Wasim v. State of NCT Delhi

15. M.L. Meena (PW-22), Senior Scientific Officer, FSL Rohini stated that on 14th January, 2016 one sealed wooden box with the seal of “SGMH Mortuary Mangol Puri Delhi-83” was deposited by Ct. Vinod containing stomach and pieces of small intestine in a jar, pieces of liver, spleen and kidney in another jar and blood sample in a third jar. On chemical, microscopic and TLC examination, no common poison could be detected from the aforesaid exhibits. His report was proved vide Ex. PW-22/A.

16. The main issue urged by learned counsel for the appellant is that the appellant could not have been convicted for the offence punishable under Section 306 IPC as charge for offence punishable under Section 304B IPC only was framed and no charge for offence punishable under Section 306 IPC was framed against him.

17. The issue that an accused who has been charged for offence punishable under Section 304B IPC can be convicted for offence punishable under Section 306 IPC in the absence of a charge on this count, is no longer res integra having been settled by the Supreme Court in the decisions reported as AIR 2003 SC 2865 Hira Lal & Ors. Vs. State (Government of NCT) Delhi and 2013 (7) SCC 108 Gurnaib Singh Vs. State of Punjab. Distinguishing the decision of the Supreme Court in (2001) 2 SCC 577 Shamnsahed M.Multtani Vs. State of Karnataka, the Supreme Court in these two decisions held that though 304B IPC cannot be treated as a minor offence of 302 IPC for the reasons the ingredients of the two offences are different and there is no presumption available under Section 113 (b) of Indian Evidence Act for an offence punishable under Section 302 IPC however after the amendment in the Evidence Act with the introduction of Section 113(a), Indian Evidence Act, a presumption akin to Section 113(b) of the Indian Evidence Act is available for offence punishable under Section 306 IPC. Thus in a given case, if the prosecution is not able to prove that soon before death there was a demand of dowry but proves that there was cruelty which was sufficient to abet commission of suicide, offence punishable under Section 306 IPC would be made out. In such a case presumption under Section 113(a) of the Indian Evidence Act is required to be raised and the accused can be convicted for offence punishable under Section 306 IPC.

18. In Gurnaib Singh’s case, Supreme Court held as under:-

11. Mr V. Madhukar, learned counsel for the respondent State, resisting the aforesaid submissions, has contended that marshalling of the evidence by the trial court and the reappraisal by the High Court withstand close scrutiny and there is no justification to interfere with the concurrent finding of guilt. Alternatively, it is put forth by him that assuming that the offence under Section 304-B IPC is not brought home, still the material on record would justify a conviction under Section 306 IPC which would not impel this Court to interfere with the quantum of sentence.

12. To appreciate the rival proponements advanced at the Bar, we think it apposite to refer to Section 304-B IPC which deals with dowry death. It reads as follows: “304-B.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 purposes 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.”

13. To get the said provision attracted, certain ingredients are to be satisfied. Scanning the said provision, this Court in Satvir Singh v. State of Punjab [(2001) 8 SCC 633: 2002 SCC (Cri) 48] has stated thus: (SCC p. 641, para 14)

14. In this context, it is apposite to refer to Section 113-A of the Evidence Act, 1872. The said provision is extracted below: “113-A.Presumption as to abetment of suicide by a married woman.—When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.”

15. Section 113-B, which provides for presumption as to dowry death, was inserted with a view to fight against the plague of dowry death. The said provision is as follows: “113-B.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 has 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 304-B of the Indian Penal Code (45 of 1860).”

16. Interpreting the aforesaid provisions in juxtaposition with Section 304-B IPC, this Court, in Hira Lal v. State (Govt. of NCT of Delhi) [(2003) 8 SCC 80: 2003 SCC (Cri) 2016], has expressed thus: (SCC p. 86, para 9) “9. A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of ‘death occurring otherwise than in normal circumstances’. The expression ‘soon before’ is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by the prosecution.” The learned Judges, while proceeding further and interpreting the expression “soon before”, opined thus: (Hira Lal case [(2003) 8 SCC 80: 2003 SCC (Cri) 2016], SCC p. 87, para 9)

17. Keeping in view the aforesaid principles, it is to be seen whether the deceased was driven to commit suicide because of the harassment meted out to her in connection with demand for dowry. The learned trial Judge as well as the High Court has accepted the evidence of the brother, PW 1; the father, PW 4 and PW 5, Numberdar of the village that there was demand for dowry. The learned counsel for the appellant would submit that the finding recorded on this score is not based on the material on record but founded on surmises. To test the acceptation of the said submission, we have thought it apt to scrutinise the evidence of PWs 1, 4 and 5:

17.1. PW 1, brother of the deceased, has only made a bald statement that the accused persons were not satisfied with the dowry and were asking his sister to bring a sum of Rs 50,000. Similar is the testimony of PWs 4 and 5. That apart, nothing has been stated by the witnesses. It has been deposed by the father that the deceased had written two to three letters stating about the demand for dowry but the said letters have not been brought in evidence. That apart, the brother, PW 1, in crossexamination, has refuted the same. It is also noticeable that PW 4 had not told his other daughters about the demand for dowry which is expected of a father.

