Delhi High Court
Dinesh Mehta vs The State (Nct Of Delhi) on 6 June, 2007
Equivalent citations: 2007 CriLJ 3834, II (2007) DMC 334
Author: S R Bhat
Bench: S R Bhat
JUDGMENT S. Ravindra Bhat, J.

1. This revision is directed against the order on charge dated 02-08-03. The learned Additional Sessions Judge (hereafter “the trial court’`) charged the Petitioner, for commission of offences punishable under Section 498-A/ 304-B IPC. The other co-accused too was charged.

2. The prosecution alleged that on 24-08-2000, Manju, wife of the petitioner (hereafter “the deceased’`) was admitted to the Safdarjung Hospital with 90% burns. One Krishan Gahlot of Newada from whom her husband had taken Rs 10,000/- loan, first forced her to have friendship with him and on 18-08-2000, he visited their home, tried to persuade her to have sexual relationship; when she refused, he had forcible sexual intercourse with her. It was alleged that on 24-08-2000, when the deceased disclosed this to the petitioner, he scolded her as to why she hid it from him. Subsequently, she served food to him around 5.15 p.m. and then went to the kitchen, poured kerosene and set herself ablaze. In her statement to the IO, she stated that she wanted to commit suicide. She stated that she had written a letter about this incident, which was kept behind a photo on the alter for the gods at home.

3. On the basis of her statement, an FIR was registered. Manju succumbed to her injuries on 25-08-2000. During proceedings before SDM on 30-08-2000, the mother of the deceased Smt. Usha Kiran, brother Parvesh, sister Smt. Anju Sharma and brother-in-law Sh. R.P. Sharma, made statements in which they alleged that quarrel had erupted between the deceased and the petitioner, just eight days after their marriage on 02-12-1995. They further stated that the petitioner was a drunkard; even on the wedding night he was drunk and had given beatings to the deceased. He was unemployed and ran his household by borrowing money from people. He always used to beat Manju. They further alleged that many times, the petitioner had borrowed money from them and he had threatened Manju that he would kill her brother and defame her mother. The mother of the deceased expressed suspicion that the petitioner must have burnt her daughter since on earlier occasions he had threatened to burn her. She said that immediately after the incident took place, she was not allowed to go inside and meet her daughter, but when she went and met her, her daughter said that she was forced to write the suicide note since her husband was not able to pay the debt to Krishan Gahlot. She further stated that her daughter had told her that she had written the letter under pressure and out of compulsion.

4. The prosecution had further argued that the husband of the deceased was a drunkard and he used to beat her and demand for dowry. She made complaints in this regard dt. 31-07-96 at the R.K. Puram Police Station. On 05-08-1996, the deceased complained to the Crime Against Women Cell about the alleged harassment and demand for dowry by the petitioner husband and her in-laws. This was settled amicably on 21-08- 96, when the petitioner promised that he would not harass Manju, the deceased and would take care of her in future. On the basis of these, the trial court made the impugned order.

5. Mr. K.K. Manan argued that the deceased, in her dying declaration had stated that on 18-08-2000, Krishan Gahlot had raped her. On 24-08-2000 the deceased narrated the incident to the petitioner. Out of shame for herself and her family, set herself on fire. In the suicide note and the statement recorded by the police, she blamed Krishan Gahlot. The counsel for the petitioner further argued that the letters written by the deceased Manju, recovered from the temple at home, refer to a different story in which the Petitioner played no role.

6. Learned Counsel further argued that in the statement recorded by the police under Section 161 Cr.P.C., on 28-08-2000, the mother, brother and the sister of the deceased made no allegations against the petitioner and stated that there were no strained relations between the deceased and the petitioner. The case under Sections 498-A and 304-B was invoked against the petitioner on the basis of fresh statement by mother, brother and sister of the deceased on 26-03-2001, when they reportedly changed their earlier stand. The learned Counsel for the petitioner argued that allegations levelled against the petitioner on 26-03-2001, were out of personal grudge since custody of minor children of the petitioner and deceased was not handed over to them. He further argued that the allegations against the petitioner in relation to the previous incidents of harassment related to the year 1996. Even if accepted, those incidents stood compounded, as the parties settled the disputes by letter dt. 05-09-1996, which is on record. Learned Counsel for the petitioner relied on a complaint dated 19-09-2000 made by the petitioner to the Commissioner of Police in this regard.

