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CASE NO.:

Appeal (crl.) 1319 of 1998

Appeal (crl.) 123 of 1999

PETITIONER:

SATVIR SINGH AND ORS.

Vs.

RESPONDENT:

STATE OF PUNJAB AND ANR.

DATE OF JUDGMENT: 27/09/2001

BENCH:

K.T. Thomas & S.N. Variava

JUDGMENT:

THOMAS, J.

A young mother of two kids, who is a double graduate,

ran into the rail in front of a running train to end her

life as well as her miseries once and for all. She was

driven to that action on account of the cruel treatments

suffered by her at her nuptial home. But the destiny also

was cruel to her as the locomotive which she desired to be

her destroyer, instead of snuffing her life out in a trice,

converted her into a veritable vegetable. She lost her

left hand from shoulder joint and got her spinal cord

ruptured. She turned into a paraplegic. She herself

described her present plight as a living corpse. Thus the

miseries she longed to end transformed into a monstrous

dimension clutching her as long as she is alive.

Her husband, father-in-law and mother-in-law (the

appellants before us) were convicted by the Sessions Court

under Section 116 read with Section 306 IPC, besides

Section 498A. On the first count they were sentenced to

rigorous imprisonment for two and a half years and a fine

of Rs.10,000/- each, and on the second count they were

sentenced to imprisonment for two years and a fine of

Rs.5,000/- each. When the appellants filed an appeal

before the High Court in challenge of the said conviction

and sentence the victim also made a motion before the same

High Court as she felt that condign punishment has not been

meted out to the guilty persons. Both were disposed of by

the impugned judgment delivered by a single Judge of the

High Court of Punjab and Haryana. The findings made by the

Sessions Court were concurred with by the High Court.

However, an alteration was made by substituting Section 306

IPC with Section 304B IPC to be read with Section 116 IPC.

Commensurate alteration was made in the quantum of sentence

by escalating it to RI for five years each.

It was during the wee hours of 17.6.1996 that

Tejinder Pal Kaur (PW-5) ran in front of a train. The

events which culminated in the said tragedy have been set

out by the prosecution like this:

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Tejinder Pal Kaur (PW-5) daughter of Narender Singh

(PW-6) obtained B.A. degree and B.Ed. degree before her

marriage. On 15.11.1992 she was given in marriage to

Satvir Singh (A-1), a businessman, and thenceforth she was

living in her husbands house. Devinder Singh (A-2) and

Paramjit Kaur(A-3) who are the parents of Satvir Singh(A-1)

were also living in the same house. Though dowry was given

at the time of marriage the appellants started harassing

the bride after about 4 or 5 months of the wedding for not

giving a car and a house as part of the dowry. They used

to hurl taunts on her pertaining to the subject, including

telling her that she had brought rags instead of wedding

costumes. After about a year a male child was born to her

and about one and a half years thereafter she gave birth to

another male child.

In the month of November 1995 her father Narender

Singh (PW-6) paid Rs.20,000/- to her husband Satvir Singh

presumably for appeasing him so that he would desist from

causing any harassment to Tejinder Pal Kaur. But that

appeared to be only a modicum of pelf for abating the

shower of abuses heaped up on the housewife.

The immediate cause for the tragic episode happened on

the night of 16.6.1996. When food was served to Satvir

Singh (A-1) in the night, it was noticed that one of the

items in the meals (salad) contained excessive salt.

(According to PW-5 the salt was added to the salad by her

mother-in-law). After tasting the salad Satvir Singh

became furious and he unleashed abuses on his wife and then

he was profusely supported by his mother and later they

were reinforced by his father. They went to the extent of

suggesting to her why not end your life in front of one of

the trains as many such trains are running nearby.

On 17.6.1996 Tejinder Pal Kaur (PW-5) left the house

all alone at about 4 A.M. and reached the railway line

yonder, expecting the arrival of a train from Jallandhar.