17.2. Thus, on the base of such sketchy evidence, in our considered opinion, it is difficult to concur with the finding that there was demand for dowry by the accused husband and the harassment pertained to such a demand. The conclusion on this score, we are inclined to think, is based on certain a priori notions. When such a conclusion is arrived at which is manifestly erroneous and unsupported by the evidence on record, needless to say, this Court, in exercise of power under Article 136 of the Constitution, can re-evaluate and interfere. This has been so stated in Alamelu v. State [(2011) 2 SCC 385: (2011) 1 SCC (Cri) 688], Heinz India (P) Ltd. v. State of U.P. [(2012) 5 SCC 443: (2012) 3 SCC (Civ) 184: (2012) 3 SCC (Cri) 198] and Vishwanath Agrawal v. Sarla Vishwanath Agrawal [(2012) 7 SCC 288: (2012) 4 SCC (Civ) 224: (2012) 3 SCC (Cri) 347].

18. Presently we shall dwell upon the other limb of cruelty as engrafted under Section 498-A. Section 498-A deals with husband, or relative of husband of a woman, subjecting her to cruelty. The said provision along with the Explanation reads as follows: “498-A.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. Explanation.—For the purposes 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.” Clause (a) of the Explanation to the aforesaid provision defines “cruelty” to mean “any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide”. Clause (b) of the Explanation pertains to unlawful demand. Clause (a) can take in its ambit mental cruelty.

19. It has come out in evidence that there was ill treatment by the mother-in-law and the husband. The bride was in her early twenties. She was turned out of the matrimonial home on certain occasions. This aspect has been established beyond doubt. There can be no dispute that in a family life, there can be differences, quarrels, misgivings and apprehensions but it is the degree which raises it to the level of mental cruelty. A daughter-in-law is to be treated as a member of the family with warmth and affection and not as a stranger with despicable and ignoble indifference. She should not be treated as a housemaid. No impression should be given that she can be thrown out of her matrimonial home at any time. In the case at hand, considering the evidence of the prosecution witnesses, we are disposed to think that it is a case where the bride was totally insensitively treated and harassed. It is not that she has accidentally consumed the poison. She had deliberately put an end to her life. The defence had tried to prove that she was suffering from depression and because of such depression, she extinguished the candle of her own life. The testimony of the doctors cited by the defence has not been accepted by the learned trial Judge as well as by the High Court. They have not been able to bring in adequate material on record that she was suffering from such depression as would force her to commit suicide. On a perusal of the evidence of the said witnesses, we find that the finding recorded on that score is absolutely impeccable. In view of the same, the evidence brought on record that she was treated with cruelty and harassed deserves to be given credence to and, accordingly, we do so.

20. There is no dispute that no charge was framed under Section 306 IPC. Though the charge has not been framed under Section 306 yet on a question that has been put under Section 313 CrPC, it is clear as crystal that they were aware that they are facing a charge under Section 304-B IPC which related not to administration of poison but to consumption of poison by the deceased because of the demand of dowry and harassment. It is major evidence in comparison to Section 306 IPC which deals with abetment to suicide by a bride in the context of Explanation clause (a) of Section 498-A IPC. The test is whether there has been failure of justice or prejudice has been caused to the accused.

21. In Gurbachan Singh v. State of Punjab [AIR 1957 SC 623: 1957 Cri LJ 1009], this Court examined the question of prejudice and held as under: (AIR p. 626, para 7) “7. … in judging a question of prejudice, as of guilt, courts must act with a broad vision and look to the substance and not to technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself.”

22. In Shamnsaheb M. Multtani v. State of Karnataka [(2001) 2 SCC 577: 2001 SCC (Cri) 358], a three-Judge Bench, while dealing with the concept of “failure of justice”, has opined thus: (SCC pp. 585-86, paras 23-24)

23. In Narwinder Singh v. State of Punjab [(2011) 2 SCC 47: (2011) 1 SCC (Cri) 601], while accepting the finding of the High Court that the prosecution has not been able to establish the charge under Section 304-B IPC and had, therefore converted the punishment to one under Section 306 IPC, this Court observed that cruelty or harassment sans demand of dowry which drives the wife to commit suicide attracts the offence of abetment of suicide under Section 306 IPC. The Court further observed that mere omission or defect in framing charge would not disable the court from convicting the accused for the offence which has been found to be proved on the basis of the evidence on record. In such circumstances, the matter would fall within the purview of Sections 221(1) and (2) CrPC.

