(Per : MR.JUSTICE D.H.WAGHELA)
1. The appellants, father and son, are convicted for the offences punishable under sections 304-B and 498-A read with section 114 of the Indian Penal Code (IPC) and sentenced accordingly by the impugned judgment dated 30.12.2005 of learned Additional Sessions Judge, Gandhinagar in Sessions Case No.47 of 2005. The prosecution case in brief was that within ten months of marriage, Rehthunnisa, wife of appellant Allaudin @ Sameer and daughter-in-law of appellant No.2 Nizamuddin, committed suicide by hanging herself on 27.3.2005. A criminal complaint in that regard was made by the father of the deceased wherein allegations were made about cruelty and demand of dowry by the accused persons. After examination of 10 eye-witnesses and production of 14 relevant documents, the trial Court appreciated the evidence and found that unnatural death of the victim was proved. It was also found from the evidence that the deceased had been subjected to repeated demands of money and cruelty due to which the offence of dowry death was proved and hence the order of conviction and sentences was made as aforesaid.
2. Arguing the appeal, learned counsel Mr.Kartik Pandya, appearing for the appellants, submitted at the outset that, in the peculiar facts and circumstances of the case, the appeal in respect of the husband of the deceased was pressed only for reduction of sentence, but the appeal for the father-in- law was pressed for acquittal in view of complete lack of reliable evidence in respect of his involvement either in commission of any cruelty or demand of any money from or through the deceased.
3. Examining the evidence in light of the submissions made on behalf of the appellants, it was seen that the complainant, father of the deceased, had deposed as PW.1 at Exh.7 to state that his deceased daughter was treated well for one month after her marriage and thereafter her mother-in-law had started having kidney disease due to which the appellants asked her to bring money from her parents. Therefore, the complainant had borrowed Rs.20,000/- and paid to her and again his daughter had settled well at her matrimonial home. 15 to 20 days before her death, the deceased had returned to her parental home with the complaint that the appellants were demanding money from her. Thereafter, she was sent to her matrimonial home, with her brother and a sum of Rs.1500/-. It was thereafter that she committed suicide and he inferred that the suicide was committed due to physical and mental torture. He admitted in his cross-examination that his daughter often used to come to his place and he did not know much about the activities of the appellants. He also admitted that he had never gone to his daughter's matrimonial home for any talk or persuasion. He also admitted that he had not lodged any complaint or talked to the police when he had gone to take home the dead body of his daughter; it was thereafter that he had gone to the police station with a written complaint prepared in advance.
3.1 The other important witness was Shabana Banu (PW.4, Exh.11), sister-in-law of the deceased, who was also married in the same family in the same ceremony of mass marriage held on 23.5.2005 but she was, at the time of deposition, living with her parents. She deposed that the parents were making same demand of her and the sum of Rs.20,000/- was in fact paid to the appellants. Without narrating or specifying any specific incident, she generally deposed that the appellants were often causing physical and mental torture to the deceased and, in her opinion, the deceased had committed suicide because of such cruelty. In cross-examination, she could not reply as to exactly when the demand of Rs.20,000/- was made and when such amount was paid to the appellants. There was no other evidence which could be pointed out by the prosecution to conclusively prove or substantiate the allegation that not only the husband but the father-in-law of the deceased was committing cruelty and demanding dowry. It was pointed out by learned counsel Mr.Pandya that Amjad Khan, brother of the deceased, who had lastly gone with the deceased to leave her at her matrimonial home, was not examined by the prosecution and, therefore, any evidence of actual behaviour of the appellants with the deceased or her relatives was purposely not brought on record by the prosecution which exclusively relied upon the unsubstantiated allegation of demand and payment of Rs.20,000/- much prior to the date of the incident.