7. The learned Counsel stated that the order on charge is not sustainable, since there is not even an iota of evidence to show that the petitioner had subjected the deceased wife to cruelty or harassment ‘soon before her death’ so as to attract the provisions of Section 498-A and 304-B. It was urged that to attract the provisions of Section 304-B,IPC, one of the main ingredients of the offence which is required to be satisfied is that ‘soon before her death’ the deceased was subjected to cruelty and harassment ‘in connection with the demand for dowry’. It was submitted that on examination of the statement of the deceased and letter on record, it cannot be held ‘demand for dowry’ was made ‘soon before her death’. The scolding given to the deceased by the husband ‘soon before her death’ was in regard to Krishan Gahlot. It did not constitute cruelty or harassment.

8. Learned Counsel for the respondent state submitted that the order on charge was valid and proper. It was submitted that the overall circumstances urrounding the death of Manju, raised a strong suspicion that it was the result of cruelty meted out by the petitioner. Whether there was any substance in the allegation of rape by Krishna Gehlot, who had been separately charged and whether those led to humiliation or not were different issues. The materials on record, in this case showed that the petitioner had a history of treating the deceased cruelly; he used to harass her and the family members. Earlier, there was a police complaint, which was “settled’`. Yet, his harassment and cruelty continued, unabated. Therefore, the court acted within jurisdiction and correctly, in framing charges under Sections 498-A and 304-B, IPC.

9. The question to be decided is if the death of Manju having occurred in the circumstances described above can be considered as a “dowry death’` within the meaning of Section 304B IPC. Section 304B reads as under:

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.’ The Supreme Court in T. Aruntperunjothi v. State through SHO., Pondicherry , held that the essential ingredients of the offence are:

(1) The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances;

(2) such death must have occurred within seven years of marriage;

(3) soon before her death, such woman must have been subjected to cruelty or harassment by her husband or any relative of her husband;

(4) such harassment or cruelty must be connected with the demand for dowry;

(5) such cruelty must be shown to have been meted out to the woman soon before her death.

10. The trial Courts records were requisitioned. Both parties, adverted to it. The facts of the present case may show that apparently all the ingredients were made out. Manju died as a result of bodily injuries and in circumstances which were other than normal. Her death occurred within seven years of marriage. There are allegations that before her death she was subjected to cruelty and harassment by the petitioner, her husband. The allegations are that such alleged cruelty or harassment was in connection with the alleged demand for money. The earlier statement of the deceased’s mother no doubt does not implicate the daughter. But in her later statement, she explained the circumstances, whereby according to her, she was not allowed to meet the daughter at the relevant time, when she made the statement. This, second statement mentioned that her daughter told her that she was made to falsely implicate Krishan Gehlot, in the letter, as the petitioner was unable to pay the debt. A reading of the judgment in Prema S. Rao v. Yadla Srinivasa Rao would show that there should be an element of proximity between the demand for dowry, and the death, for the case to be covered by Section 304-B. Such proximity or “live link’` between the dowry demand, which is said to have taken place in 1995-96 and the death, according to the petitioner, did not exist. Repeated borrowing of money from the deceased’s relatives, and others, living off such borrowings, may not by itself constitute “demands for dowry’`. They may fall in the larger rubric of “cruelty’` if accompanied by acts of harassment. The causation for death might be cruelty, but the question is whether facts in this case point to any demand “soon before’` the death of Manju.