24. In K. Prema S. Rao v. Yadla Srinivasa Rao [(2003) 1 SCC 217: 2003 SCC (Cri) 271], the Court, analysing the evidence, ruled thus: (SCC p. 227, para 25)

25. In the case at hand, the basic ingredients of the offence under Section 306 IPC have been established by the prosecution inasmuch as the death has occurred within seven years in an abnormal circumstance and the deceased was meted out with mental cruelty. Thus, we convert the conviction from one under Section 304-B IPC to that under Section 306 IPC. As the accused has spent almost five years in custody, we limit the period of sentence to the period already undergone.

19. Supreme Court while dealing with the aforesaid issue in the decision reported as (2014) 12 SCC 595 Mangat Ram v. State of Haryana also held:

28. We have already indicated that the trial court has found that no offence under Section 304-B IPC has been made out against the accused, but it convicted the accused under Section 306 IPC, even though no charge had been framed on that section against the accused. The scope and ambit of Section 306 IPC has not been properly appreciated by the courts below. Section 306 IPC reads as under: “306.Abetment of suicide.—If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” Abetment of suicide is confined to the case of persons who aid or abet the commission of the suicide. In the matter of an offence under Section 306 IPC, abetment must attract the definition thereof in Section 107 IPC. Abetment is constituted by instigating a person to commit an offence or engaging in a conspiracy to commit, aid or intentional aiding a person to commit it. It would be evident from a plain reading of Section 306 read with Section 107 IPC that, in order to make out the offence of abetment or suicide, necessary proof required is that the culprit is either instigating the victim to commit suicide or has engaged himself in a conspiracy with others for the commission of suicide, or has intentionally aided by an act or illegal omission in the commission of suicide.

29. In the instant case, of course, the wife died few months after the marriage and the presumption under Section 113-A of the Evidence Act could be raised. Section 113-A of the Evidence Act reads as follows: “113-A.Presumption as to abetment of suicide by a married woman.—When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.”

30. We are of the view that the mere fact that if a married woman commits suicide within a period of seven years of her marriage, the presumption under Section 113-A of the Evidence Act would not automatically apply. The legislative mandate is that where a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband has subjected her to cruelty, the presumption as defined under Section 498-A IPC, may attract, having regard to all other circumstances of the case, that such suicide has been abetted by her husband or by such relative of her husband. The term “the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband” would indicate that the presumption is discretionary. So far as the present case is concerned, we have already indicated that the prosecution has not succeeded in showing that there was a dowry demand, nor would the reasoning adopted by the courts below would be sufficient enough to draw a presumption so as to fall under Section 113-A of the Evidence Act.

32. We are of the view that the circumstances of the case pointed out by the prosecution are totally insufficient to hold that the accused had abetted his wife to commit suicide and the circumstances enumerated under Section 113-A of the Evidence Act have also not been satisfied.

33. In Pinakin Mahipatray Rawal v. State of Gujarat [(2013) 10 SCC 48: (2013) 4 SCC (Civ) 616: (2013) 3 SCC (Cri) 801], this Court has examined the scope of Section 113-A of the Evidence Act, wherein this Court has reiterated the legal position that the legislative mandate of Section 113-A of the Evidence Act is that if a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband had subjected her to cruelty, as per the presumption defined in Section 498-A IPC, the court may presume, having regard to all other circumstances of the case, that such suicide had been abetted by the husband or such person. The court held that, though a presumption could be drawn, the burden of proof of showing that such an offence has been committed by the accused under Section 498-A IPC is on the prosecution. The court held that the burden is on the prosecution to establish the fact that the deceased committed suicide and the accused abetted the suicide. In the instant case, there is no evidence to show whether it was an accidental death or whether the deceased had committed suicide.

20. As regards the contention of learned APP for State that extra marital relations would amount to cruelty Supreme Court in the decision reported as AIR 2016 SC 5430 K.V Prakash Babu v. State of Karnataka while dealing with the issue whether involvement of husband in an extra-marital affair invites his conviction for offence punishable under Section 306 IPC for abetment to commit suicide by the wife, observed as under:

15. Slightly recently in Ghusabhai Raisangbhai Chorasiya v. State of Gujarat, the Court perusing the material on record opined that even if the illicit relationship is proven, unless some other acceptable evidence is brought on record to establish such high degree of mental cruelty the explanation (a) to Section 498-A of the IPC which includes cruelty to drive the woman to commit suicide, would not be attracted. The relevant passage from the said authority is reproduced below:— “True it is, there is some evidence about the illicit relationship and even if the same is proven, we are of the considered opinion that cruelty, as envisaged under the first limb of Section 498A Indian Penal Code would not get attracted. It would be difficult to hold that the mental cruelty was of such a degree that it would drive the wife to commit suicide. Mere extramarital relationship, even if proved, would be illegal and immoral, as has been said in Pinakin Mahipatray Rawal (supra), but it would take a different character if the prosecution brings some evidence on record to show that the accused had conducted in such a manner to drive the wife to commit suicide. In the instant case, the accused may have been involved in an illicit relationship with the appellant no. 4, but in the absence of some other acceptable evidence on record that can establish such high degree of mental cruelty, the Explanation to Section498-A which includes cruelty to drive a woman to commit suicide, would not be attracted.”

