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CASE NO.:

Appeal (crl.) 1457 of 1995

PETITIONER:

K. PREMA S. RAO AND ANR.

RESPONDENT:

YADLA SRINIVASA RAO AND ORS.

DATE OF JUDGMENT: 25/10/2002

BENCH:

M.B. SHAH & K.G. BALAKRISHNAN & D.M. DHARMADHIKARI

JUDGMENT:

JUDGMENT

2002 Supp(3) SCR 339

The Judgment of the Court was delivered by

DHARMADHIKARI, J. "Frailty thy name is woman", that is how in one his plays

Shakespeare described one of the female characters in his play. This

description is more and more in evidence particularly in rural Indian

society where married women, who are unable to muster courage to fight

against cruelty and harassment meted out to them by their spouses and

family members, find no escape other than ending their own life.

The deceased Krishna Kumari second daughter of PW1 was married to Yadla

Srinivasa Rao (hereinafter referred to as accused No.1), on 26.6.1998.

Accused No. l was employed as Branch Post Master in the village where the

spouses lived jointly with the parents of accused No.1.

At the time of marriage father of the deceased, who was a teacher, gave a

cash dowry of Rupees fifteen thousand and jewels worth fifteen thousand

besides gift of five acres of land and a house site in the course of

marriage ritual described as "Pasupukumkuma". It is explained that this

gift of land was in the nature of 'Stridhana' given to the bride by the

father for her maintenance.

After three or four months of the marriage accused No.1, husband of the

deceased started demanding in from the deceased execution of a deed in his

favour of the land and house site gifted to her. Refusal on the part of the

deceased to meet the demand was the cause of her continuous harassment.

Taking advantage of his position as the Post Master in the village, accused

No.1 never delivered mail sent to the deceased by her father and her sister

Nagamani. Her younger sister after passing tenth class examination had to

appear for Polytechnic Entrance Test. As a part of harassment of the

deceased, accused No.1 did not deliver the Entrance Card received from

Kakatiya University addressed to the younger sister of the deceased which

resulted in the former losing the admission to the test.

The deceased somehow was able to lay her hands on the letters addressed to

her and which had been concealed by accused No. 1. On finding those

letters, she handed over the same to her father. This incident led to

extreme point of harassment. Accused No. l and his parents, accused Nos.

2-3, drove the deceased out from their house with stern warning to her to

restore those letters. This incident of cruelty was so grave and unbearable

that she committed suicide by consuming a poisonous insecticide Endo-

Sulphan on 22.10.1989. PW4, who had witnessed the incident of the deceased

having been driven out of the house the previous day, also saw accused No.1

taking deceased to the hospital at Madhira. PW4 informed about it to father

(PW1) of the deceased who rushed to the house of the accused to find

Krishna Kumari, dead. The father then lodged a First Information Report,

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Ex. P1 within eight hours on the same day.

All the three accused were charged in Session Case No. 157 of 1999 by the

Court of Assistant Sessions judge, Nuzwid for offence of dowry death under

Section 304B, IPC and in the alternative under Section 498A, IPC for

cruelty and harassment of such magnitude as to drive the deceased to commit

suicide. The prosecution examined the parents of the deceased of PW 1-2.

PW3-4 were examined who had seen the deceased being driven out of the house

and taken back only on their persuasion.

The trial court by judgment dated 19.8.1991 accepted the evidence led by

the prosecution of alleged cruel treatment and harassment of the deceased

which drove her to commit suicide. It, however, held that on the evidence

only offence under Section 498A, IPC is made out. It acquitted them of the

offence under Section 304B, IPC. The three accused on their conviction for

offence under Section 498A were sentenced to rigorous imprisonment for two

years and a fine of Rs. 500 each. In default of payment of fine, they were

sentenced to two months simple imprisonment each.

The appellants i.e. parents of the deceased filed Criminal Revision No.