Within 15 minutes the expected train arrived and Tejinder

Pal Kaur, standing on the track, was run over by that

train. What happened thereafter need not be narrated in

detail over again except pointing out that she was

devastatingly maimed, yet survived. There is practically

no dispute that she went to the railway track on that

morning and in an attempt to end her life she allowed the

train to pass over her. As the doctors expressed the

opinion that the testimonial capacity of Tejinder Pal Kaur

(PW-5) was not seriously impaired prosecution examined her

as the prime witness in the case. The trial court and the

High Court believed her testimony. There is no reason to

dissent from the finding regarding reliability of her

evidence.

At the outset we may point out that on the aforesaid

facts no offence linked with Section 306 IPC can be found

against any of the appellants. The said section penalises

abetment of suicide. It is worded thus: 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. It is a unique legal

phenomenon in the Indian Penal Code that the only act, the

attempt of which alone will become an offence. The person

who attempts to commit suicide is guilty of the offence

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under Section 309 IPC whereas the person who committed

suicide cannot be reached at all. Section 306 renders the

person who abets the commission of suicide punishable for

which the condition precedent is that suicide should

necessarily have been committed. It is possible to abet the

commission of suicide. But nobody would abet a mere

attempt to commit suicide. It would be preposterous if law

could afford to penalise an abetment to the offence of mere

attempt to commit suicide.

Learned Sessions Judge went wrong in convicting the

appellants under section 116 linked with Section 306 IPC.

The former is abetment of offence punishable with

imprisonment - if offence be not committed. But the crux

of the offence under Section 306 itself is abetment. In

other words, if there is no abetment there is no question

of the offence under Section 306 coming into play. It is

inconceivable to have abetment of an abetment. Hence there

cannot be an offence under Section 116 read with Section

306 IPC. Therefore, the High Court was correct in altering

the conviction from the penalising provisions fastened with

the appellants by Sessions Court.

Now, we have to see whether the appellants can be

convicted under Section 511 read with Section 304B IPC.

For that purpose it is necessary to extract Section 511 as

under:

511.Punishment for attempting to commit

offences punishable with imprisonment for

life or other imprisonment.- Whoever

attempts to commit an offence punishable by

this Code with imprisonment for life or

imprisonment, or to cause such an offence to

be committed, and in such attempt does any

act towards the commission of the offence,

shall, where no express provision is made by

this Code for the punishment of such

attempt, be punished with imprisonment of

any description provided for the offence,

for a term which may extend to one-half of

the imprisonment for life or, as the case

may be, one-half of the longest term of

imprisonment provided for that offence or

with such fine as is provided for the

offence, or with both.

The above section is the solitary provision included

in the last chapter of the IPC under the title Of Attempts

to Commit Offences. It makes attempt to commit an offence

punishable. The offence attempted should be one punishable

by the Code with imprisonment. The conditions stipulated in

the provision for completion of the said offence are: (1)

The offender should have done some act towards commission

of the main offence. (2) Such an attempt is not expressly

covered as a penal provision elsewhere in the Code.

Thus, attempt on the part of the accused is sine qua

non for the offence under Section 511. Before considering

the question as to what is meant by doing any act towards

the commission of the offence as an inevitable part of the

process of attempt, we may point out that the last act

attributed to the accused in this case is that they asked

Tejinder Pal Kaur (PW-5) to go to the rail track and commit

suicide. That act of the accused is alleged to have driven

the young lady to proceed to the railway line on the next

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morning to be run over by the train. Assuming that the

said act was perpetrated by the appellants and that the

said act could fall within the ambit of attempt to commit

the offence under section 304B it has to be considered

whether there is any other express provision in the Code

which makes such act punishable. For this purpose we have

to look at Section 498A which has been added to the IPC by

Act 46 of 1983. That provision makes cruelty (which a

husband of a woman or his relative subjects her to) as a

punishable offence. One of the categories included in the

explanation to the said section (by which the word cruelty

is defined) is thus:

(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;

Thus, if the act of the accused asking Tejinder Pal

Kaur (PW-5) to go and commit suicide had driven her to

proceed to the railway track for ending her life then it is

expressly made punishable under Section 498A IPC. When it

is so expressly made punishable the act involved therein

stands lifted out of the purview of Section 511 IPC. The

very policy underlying in Section 511 seems to be for

providing it as a residuary provision. The corollary,

therefore, is that the accused, in this case, cannot be

convicted under Section 511 on account of the acts alleged

against him.