11. The above findings and doubts about applicability of Section 304-B do not conclude the case. In this case, there are two diary entries, both in Hindi, dated 19-8-2000, and dated 24-8-2000. They are part of the trial court record. The first, dated 19-8-2000, talks about a physical relationship with Krishan Gehlot. This entry contains certain words which have been scored off; those are to the effect that the husband came to know about this (incident with Krishan Gehlot) and was angry with the deceased. The entry dated 24-08-2000 reads, after translation thus:

Everyone has taken undue advantage of my circumstances and whatever anyone wanted to say against me, he said it. My husband heaped abuses on me and gave me a beating, after Krishan left The diary entry of 24-08-2000, refers to the day of incident. It reflects that apparently before committing suicide on the fateful day, the deceased was abused and beaten by her husband. This was the proximate cause leading to the suicide of the deceased. This is substantiated by the statement of the deceased to the I.O. wherein she states that her husband scolded her as to why she hid the wrong act committed by Krishan Gahlot.

12. Section 113-A of the Evidence Act reads as follows:

113A. Presumption as to abetment of suicide by a married women’ 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.

Explanation – For the purposes of this section, “cruelty’` shall have the same meaning as in Section 498A of the Indian Panel Code (45 of 1860).

13. Section 498-A, IPC reads as follows:

Section 498-A Husband or relative of husband of a woman subjecting her cruelty. ‘Whoever, being the husband or 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 purpose of this section, ‘cruelty’ means-

(a) any willful 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 coerce her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of any person related to her to meet such demand.’`

14. The offence of Abetment of suicide under Section 306, IPC reads as follows:

Section 306. Abetment of suicide If any person commits suicide, whoever abets the commission of such suicide, shall be punishable with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.

15. In State of Punjab v. Iqbal Singh and Ors. , the Supreme Court held as follows:

… where the husband or his relative by his willful conduct creates a situation which he knows will drive the woman to commit suicide and she actually does so, the case would squarely fall within the ambit of Section 306, IPC. In such a case the conduct of the person would tantamount to inciting or provoking or virtually pushing the woman into a desperate situation of no return which would compel her to put an end to her miseries by committing suicide.

16. A somewhat similar situation had arisen before this Court, in Rajesh Mehta v. State , where the issue was whether the charges were correctly framed under Section 498-A and 304-B, and if the charge under Section 306, though not framed by the trial court, was made out. The court held as follows:

14. A bare perusal of Section 221 of the Code shows that wherever it is doubtful as to which of the several offences, the facts, if 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. The basic principle is that the doubt should be as to the nature of the offence and not about the facts. Therefore, if on the basis of the facts alleged by the prosecution, it is doubtful as to which of the offences, the alleged facts will constitute, the framing of alternative or additional charge is permissible. Section 221 of the Code cannot be invoked where the facts themselves are in doubt nor it can be invoked for framing charges for those offences, the ingredients of which are altogether different. In Jatinder Kumar and Ors. v. State of Delhi 1992 Cr.LJ 1482, and Sangaraboina Sreenu v. State of Andhra Pradesh II , it was held that since the ingredients of Sections 302 and 306 of Indian Penal Code were distinct and these two offences belonged to two different categories, alternative charges under both these sections could not be framed. However, the ingredients of Sections 304B and 306, IPC are not so different and distinct so as to say that the charges under both these sections cannot be framed against an accused. Under Section 304B, IPC, the death of a woman caused by burns, injury or otherwise than in normal circumstances within seven years of her marriage becomes punishable if it is shown that soon before her death, she was being subjected to cruelty or harassment for or in connection with any demand of dowry. On the other hand, if a woman commits suicide upon abetment of an accused, the offence under Section 306, IPC may be made out. The instigation for the purposes of abetment, as defined under Section 107, IPC, would include the cases of inciting, goading, provoking or pushing the woman into a situation, which compels her to put an end to her life by committing suicide. In case of the death of a woman, the difference, therefore, between Sections 304B and 306, IPC primarily remains in regard to the demand of dowry, which is an essential ingredient of Section 304B, IPC and is not so for the purposes of an offence under Section 306, IPC. Section 304B, IPC can be taken as an aggravated form of Section 306, IPC in regard to the death of a woman, who is harassed on account of dowry demands and dies within seven years of her marriage. If in a trial under Section 304B, IPC, dowry related harassment or cruelty is not proved or it is shown that the woman had been married for a period of more than seven years, the offence would not fall under Section 304B, IPC, but may fall within the ambit of Section 306, IPC, which deals with cases in which an accused by his conduct incites, provokes or virtually pushes the woman into a desperate situation where she is compelled to put an end to her life by committing suicide. It, therefore, can be safely said that the offences under Sections 304B and 306, IPC are neither quite distinct nor they belong to two different categories. However, offences under Sections 302 and 306 are quite distinct and belong to two different categories.