564/91 in the High Court of Andhra Pradesh against the acquittal of the

accused under Section 304B, IPC. The accused preferred Criminal Appeal No.

1291/99 before the High Court of Andhra Pradesh assailing their conviction

and sentences.

The learned Single Judge of the High Court of Andhra Pradesh decided the

revision preferred by the parents of the deceased and the appeal preferred

by the accused by a common Judgment dated 24.8.1994 which is the subject

matter of these two separate criminal appeals preferred by the parents of

the deceased and the State of Andhra Pradesh.

The learned Single Judge of the High Court of Andhra Pradesh dismissed the

Criminal Revision filed by the parents of the deceased and confirmed the

verdict of the trial court that the accused are liable to conviction and

sentences only under Section 498, IPC and not under Section 304B. IPC.

By the same common judgment the High Court allowed the appeal preferred by

accused Nos. 2-3 (Parents of accused No.1) and acquitted them of the

alleged offences.

Against the common judgment of the High Court, State of Andhra Pradesh has

preferred Criminal Appeal Nos. 1458-59 of 1995 challenging the acquittal of

accused Nos. 2-3 and the parents of the deceased have preferred connected

Criminal Appeal No. 1457 of 1995 seeking conviction of all the accused

under Section 304B of the IPC.

The High Court in its common judgment passed in Criminal Appeal and

Criminal Revision before it after appreciating the evidence led against

accused Nos. 2-3, has found that the allegation against them of their

participation with accused No.1 in driving out the deceased from their

house was for the first time made by PW-1 father of the deceased only in

his deposition in the Court. At no earlier point of time either in the

first information report Ex.Pl or in the statements made under Section 161

of Cr.P.C. to the police, such allegation was made against accused No.2 and

accused No.3. Apart from the oral testimony of PW1 (the father of the

deceased) there is no other evidence on record to prove that the two

accused Nos. 2-3 joined accused No.1 in harassing or cruelly treating the

deceased. On appreciation of the evidence the conclusion drawn by the High

Court in favour of accused No.2 and accused No.3 is reasonable and does not

justify interference by us in their acquittal. Consequently, we uphold the

acquittal of accused Nos. 2-3 and dismiss the two appeals preferred by the

State of Andhra Pradesh which are filed to seek their conviction.

We now take up for consideration Criminal Appeal No. 1457 of 1995,

preferred by the parents of the deceased seeking conviction of accused No.1

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for offence under section 304B of the Indian Penal Code. In its common

Judgment after appreciating the evidence on record, the conclusion reached

by the High Court that the accused No. 1 cannot be convicted under section

304B, IPC appears to be legally sound. There is no evidence against accused

No. 1 that at the time of marriage there was any demand or settlement for

giving dowry in cash or by way of transfer of property. The father of the

deceased PW1 has not stated that cash, ornaments and the land were given at

the time of marriage pursuant to any demand of dowry by the parents of the

husband. He merely states that according to the custom of the community

declaration was made of gift of five acres of land to the deceased as her

"Stridhana" called in the community as pasunukumkuma. As promised and

declared in the ritual at the time of marriage the land was transferred in

the name of the wife. The couple lived happily thereafter. It is only 2-3

months thereafter that the husband started harassing the wife to force her

to transfer the land to him. This harassment of cruel treatment to

pressurize her to transfer the land cannot be said to be 'in connection

with any alleged dowry demand.' For the purpose of Section 304B, IPC the

legislature has borrowed the definition of 'dowry' from Section 2 of the

Dowry Prohibition Act of 1961. The relevant provisions of the Penal Code,

Dowry Prohibition Act and Evidence Act are quoted hereunder:

304-B. Dowry death-(l) 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.

(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."

Section 2 of the Dowry Prohibition Act, 1961 defines "dowry" 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 parents of either party to a marriage or by any other person,

to either party to the marriage or to an other person.

At or before or any time after the marriage in connection with the marriage

of said parties, but does not include Dower or Mahr in the case of persons

to whom the Muslim Personal Law (Shariat) applies.

