2003(1) Crimes 62 (SC)
Supreme Court of India
(From Andhra Pradesh High Court)
M.B. Shah, K.G. Balakrishnan and D.M. Dharmadhikari, JJ.
K. Prema S. Rao & Anr. —Appellants
versus
Yadla Srinivasa Rao & Ors. —Respondents
Criminal Appeal No. 1457 of 1995
With
Criminal Appeal Nos. 1458-1459 of 1995
Decided on 25-10-2002

Very Important Point
Same facts and evidence on which accused-1 (husband of deceased) was charged u/s 498A IPC and Section 304B IPC, the accused can be convicted and sentenced u/s 306 IPC. There is no legal or procedural impediment in doing so.

Headnote:(i) Indian Penal Code, 1860—Section 498A—Cruelty to married woman to drive her to commit suicide—Deceased was driven out of home after being tortured by her husband—Parents of husband also tried—No evidence on record to show participation of parents—Trial Court convicted but High Court acquitted parents—State preferred appeal to Supreme Court—Whether there is any merit in appeal? (No)—State’s appeal dismissed.

       Held : 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 PW1-father of the deceased only in his deposition in the Court. At no earlier point of time either in the first information report Ex. P1 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. (Para 12)

       (ii) Indian Penal Code, 1860—Section 304B—Dowry death—Dowry Prohibition Act, 1961—Section 2—Definition of dowry—Evidence Act, 1872—Section 113B—Presumption as to dowry death—Husband demanded re-conveyance of house to himself from his wife which was gifted to her at the time of marriage as ‘‘stridhan’’—Tortured—Wife committed suicide—Husband, inter alia, tried—Acquitted by Trial Court—Acquittal upheld by High Court—Appeal against by parents of deceased—Husband was also tried for offence of cruelty for which he was convicted by courts below—Same evidence which was found reliable to convict husband (Accused-1) for cruelty u/s. 498A whether usable for abetting suicide u/s 306 IPC r/w Section 113A of Evidence Act? (Yes)—Cruelty u/s 498A IPC—Whether courts below were justified in convicting accused-1 u/s 498A IPC ? (Yes)—Cr.P.C. 1973—Section 221—Where it is doubtful which offence is committed—Relied on.

       Held : 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 a 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 113A of the Evidence Act. Section 498A makes cruelty by husband to wife as a punishable offence. (Paras 15 & 16)

       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 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. (Para 17)

       (iii) Indian Penal Code, 1860—Section 306 and Evidence Act, 1872—Section 113A—Abetment of suicide and presumption as to abetment of suicide by a married woman—Commitment of suicide within 7 years of marriage due to cruelty—Whether can be used to convict the accused u/s 304B on ground of dowry death in the facts of present case though charge u/s 306 IPC not framed?

       Held : 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 the suicide. The word "cruelty" as mentioned in the Explanation below Section 113A 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. (Para 18)

       Held further : 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 494A and Section 304B of IPC. (Para 20)

       Held also : 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. (Para 21)

       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. (Para 21)

       Held in addition : As provided in Section 215 of Cr. P.C. omission 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 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. (Para 24)

       Held thereafter : It may be mentioned that against confirmation of his 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 strengthly 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 harassed 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. (Para 25 & 26)

       Held finally : 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. (Para 27)