stated about recording the statement of Ritu by the Magistrate at Chandigarh itself. It is also informed that when he enquired Ritu about the reason of her burning, then it was informed by her that she had been kept famished for 4 days, and she was also subjected to physical and mental tortures, and on being coerced, she set ablaze herself. This witness lodged the report of the occurrence at P.S. Vikas Nagar, Dehradun which is Ex.Ka-1. This witness has proved the photographs relating to the marriage of his sister and accused as Exs.1 to 13.

11. PW2 Deepak Kumar is also another brother of deceased who reiterated the evidence of PW1 Arun Kumar.

12. PW3 Dr. A.K. Chaubey deposed that on 15.04.1999, he was present at Krishna Nursing Home, Vikas Nagar. On that day, accused Rajesh and his relatives had brought Ritu in 85 per cent burnt condition in the hospital for treatment. Her condition was serious. After the primary treatment, she was referred to the higher centre i.e. Doon Hospital or PGI Chandigarh. The certificate of this effect was given by him on 24.04.1999 to the Investigating Officer, which is Ex.Ka-3.

13. PW4 Pooran Singh Rawat and PW8 Pravez Khan are the witnesses of Memo of Recovery of Jerry Cane and Matchbox but they both did not support the prosecution story and were declared hostile.

14. PW5 Thakur Das is the witness of Inquest Report Ex.Ka-9.

15. PW6 Chander Prakash deposed that his office is near the office of Deepak Kapoor and he had visiting terms with Deepak Kapoor, so he knew his sister Ritu. Ritu had informed about her dispute with her in-laws. Thereafter, a compromise had taken place.

16. PW7 Somnath stated that being a neighbour of Arun Kapoor and Deepak Kapoor, he had visiting terms. The marriage of Ritu was solemnized with Rajesh at Ambedkar Bhawan in a grandeur manner. After some time of marriage, Ritu informed him that her in-laws were torturing her and demanding a car. In this regard, accused had written a compromise letter.

17. PW9 Devender Singh Balonia has deposed that on 22.04.1999, the Inquest Report of Smt. Ritu was prepared in his supervision, which is Ex.Ka-9. On the basis of opinion of the Panch, the body of deceased was sent for post-mortem.

18. The prosecution produced PW10 Asha, who was the maid at the house of the accused but she clearly stated that she does not know how Ritu passed away.

19. PW11 is Smt. Jitender Walia, Judicial Magistrate, who has stated that on 15.04.1999, she was posted as a Judicial Magistrate at Chandigarh. On that day, SI Charanjeet Singh submitted to her a letter of request for recording the dying declaration of Smt. Ritu, who was admitted at PGI Chandigarh. She went there and requested the doctor to submit report about her ability to depose. After obtaining the certificate, she recorded the statement of Smt. Ritu, which is Ex.Ka-11.

20. PW12 Pooja Kapoor deposed that Ritu was her sister-in-law, whose marriage was solemnized with Rajesh Trehan resident of Vikas Nagar, Dehradun in the year 1997. Ritu was not happy with the marriage. Her mother-in-law, brother-in-law and sister-in-law used to torture her for the demand of dowry. In this regard, accused had written an apology letter.

21. PW13 Kalpana Saxena is the Deputy Superintendent of Police, who was posted as the Circle Officer, Vikas Nagar in the year 1999 and stated that she obtained the investigation from S.I. Harbeer Singh, who was posted along with her. She proved the spot map Ex.Ka-12, prepared by S.I. Harbeer Singh. She has proved the factum of recording the statements of witnesses and submission of charge sheet(s) Ex.Ka-13 to Ka-15 against the accused on the completion of investigation.

22. PW14 Dr. Surender Singh Rawat proved the post-mortem report Ex.Ka-17.

23. I have heard the learned Counsel for either party at length, who have taken me through the evidence placed on record.

24. In support of the appeal, Mr. Ramji Srivastava, learned counsel appearing on behalf of the appellants, argued that the prosecution has miserably failed to prove that the appellants had, at any point of time, made demand of dowry or the deceased was subjected to cruelty or harassment by them, and that demand was for, or in connection with the demand of dowry, immediately before the death of Ritu and therefore in absence of any reliable evidence led by the prosecution, the conviction of appellants is wholly unjustified.

25. Per contra, learned Counsel appearing on behalf of the State argued that Section 304-B IPC is required to be read in context of Section 113-B of the Evidence Act. The Court could presume the death of the deceased to be dowry death and it was open to the Court to presume that the appellant-Rajesh being husband of the deceased was responsible for the dowry death of the deceased.