Explanation I-For the removal of doubts, it is hereby declared that any

presents made at the time of a marriage to either party to the marriage in

the form of cash, ornaments, clothes or other articles, shall not be deemed

to be dowry within the meaning of this section, unless they are made as

consideration for the marriage of the said parties.

Explanation II- The expression 'valuable security' has the same meaning as

in section 30 of the Indian Penal Code.

Section 113B of Evidence Act raises a presumption against the accused and

reads: 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 had been subjected by such person to cruelty or

harassment for, or in connection with, any demand for dowry, the court

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shall presume that such a 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."

The legal position firmly established is that 'suicidal death' of a married

woman within seven years of her marriage is covered by the expression

"death of a woman is caused..............or occurs otherwise than under

normal

circumstances" as used in Section 304B of the Indian Penal Code. See Satvir

Singh v. State of Punjab, [2000] 8 SCC 663,

The evidence which has been found acceptable by the courts below against

accused No. 1 is that the cruel treatment and harassment of the deceased by

him led her to commit suicide which was a death "otherwise than under

normal circumstances". To attract the provisions of Section 304B IPC, one

of the main ingredients of the offence which is required to be established

is that "soon before her death" she was subjected to cruelty and harassment

'in connection with the demand for dowry'. There is no evidence on record

to show that the land was demanded as dowry. It was given by the father to

the deceased in marriage ritual as pasupukumuma. The harassment or cruelty

meted out to the deceased by the husband after the marriage to force her to

transfer the land in his name was 'not in connection with any demand for

dowry.' One of the main ingredients of the offence of "demand of dowry"

being absent in this case, the High Court cannot be said to have committed

any error in acquitting accused No. 1 for offence under Section 304B, IPC.

We however, find that the same evidence on record which was held reliable

to convict accused No. 1 for offence of 'cruelty' under section 498A, IPC,

clearly makes out a case for his conviction for offence of abeting suicide

under Section 306, IPC read with section 113 A of the Evidence Act. Section

498A makes cruelty by husband to wife as a punishable offence. The word

"cruelty" is defined in the Explanation appended to the said Section.

Section 498A with Explanation thereunder reads thus:

Section 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.

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."

[underlining for emphasis]

Clause (a) of the Explanation under Section 498A, IPC defines cruelty to

mean a 'wilful conduct of the husband of such nature as is likely to drive

the woman to commit suicide.' In the instant case, the accused pressurised

and harassed the deceased to part with the land received by her from her

father as "Stridhana." As a method adopted for harassment the Postal Mail

of her relatives sent to her was suppressed by the husband who was in a

position to do so being a Branch Post Master in the village. When the

letters were discovered by the wife and she handed them over to her father

(PW1) she was driven out of the house. This cruel conduct of the husband

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led the wife to commit suicide. The trial court and the High Court were,

therefore, perfectly justified on this evidence to hold accused No. 1

guilty of the offence of 'cruelty' under Section 498A. As a result of such

cruel treatment the wife was driven to commit suicide.

Thus offence of abetment of committing suicide punishable under Section

306, IPC is clearly made out against accused No. 1 and for that purpose

presumption under Section 113 A of the Evidence Act can be raised against

him. Section 306, IPC reads thus:

"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."

113A. 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 or her husband.

Explanation - For the purposes of this section, "cruelty; shall have the

same meaning as in section 498A of the Indian Penal Code."

[emphasis applied]

Both the Courts below have found the husband guilty of cruel treatment of

his wife and as a result the wife committed suicide within seven years of

their marriage. On such evidence the presumption which arises under Section

113A of the Evidence Act is that the husband abetted suicide. The word

"cruelty" as mentioned in the Explanation below Section 113 A of the

Evidence Act has been given the same meaning as contained in the

Explanation below Section 498A IPC. On the facts found, 'the wilful'

conduct of the husband in forcing the deceased to part with her land which

she had received in marriage as "stridhana" and for that purpose concealing

her postal mail was so cruel that she was driven to commit suicide. A case

of conviction and sentence of accused No. 1 under Section 306, IPC has thus

clearly been made out even though his acquittal for commission of the

offence of 'dowry death' punishable under Section 304B, IPC is not found

liable to be disturbed.