4. Learned counsel Mr.Pandya relied upon decision of the Apex Court in Harjit Singh v. State of Punjab [2005 (8) Supreme 353] to submit that the ingredients required to be proved by the prosecution in a case punishable under section 304-B of IPC are that the death of the woman must be abnormal, such death must have occurred within seven years from the date of her marriage, the victim must have been subjected to cruelty or harassment by her husband or any relative, such cruelty or harassment must be for or in connection with demand of dowry and it must be established that such cruelty and harassment was made soon before the death of the victim. As held in Satvir Singh v. State of Punjab [(2001) 8 SCC 633], there can be many other occasions and instances for payment of money or giving property as between the spouses, which are not enveloped within the ambit of “dowry” in connection with the marriage. And, the alleged harassment or cruelty for section 304-B should have happened “soon before her death”, wherein the proximity to death is pivotal and emphasis is on the death being in all probabilities the aftermath of such cruelty or harassment. If an interval has elapsed between the infliction of such cruelty and harassment and the death and the interval is wide, the Court would be in a position to gauge that in all probabilities harassment and cruelty would not have been the immediate cause of the death. Thus, there must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence. In such circumstances, the Supreme Court has opined that the presumption arising either under section 304-B of IPC or section 113-B of the Indian Evidence Act could not be invoked against the accused persons.
5. It was, on that basis, submitted that, even as some adverse circumstances could be assumed or inferred against the husband of the deceased, the allegation of demand of dowry and physical or mental cruelty by the other appellant remained fully unsubstantiated and could not be proved by vague evidence referred to hereinabove. The admitted fact of preparing the complaint implicating the father-in-law, after admitted absence of any attempt on the part of the complainant at even talking with the appellants or bringing about some understanding or reconciliation, clearly indicates that the complainant or anybody on his behalf had not cared to ascertain the facts before making the allegations, which appeared to be based only on what was told to him by the deceased when she used to visit his house after marriage. Even that second-hand account was very vague as far as any mental or physical torture or demand of dowry by the second appellant were concerned. He has stated at the end of his statement under section 313 of Cr.P.C. that he was in receipt of the entire expenditure for treatment of his wife from the government and a false case of demand of dowry was set up against him.
6. Learned A.P.P., appearing for the respondent, could not point out any evidence from the record which could prove any immediate impetus by the second appellant to the deceased by subjecting her to any cruelty or harassment in connection with any demand for dowry. Learned A.P.P. produced before the Court jail record of both the appellants, according to which the husband of the deceased has reached the age of 29 and his behaviour in jail is reported to be good. It was fairly conceded that appellants did not have any criminal antecedent. Therefore, it was submitted for the appellants that the Court was required to take a lenient view in respect of the sentence imposed upon appellant No.1, and appellant No.2 was required to be acquitted.
7. In the facts and for the reasons discussed hereinabove, it clearly appears that the prosecution had failed to prove the ingredients of the offences punishable under sections 498-A and 304-B of IPC, insofar as no specific evidence of any incident, conversation or demand and exchange of money between the deceased and her father-in-law were proved and no cruelty or harassment soon before the suicide was proved by any reliable evidence. Therefore, the appeal is required to be allowed to the extent that appellant No.2, i.e. Nizamuddin Kamruddin Shaikh, has to be acquitted of the charges levelled against him. As for the first appellant- husband, he has already undergone more than six years of rigorous imprisonment and, in view of the submissions recorded hereinabove, punishment lesser than the punishment imposed would meet the ends of justice, in the facts of the case. Accordingly, the appeal is allowed and the impugned judgment and orders are set aside to the extent that appellant No.2 is acquitted of the offences punishable under sections 304-B and 498-A read with section 114 of IPC and appellant No.1 is convicted for the offence punishable under section 304- B of IPC and sentenced to rigorous imprisonment for seven years and six months. He is also convicted for the offence punishable under section 498-A of IPC and sentenced to two years of rigorous imprisonment with fine of rupees two thousand, in default, additional rigorous imprisonment for three months. All the sentences shall run concurrently and the imprisonment already undergone shall be set off under section 428 of Cr.P.C.
(KMG Thilake) Sd/ ( D.H.Waghela, J.) Sd/ ( N.V.Anjaria, J.)