15. In Sunil Kumar Paul v. State of West Bengal AIR 1965 SC 706, their Lordships of the Supreme Court while considering Sections 236 and 237 of the old Code, which after amendment got reflected in Section 221 of the Code, categorically observed as under:

The framing of a charge under Section 236, is, in the nature of things, earlier than the stage when it can be said what facts have been proved, a stage which is reached when the Court delivers its judgment. The power of the Court to frame various charges contemplated by Section 236, Cr.P.C. therefore, arises when it cannot be said with any definiteness, either by the Prosecutor or by the Court, that such and such facts would be proved. The Court had at the time of framing the charges, therefore, to consider what different offences could be made out on the basis of the allegations made by the prosecution in the complaint or in the charge submitted by the Investigating Agency or by the allegations made by the various prosecution witnesses examined prior to the framing of the charge. All such possible offences could be charged in view of the provisions of Section 236, Cr.P.C. as it can be reasonably said that it was doubtful as to which of the offences the facts which could be ultimately proved would constitute.

16. The ratio of the judgment, therefore, is that where the facts alleged by the prosecution create a doubt in the mind of the Court as to which of the various offences is made out, the charges under all the sections which appear to be attracted, may be framed by virtue of Section 221 of the Code so as to enable the Court to pronounce a final judgment at the end of trial without getting handicapped on account of absence of a charge under a particular provision. In the present case on the basis of the charge-sheet filed against the petitioner, statements of the witnesses recorded under Section 161 of the Code and other material on record, it prima facie appears that the petitioner might have abetted the suicide of his wife and as such, an alternative charge under Section 306, IPC also ought to have been framed against him.

17. It is true that the State has not challenged the impugned order nor has filed a challan under Section 306, IPC, but the law does not restrict the powers of the Court to frame charges under appropriate provisions on the basis of the allegations made against an accused. The Revisional Court while exercising its powers under Section 397 of the Code is under a duty to satisfy itself with regard to the correctness, legality and propriety of any finding or order passed by a subordinate Court and issue appropriate directions. Therefore, this Court being satisfied that a charge under Section 306, IPC also ought to have been framed by virtue of Section 221 of the Code is well within its powers to order accordingly.

18. In view of the foregoing reasons, this Court is of the considered view that the prayer of the petitioner to set aside the impugned order and discharge him of the offences under Sections 304B and 498A, IPC cannot be allowed and rather an alternative charge under Section 306, IPC also is required to be framed against him….

17. Here, the written notes of the deceased, coupled with statements of her mother, particularly the statement recorded on 30-8-2000 do point the finger of suspicion at the petitioner; a strong one at that. The petitioner’s previous acts of cruelty, his repeated and persistent demands for money, his alleged threats against family members of the deceased, the previous complaint in 1996, and facial application of the presumption under Section 113-A, (inasmuch as the facts do show cruelty within the meaning of Section 498-A, IPC) warrant an approach similar to what was adopted by this Court, in Rakesh Mehta’s case (supra). Like in that case, the state has not filed a revision, seeking alternative charge under Section 306. Yet, that cannot be a deterrent to this Court, from doing so.

18. In view of the foregoing discussion, the petition has to fail, with regard to the impugned order charging the petitioner of the offences under Sections 304B and 498A, IPC. An alternative charge under Section 306, IPC also is required to be framed against him. The Trial Court shall proceed to frame such alternative charge against the petitioner under Section 306, IPC and proceed further in accordance with law. The discussion and observations made in the course of this judgment shall not be construed as a reflection on the merits of the case, and all rights and contentions of the petitioner, in the defense, are hereby kept open.

19. The petition is disposed off in the above terms. The Trial Court records shall be returned forthwith

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