26. Section 304B, IPC, deals with ‘dowry death’, which, for the sake of convenience, is reproduced hereinbelow:-

“304B. 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 of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.
Explanation:-For the purpose of this sub-section, “dowry” shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.”
27. The legislature has also introduced section 113B of the Evidence Act alongside insertion of Section 304B, IPC.

“113B. Presumption as to dowry death-When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation:-For the purpose of this Section “dowry death” shall have the same meaning as in Section 304B of the Indian Penal Code (45 of 1860).”
28. The basic ingredients to attract the provisions of Section 304B, IPC, are as follows:-

“(1) That the death of the woman was caused by any burns or bodily injury or in some circumstances which were not normal;
(2) such death occurs within 7 years from the date of her marriage;
(3) that the victim was subjected to cruelty or harassment by her husband or any relative of her husband;
(4) such cruelty or harassment should be for or in connection with the demand of dowry; and
(5) it is established that such cruelty and harassment was made soon before her death”
29. In the case of unnatural death of a married woman, as in a case of this nature, the husband could be prosecuted under Sections 302, 304-B and 306 of the Penal Code. The distinction as regards commission of an offence under one or the other provisions, as mentioned hereinbefore, came up for consideration before a Division Bench of Hon’ble the Apex Court in the case of “Satvir Singh v. State of Punjab [(2001) 8 SCC 633]” wherein, it was held that: (SCC P. 643, paras 21-22)

“21. Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third is ‘at any time’ after the marriage. The third occasion may appear to be an unending period. But the crucial words are ‘in connection with the marriage of the said parties’. This means that giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties. There can be many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of ‘dowry’. Hence the dowry mentioned in Section 304-B should be any property or valuable security given or agreed to be given in connection with the marriage.
22. It is not enough that harassment or cruelty was caused to the woman with a demand for dowry at some time, if Section 304-B is to be invoked. But it should have happened ‘soon before her death’. The said phrase, no doubt, is an elastic expression and can refer to a period either immediately before her death or within a few days or even a few weeks before it. But 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 emphasise the idea that her death should, in all probabilities, have been aftermath of such cruelty or harassment. In other words, there should be a perceptible nexus between her death and the dowry-related harassment or cruelty inflicted on her. If the interval which elapsed between the infliction of such harassment or cruelty and her death is wide the court would be in a position to gauge that in all probabilities the harassment or cruelty would not have been the immediate cause of her death. It is hence for the court to decide, on the facts and circumstances of each case, whether the said interval in that particular case was sufficient to snuff its cord from the concept ‘soon before her death’.”
30. Likewise, in Hira Lal v. State (Govt. of NCT), Delhi[(2003) 8 SCC 80], the Hon’ble Apex Court observed that: (SCC pp.86-87, para 9)

“………The expression ‘soon before her death’ used in the substantive Section 304-B, I.P.C. and S.113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression ‘soon before’ is not defined. A reference to the expression ‘soon before’ used in S.114, Illustration (a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods ‘soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for their possession.’ The determination of the period which can come within the term ‘soon before’ is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression ‘soon before’ would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence.”
31. It is also argued by the learned counsel for the appellants that there are two dying declarations made by deceased Ritu; the first one was recorded by the Naib Tehsildar DW1 Abdul Vasit on 15.04.1999 and the second dying declaration was recorded by the PW11 Smt. Jitender Walia, J.M., Chandigarh on 15.04.1999. There are many contradictions between these two dying declarations, which show that the deceased herself poured diesel on her and set ablaze herself.

32. Dying declaration dated 15.04.1999 is in the form of statement which reads as follows:-

“Dying Declaration
Smt. Ritu wife of Rajesh R/o Pahadi Gali Vikas Nagar Dehradun aged about 22 years Statement begin 3.30 a.m. dated 15.4.99. On making question she made statement that at about 12.15 in the night when I was warming up the milk for child the stove blasted and my cloths caught fire. When fire caught my cloths I cried then my husband, mother in law and other persons came and extinguished the fire. Thereafter they firstly got admitted me in Doon Hospital and thereafter got admitted at Ashirwad Nursing Home. None has burnt me. Heard this statement and verified. Closing time of statement 3.40 a.m. dated 15.4.99.
Sd.
Thumb impression
3.40 a.m.
Rita
N.T.
Dr. Kalara present in Ashirwad Nursing Home Ballupur has refused to write about the conscious condition stating that the aforesaid patient is not admitted in their nursing home and only brought her for treatment and the case has been referred to some other place.
Sd. 15.4.99.”
33. On the other hand, the second dying declaration of the same date i.e. 15.04.1999 is recorded by the Judicial Magistrate in the format which reads as follows:-