Now, we have to consider whether the High Court was

correct in convicting the appellants under Section 116 read

with Section 304B IPC. Shri R.S. Cheema, learned senior

counsel for the appellants advanced two contentions against

it. First is that Section 304B cannot apply to a case of

suicide at all, whether it is sequel to cruelty or

harassment with the demand for dowry or not. Second is

that the concept of abetment of an offence under Section

304-B is inconceivable in the absence of death of a woman

within the statutory period mentioned in that provision.

In elaborating the first contention learned senior counsel

submitted that Section 306 IPC is now intended to cover all

cases of suicide in view of Section 113A of the Evidence

Act (which was brought in by Act 46 of 1983).

Both the contentions are fallacious. The essential

components of Section 304B are: (i) Death of a woman

occurring otherwise than under normal circumstances, within

7 years of marriage. (ii) Soon before her death she should

have been subjected to cruelty and harassment in connection

with any demand for dowry. When the above ingredients are

fulfilled, the husband or his relative, who subjected her

to such cruelty or harassment, can be presumed to be guilty

of offence under Section 304B. To be within the province

of the first ingredient the provision stipulates that

where the death of a woman is caused by any burns or

bodily injury or occurs otherwise than under normal

circumstances. It may appear that the former limb which

is described by the words death caused by burns or bodily

injury is a redundancy because such death would also fall

within the wider province of death caused otherwise than

under normal circumstances. The former limb was inserted

for highlighting that by no means death caused by burns or

bodily injury should be treated as falling outside the

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ambit of the offence. In the present context it is

advantageous to read Section 113A of the Evidence Act. It

is extracted below:

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 of her husband.

Learned senior counsel submitted that since the word

cruelty employed therein is a virtual importation of that

word from Section 498A IPC, the offence envisaged in

Section 306 IPC is capable of enveloping all cases of

suicide within its ambit, including dowry related suicide.

According to him, the second limb of the Explanation to

Section 498A which defines the word cruelty is sufficient

to clarify the position. That limb reads thus:

For the purpose this section, cruelty

means-

(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.

At the first blush we thought that there was force in

the said contention but on a deeper analysis we found that

the contention is unacceptable. Section 306 IPC when read

with Section 113A of the Evidence Act has only enabled the

court to punish a husband or his relative who subjected a

woman to cruelty (as envisaged in Section 498A IPC) if such

woman committed suicide within 7 years of her marriage. It

is immaterial for Section 306 IPC whether the cruelty or

harassment was caused soon before her death or earlier.

If it was caused soon before her death the special

provision in Section 304B IPC would be invokable, otherwise

resort can be made to Section 306 IPC.

No doubt Section 306 IPC read with Section 113A of the

Evidence Act is wide enough to take care of an offence

under Section 304B also. But the latter is made a more

serious offence by providing a much higher sentence and

also by imposing a minimum period of imprisonment as the

sentence. In other words, if death occurs otherwise than

under normal circumstances within 7 years of the marriage

as a sequel to the cruelty or harassment inflicted on a

woman with demand of dowry, soon before her death,

Parliament intended such a case to be treated as a very

serious offence punishable even upto imprisonment for life

in appropriate cases. It is for the said purpose that such

cases are separated from the general category provided

under Section 306 IPC (read with Section 113A of the

Evidence Act) and made a separate offence.

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We are, therefore, unable to concur with the

contention that if the dowry related death is a case of

suicide it would not fall within the purview of Section

304B IPC at all. In Smt. Shanti and anr. vs. State of

Haryana {1991(1) SCC 371} and in Kans Raj vs. State of

Pubjab and ors. {2000(5) SCC 207} this Court has held that

suicide is one of the modes of death falling within the

ambit of Section 304B IPC.

Now we have to consider whether the appellants are

liable to be punished under Section 116 linked with section

304B IPC. We have already noted above that according to

the learned senior counsel for the appellants there is no

question of considering Section 304B unless death of a

woman had occurred. In the present case, death did not

occur. Before considering that contention we may delve

into the question whether Tejinder Pal Kaur (PW-5) was

subjected to cruelty or harassment in connection with the

demand for dowry soon before her death, on a hypothetical

assumption that her attempt to commit suicide had

succeeded.