16. The concept of mental cruelty depends upon the milieu and the strata from which the persons come from and definitely has an individualistic perception regard being had to one's endurance and sensitivity. It is difficult to generalize but certainly it can be appreciated in a set of established facts. Extra-marital relationship, per se, or as such would not come within the ambit of Section 498-A Indian Penal Code. It would be an illegal or immoral act, but other ingredients are to be brought home so that it would constitute a criminal offence. There is no denial of the fact that the cruelty need not be physical but a mental torture or abnormal behaviour that amounts to cruelty or harassment in a given case. It will depend upon the facts of the said case. To explicate, solely because the husband is involved in an extra-marital relationship and there is some suspicion in the mind of wife, that cannot be regarded as mental cruelty which would attract mental cruelty for satisfying the ingredients of Section 306 Indian Penal Code.

17. We are absolutely conscious about the presumption engrafted under Section 113-A of the Evidence Act. The said provision enables the Court to draw presumption in a particular fact situation when necessary ingredients in order to attract the provision are established. In this regard, we may reproduce a passage from Pinakin Mahipatray Rawal (supra):— Criminal law amendment and the rule of procedure was necessitated so as to meet the social challenge of saving the married woman from being ill-treated or forcing to commit suicide by the husband or his relatives, demanding dowry. Legislative mandate of the section is that when a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband had subjected her to cruelty as per the terms defined in Section 498-A Indian Penal Code, the court may presume having regard to all other circumstances of the case that such suicide has been abetted by the husband or such person. Though a presumption could be drawn, the burden of proof of showing that such an offence has been committed by the accused under Section 498-A Indian Penal Codeis on the prosecution.” We have reproduced the aforesaid passage only to highlight that the Court can take aid of the principles of the statutory presumption.

18. In the instant case, as the evidence would limpidly show, the wife developed a sense of suspicion that her husband was going to the house of Ashwathamma in Village Chelur where he got involved with Deepa, the daughter of Ashwathamma. It has come on record through various witnesses that the people talked in the locality with regard to the involvement of the appellant with Deepa. It needs to be noted that Deepa, being not able to digest the humiliation, committed suicide. The mother and the brother of Deepa paved the same path. In such a situation, it is extremely difficult to hold that the prosecution has established the charge under Section 498A and the fact that the said cruelty induced the wife to commit suicide. It is manifest that the wife was guided by the rumour that aggravated her suspicion which has no boundary. The seed of suspicion planted in mind brought the eventual tragedy. But such an event will not constitute the offence or establish the guilt of the accused-appellant under Section 306 of the Indian Penal Code.

19. Having said that we intend to make it clear that if the husband gets involved in an extra-marital affair that may not in all circumstances invite conviction under Section 306 of the Indian Penal Code but definitely that can be a ground for divorce or other reliefs in a matrimonial dispute under other enactments. And we so clarify.’

22. On the facts of the present case, it is apparent that the deceased suspected her husband to be in an extramarital relation which fact she stated to her family members also, however there is no evidence that in order to seek divorce from the deceased there was cruelty to the extent that she was driven to commit suicide. Thus, this Court finds that the prosecution has not made out any case for raising a presumption that on account of mental cruelty by being involved in an extramarital relationship Wasim abated the commission of suicide by the deceased.

23. This brings the Court to another facet of facts of the case i.e. whether the acts of Wasim had a live and proximate link to the death of the deceased as admittedly prior to the incident the appellant was not in Delhi. Nothing has been shown that before the death of the deceased she was subjected to such a mental and physical cruelty by the appellant which abated her committing suicide. There is no proximate and live link between the cruelty or demand of dowry and the suicide committed as already held by the learned Trial Court.

24. However in view of the fact that though not soon before death but soon after the marriage there was demand of dowry and money was taken, this Court deems it fit to uphold the conviction under Section 498A IPC. Consequently the conviction and order on sentence of the appellant for offence punishable under Section 306 IPC is set aside however, for offence punishable under Section 498A IPC is maintained.

25. Appeal is disposed of.

26. Copy of this order be sent to Superintendent Central Jail Tihar for updation of the Jail record.

27. TCR be returned.

JUDGE MAY 24, 2018 ‘vn’/mamta