“DDR No.22 dated 15.4.99 P.S. West Chd. Statement of Smt. Ritu W/o Rajesh Kumar R/o Pahari ‘Gali Vikas Nagar, Dehradun aged 22 years.
Q. How you sustained the injuries?
Ans. Yesterday night I had a dispute regarding a petty matter with my husband so I put diesel on my body and set myself on fire.
Q. When did you get married?
Ans. About one year and four months back.
Q. Who is living with you?
Ans. My mother in law, my elder sister in law and brother in law besides my husband, reside with me.
Q. Is there any foul play in setting you on fire?
Ans. I put myself on fire because I had got fed up with the demand of my family who were demanding dowry from me time and again.
Sd. Illegible

Jitender Walia

15.4.99

Camp at PGI”

34. No doubt, a dying declaration is an extremely important piece of evidence and where the Court is satisfied that the dying declaration is truthful, voluntary and the same is not a result of any extraneous influence, the Court can convict the accused solely on the basis of a dying declaration. I need not refer to the entire law to burden this judgment but it would be apposite at this stage to refer to the judgment of Hon’ble Apex Court in the case of Sham Shankar Kankaria v. State of Maharashtra (2006) 13 SCC 165 held as follows:

“11. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of deceased was not as a result of either tutoring or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence………..”
35. In the present matter, PW3 Dr. A.K. Chaubey is a formal witness, who provided the first aid to the deceased Ritu. PW4 Pooran Singh Rawat and PW8 Pravez Khan did not support the prosecution story and were declared hostile. PW5 Thakur Das is the witness of Panchanama. PW6 Chander Prakash and PW7 Somnath are the neighbours of PW1 Arun Kumar and PW2 Deepak Kumar. PW9 Devender Singh is also a formal witness in whose presence Panchanama was prepared. PW10 Asha was the maid servant who was working in the house of the deceased Ritu but she did not support the prosecution story.

36. PW12 Pooja Kapoor is an important and star witness of the case. This witness is the wife of Deepak Kapoor, who is the brother of the deceased. She clearly stated before the trial Court that the husband of deceased Ritu and her mother-in-law used to demand dowry from Ritu. In the family of Ritu at her matrimonial house, her mother-in-law and husband were living and they had their separate fooding and lodging. She further stated that Ritu’s brother-in-law and sister-in-law were residing separately. Rajesh and Sunil, both brothers, had their separate businesses. During the cross- examination, she clearly stated that the brother-in- law and sister-in-law of Ritu had never caused any injury to Ritu. Ritu never made any complaint to her about the behaviour of her brother-in-law and sister- in-law.

37. The above facts are also corroborated by the evidence of PW10 Asha, who was the maid of deceased Ritu. She clearly stated in her cross- examination that she had been working there before the marriage of Rajesh. She also stated that after the marriage of Rajesh, his brother Sunil was living separately.

38. PW12 Pooja is the sister-in-law of the deceased Ritu and after marriage, this witness Pooja also went to the matrimonial house of Ritu and was well-acquainted with her in-laws. She clearly stated that in the matrimonial house, Ritu, her husband and her mother-in-law were residing, whereas, Sunil used to live separately with his wife and to take their food separately. They never committed any marpeet with Ritu.

39. From the perusal of the statement of PW12 Pooja Kapoor, it is clear that there is no evidence against the appellants – Anju and Sunil @ Titu regarding any demand of dowry or harassment towards Ritu. There is no clinching evidence against the above appellants, namely, Anju and Sunil @ Titu regarding any harassment. The trial Court did not properly appreciate the evidence of the above star witnesses. As per the evidence led by the prosecution, it is clear that appellants- Smt. Anju and Sunil @ Titu had been living separately from the date of the marriage of Ritu and they had their own businesses. Ritu never made any complaint about their behaviour. In these circumstances, appellants- Anju and Sunil @ Titu are liable to be acquitted under Section 498-A IPC and Section 4 Dowry Prohibition Act and accordingly, these accused Anju and Sunil @ Titu are acquitted under these sections.

40. As regards the offence under Section 498- A IPC and Section 4 of Dowry Prohibition Act against appellant-Kanta Rani @ Shankuntla is concerned, PW1 Arun Kumar and PW2 Deepak Kumar and PW12 Pooja Kapoor have stated in unequivocal terms in their statements that after the marriage of Ritu, her husband Rajesh and mother-in-law Kanta Rani @ Shakuntla used to torture Ritu and were demanding dowry. PW2 Deepak Kapoor also deposed that after 20-25 days of marriage, Sunita and Pravesh came to their house and informed that Rajesh Trehan and his family members were not happy due to the insufficient dowry given in the marriage of Ritu. He further stated that after some days, accused came to his house and a compromise was taken place regarding it. The apology letter dated 22.08.1998 is on record, in which appellant-Rajesh Trehan has tendered his apology and gave the assurance that he would not torture his wife-Ritu in future and would keep her happy.