The learned counsel for the accused has argued that in the absence of a

charge framed against the accused under Section 306 IPC, the accused cannot

be convicted under the said Section.

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

498A and Section 304B of IPC. The statement of charge framed by the trial

courts 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-l of you

and daughter-in-law of A2 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-l and thereby committed an offence punishable under

Section 304-B of the Indian Penal Code and within the cognizance of this

Court.

OR ALTERNATIVELY

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That, prior to the 22nd day of October, 1989; at your house at Tunikipadu,

you subjected Yedla Krishna Kumari, wife of A-l 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 applied]

Mere omission or defect in framing charge 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 304B and in the alternative

Section 498A, 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 of

Section 306, IPC with 498A, IPC does not preclude the Court from convicting

the accused for the said offence when found proved. In the alternate charge

framed under Section 498A of 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 of Cr.P.C. 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.

Section 221 of Cr. P.C. needs reproduction:-

"221. Where it is doubtful what offence has been committed-(l)

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 (12), he may be

convicted of the offence which he is shown to have committed, although he

was not charged with it.

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 No. 1 of offence of abetment of suicide under Section 306 of IPC

along with or instead of Section 498A of IPC.

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 of

Cr. P.C. 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 commission to state

the offence or those particulars, shall be regarded 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.

As provided in Section 215 of Cr.P.C. commission 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

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in evidence, which justify conviction of the appellant under Section 498A

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 304B which is punishable with minimum sentence of seven years

rigorous imprisonment and maximum for life. Presumption under Section 113A

of the Evidence Act could also be raised against him on same facts

constituting offence of cruelty under Section 498A, 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 498A, IPC.

It may be mentioned that against confirmation of this conviction by the

High Court under section 498A, IPC, the accused No. 1 has not preferred any

special leave to appeal to this Court. The facts found proved for his

conviction and sentence under Section 498A, IPC, cannot now be questioned

by the accused. Our conclusion, therefore, is that same facts and evidence

on which accused No. 1 was charged under Section 498A and Section 304B, the

accused can be convicted and sentenced under Section 306 IPC. We find no

legal or procedural impediment in doing so.

The legislature has by amending the Penal Code and Evidence Act made Penal

Law more strident for dealing with and punishing offences against married

women. Such strident laws would have a deterrent effect on the offenders

only if they are so stringently implemented by the law courts to achieve

the legislative intent. On the facts found and the offence proved to have

been committed leading to suicidal death of the wife, imprisonment of two

years with fine of Rs. 500 is too light a sentence. For offence under

Section 306 IPC the sentence may extend to ten years. In this case the

husband is found to have harassad his wife to such an extent as to drive

her to commit suicide. Sentence of five years would, in our opinion, be a

proper sentence for the crime with the amount of fine increased to Rs.

20,000 to be paid as compensation to the parents of the deceased. On non-

payment of fine the accused No. 1 shall suffer further sentence of one

year.

We, thus, allow Criminal Appeal No. 1457 of 1995 preferred by the parents

of the deceased. We maintain the conviction and sentence of accused No. 1

under Section 498A, IPC. The accused No. 1 is also convicted under Section

306, IPC and sentenced to five years rigorous imprisonment with a fine of

Rs. 20,000 to be paid as compensation to the parents of the deceased. In

the event of non-payment of fine, accused No. 1 shall suffer imprisonment

for a further period of one year. The sentences imposed under Section 498A,

IPC and under Section 306, IPC shall run concurrently.

Connected Criminal Appeal Nos. 1458-59 of 1985 preferred by the State

against acquittal of accused Nos. 2 & 3 are dismissed.