Prosecution, in a case of offence under Section 304B

IPC cannot escape from the burden of proof that the

harassment or cruelty was related to the demand for dowry

and also that such cruelty or harassment was caused soon

before her death. The word dowry in Section 304B has to

be understood as it is defined in Section 2 of the Dowry

Prohibition Act, 1961. That definition reads thus:

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 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

any other person;

at or before or any time after the marriage

in connection with the marriage of the said

parties, but does not include dower or mahr

in the case of persons to whom the Muslim

Personal Law (Shariat) applies.

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 304B should be any property or

valuable security given or agreed to be given in connection

with the marriage.

It is not enough that harassment or cruelty was caused

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to the woman with a demand for dowry at some time, if

Section 304B 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 the 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 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

death 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.

Applying the said principle in this case we have to

refer to the evidence of the prosecution to know whether

the findings made by the High Court on the facts warrant

interference. PW-5 Tejinder Pal Kaur in her evidence said

that 4 or 5 months after her marriage, she was ill-treated

on the ground of insufficiency of dowry and then she

reported the matter to her father. But PW-5 did not say

one word in her evidence regarding any other ill treatment

relating to dowry thereafter. It is true, she said in her

evidence that in November 1995, a sum of Rs.20,000/- was

paid by her father. But neither PW-5 (Tejinder Pal Kaur)

nor PW-6 (Narendra Singh) testified that the said amount

was paid as part of the dowry or in connection with the

marriage. We cannot overlook two important events which

had happened in the family during the said long interregnum

of three years. One is the birth of the elder son on

12.11.1993 and the other is the birth of the second son on

10.6.1995. We have to bear in mind the payment of

Rs.20,000/- was made five months after the birth of the

second son. Even PW-6 had no case that his daughter was

subjected to any ill treatment in connection with the

demand for dowry on any day after she reported to him about

the demand for further dowry way back in the early 1993

months. All amounts paid by the in-laws of the husband of

a woman cannot become dowry.

Shri U.R. Lalit, learned senior counsel for Tejinder

Pal Kaur (PW-5) contended that payment of Rs.20,000/- in

November 1995 should be presumed as part of the three year

old demand for further dowry. When the very participants in

the deliberations have no such case it is not proper for

the court to make an incriminating presumption against the

accused on a very crucial ingredient of the offence, more

so when it is quite possible to draw a presumption the

other way around as well.

Thus, there is dearth of evidence to show that

Tejinder Pal Kaur (PW-5) was subjected to cruelty or

harassment connected with the demand for dowry, soon before

the attempt to commit suicide. When the position is such

it is an unnecessary exercise on our part to consider

whether Section 116 IPC can ever be linked with the offence

under Section 304B IPC.

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We, therefore, conclude that appellants cannot be

convicted under Section 116 IPC either by linking it with

Section 306 or with Section 304B. Hence the conviction and

sentence passed on them under Section 116 IPC is set aside.

We have no reason to interfere with the conviction

passed on the appellants under Section 498A IPC. We do

confirm the same. We are told that first appellant Satvir

Singh (A-1) has undergone the substantial portion of the

sentence of imprisonment imposed on him and the remaining

appellants have also undergone a long period of

imprisonment by now in connection with this case. But we

feel that the fine portion of the sentence imposed on the

appellants is too insufficient, particularly when such fine

was intended to be disbursed as compensation to PW-5. In

our view PW-5 Tejinder pal Kaur should get at least three

lakhs of rupees as compensation from the appellants. We

are told that A-2 Devinder Singh and A-3 Paramjit Kaur have

now become aged as both have crossed the age of 70. We

therefore, modify the sentence under Section 498A IPC in

the following terms:

The sentence of imprisonment imposed on the appellants

shall stand reduced to the period which they have already

undergone. We enhance the fine part of the sentence for

the offence under Section 498A IPC, to Rs. one lakh each

for all the three appellants. They shall remit the fine

amount in the trial court, within three months from today,

failing which each of the defaulter shall undergo

imprisonment for a further period of nine months.

The appeals are disposed of in the above terms.

J

[ K.T. Thomas ]

J

[ S.N. Variava

September 27, 2001.