41. The contents of the above apology letter duly corroborate the oral testimony of PW1 Arun Kumar and PW2 Deepak Kapoor. The above oral testimony is also corroborated by PW12 Pooja Kapoor.

42. Cruelty is dealt with in the explanation to Section 498-A IPC, which is as follows:

“Explanation.-For the purpose of this section, “cruelty” means-
(a) 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
(b) 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.]”
43. Before going further it is very useful to reproduce Section 498-A IPC, which reads as under:

“[498A. Husband or relative of husband of a woman subjecting her to cruelty.-Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine”
44. Conviction under Section 498-A IPC is for subjecting a woman to cruelty. Cruelty is explained as any willful conduct which is likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health. Harassment of a woman by unlawful demand of dowry also partake the character of cruelty. From the perusal of Section 498-A IPC, it is clear that the conviction for an offence under Section 498-A IPC can be for willful conduct, which is likely to drive a woman to commit suicide or for dowry demand.

45. From the perusal of apology letter dated 22.08.1998, dying declaration dated 15.04.99 (Ex.Ka-11) recorded by PW11 Smt. Jitender Walia as well as the oral evidence, I have come to the conclusion that the deceased Ritu was harassed and tortured by the appellants-Rajesh Trehan and Smt. Kanta after the marriage. In this regard, the trial Court has properly assessed the evidence against the appellant-Smt. Kanta in finding her guilty under Section 498-A IPC and Section 4 of Dowry Prohibition Act for her willful conduct.

46. As regards the appellant-Rajesh Trehan is concerned, he has been convicted under Section 304-B IPC read with Section 4 of Dowry Prohibition Act. There are five basic ingredients to attract the provisions of Section 304B, IPC, which read as follows:-

“(1) That the death of the woman was caused by any burns or bodily injury or in some circumstances which were not normal;
(2) such death occurs within 7 years from the date of her marriage;
(3) that the victim was subjected to cruelty or harassment by her husband or any relative of her husband;
(4) such cruelty or harassment should be for or in connection with the demand of dowry; and
(5) it is established that such cruelty and harassment was made soon before her death”
47. From the oral evidence of PW1 Arun Kumar and PW2 Deepak Kapoor, it is clear that the marriage of deceased Ritu was solemnized with appellant-Rajesh Trehan on 04.12.1997 and she took her last breath on 21.04.1999, which shows that the death of Ritu occurred within seven years from the date of her marriage. From the perusal of dying declaration dated 15.04.1999 (Ex.Ka-11) and post-mortem report (Ex.Ka-16), it is also evident that the deceased Ritu succumbed to burn injuries.

48. From the perusal of the oral evidence given by PW1 Arun Kumar, PW2 Deepak Kapoor and PW12 Pooja Kapoor, and the apology letter dated 22.08.1998, it is clear that Ritu was subjected to cruelty or harassment by her husband Rajesh Trehan.

49. To convict a person under Section 304-B IPC, apart from above ingredients, it is the duty of the prosecution to prove the case beyond reasonable doubt that cruelty or harassment was caused by the accused ‘in connection with the demand of dowry’ and such cruelty or harassment was made ‘soon before her death’.

50. The learned counsel appearing on behalf of the informant fairly submitted that the deceased Ritu was harassed by her husband and mother-in- law just after the marriage and in this regard, appellant-Rajesh Trehan had also already written an apology letter in the year 1998. He also submitted that Ritu had committed suicide by pouring diesel on herself.

51. In the present matter, when the deceased was admitted at PGI Chandigarh, her dying declaration was recorded by PW11 Smt. Jitender Walia, J.M., which is Ex.Ka-11. A perusal of dying declaration Ex.Ka-11 reveals that the deceased clearly stated before the Magistrate that “yesterday night I had a dispute regarding a petty matter with my husband, so I put diesel on my body and set myself on fire”. In the end, she also stated that “I put myself on fire because I had got fed up with the demand of my family who were demanding dowry from me time and again”.

52. From the perusal of the above dying declaration, it is clear that deceased Ritu was fed up due to her harassment by the accused Rajesh, as a result of which, she poured diesel on her body and set her on fire. She clearly stated that on the last night, she had a dispute regarding a petty matter with her husband, due to which, she adopted this harsh step.

53. To attract the provision of Section 304-B, one of the main ingredients of the offence which is required to be established is that ‘soon before death’ the deceased was subjected to cruelty or harassment ‘in connection with demand for dowry’. But, in the present case, there is no evidence that the deceased was harassed or tortured by the husband ‘soon before her death’ for demand of dowry, because as per dying declaration, she had a dispute with her husband regarding a petty matter on the previous night. In her statement, she did not give any clear statement that her husband demanded dowry ‘soon before her death’. Although from the oral evidence, it is clear that after the marriage, her husband and mother-in-law tortured her and demanded a car but it is not clear whether the accused Rajesh had demanded car ‘soon before her death’. There is no clinching evidence to prove that the accused Rajesh Trehan had demanded any dowry or tortured her ‘soon before her death’.

54. Upon meticulous scrutiny of the entire evidence on record, I have come to this conclusion that there is no evidence to indicate the commission of offence under Section 304-B IPC. Hence, no case is made out against the accused for the offence punishable under Section 304-B IPC.

55. From the evidence, it is clear that the deceased committed suicide because on the previous night i.e. on 14.04.1999, she had a dispute with her husband Rajesh Trehan and the deceased was extended physical and mental torture and even she was not provided food, and due to this torture, she took a harsh step of ending her life by pouring diesel on her.

56. The constituents of an offence under Section 306 IPC are suicidal death and abatement thereof. Although the definition of suicide is missing in the Code but ‘Sui’ means ‘Self’ and ‘cide’ means ‘killing’ thus, implying an act of ‘self-killing’. In short, a person committing suicide must commit it by himself or herself, irrespective of the means employed by him or her in achieving his or her object of killing himself or herself.

56-A. From the perusal of the evidence, it is clear that Ritu committed suicide due to the harassment caused by her husband Rajesh.

57. It is true that Section 222 Cr.P.C. entitles the Court to convict a person for an offence which is minor in comparison to the one for which he is tried. In the present matter although charge under Section 306 IPC has not been framed by the trial Court, but it is settled proposition of law that mere omission or defect in framing the charge would not disable the Court from convicting the accused for the offence which has been found to be proved on the basis of evidence on record. In such circumstances, it would be in the interest of justice to convict the appellant- Rajesh under Section 306 IPC instead of Section 304-B IPC.

58. In these circumstances, I have reached to the conclusion that the accused-Rajesh Trehan is liable to be convicted under Section 306 IPC instead of Section 304-B IPC.

59. As regards the sentence part against the appellant-Rajesh Trehan is concerned, the occurrence took place in the year 1999, and more than twenty years have elapsed since then. During the argument, it is admitted by both the learned advocates appearing on behalf of the appellants as well as the informant that appellant-Rajesh Trehan did not solemnize any second marriage and his daughter is living with him since the incident took place. In these circumstances, one year’s rigorous imprisonment is justified for the offence punishable under Section 306 IPC.

60. The appellant-Smt. Kanta Rani @ Shakuntla is also an old and infirm lady. Her statement under Section 313 Cr.P.C. was recorded on 29.10.2005 and at that time she was 60 years old. Accordingly, it can now be inferred that she has crossed 75 years of age. Keeping in view her age and physical condition, six months’ imprisonment is sufficient for her for the offences punishable under Section 498-A IPC and Section 4 of Dowry Prohibition Act.

61. In view of the above observations, the appeal is partly allowed. Appellant Rajesh Trehan is acquitted for the offence punishable under Section 304-B IPC, and at the same time, he is convicted for the offence punishable under Section 306 IPC and is sentenced to undergo one year’s rigorous imprisonment and to pay a fine of Rs.30,000/-(Rupees Thirty Thousand), in default of payment of fine, he will serve three months’ additional imprisonment. The finding regarding Section 4 of Dowry Prohibition Act will remain intact. Both the sentences will run concurrently.

62. Appellant-Smt. Kanta Rani @ Shakuntla will undergo six months’ imprisonment for the offences punishable under Sections 498-A IPC and Section 4 of Dowry Prohibition Act. The fine as imposed by the trial Court will remain intact. In default of payment of fine she will serve one month’s additional imprisonment. Both the sentences will run concurrently.

63. Appellants-Smt. Anju and Sunil @ Titu are however acquitted of the charges under Section 498- A IPC and Section 4 of Dowry Prohibition Act in view of the discussion made hereinabove in the body of judgment. Their bail bonds stand discharged.

64. Let the lower Court’s record be sent back for compliance.

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