JUDGMENT Umeshwar Pandey, J.
1. This jail appeal arises out of the judgment and order of conviction and sentence dated 10.11.2000 passed by Additional Sessions Judge, Agra whereby the appellant was found guilty and convicted for the offence punishable under Sections 304B and 498A I.P.C. The trial court has awarded sentence of ten years rigorous imprisonment for the offence punishable under Section 304B I.P.C. and two years rigorous imprisonment for the offence punishable under Section 498A I.P.C. to the appellant accused.
2.The factual background leading to the trial of the aforesaid accused is that the appellant was married to the deceased Smt. Sushma about four years before the date of incident (6.8.1993). Soon after the marriage, the appellant Sunil Garg started demanding a sum of Rs. 20,000/- from the deceased and used to pressurize her to collect this sum from her parents and the complainant brother - PW 1 Rameshwar Prasad. The deceased had reported this matter to her mother PW 2 - Smt. Premwati and the brother PW 1 Rameshwar Prasad. On occasions, the brother PW 1 gave certain amount of money to his sister, which of course could not quench the thirst of the accused. PW 2 Smt. Premwati also gave certain amount to his daughter but that too did not satisfy the accused. He continued torturing the deceased for the demanded money and on the date of incident i.e. 6.8.1993 PW 3 Malkhan Singh was approached by the accused Sunil Garg, who told him that his wife was quarrelling with him and he should help him (accused) by calling his brother from Noori Darwaja locality. On this request of the accused, PW 3 sent his wife to pacify the deceased, who immediately came back and told him that Smt. Sushma was under the flames. On her alarm several helpers came from neighbourhood and they tried to save the deceased. Meanwhile, PW 3 rushed to the brother of deceased Rameshwar Prasad (PW 1) and reported about the incident. After an hour when PW 1 and 3 arrived at the scene, they found that Smt. Sushma had died and the police had arrived on the spot.
3. PW 1 Rameshwar Prasad lodged the report of the incident at the Police Station the same day at 5.00 P.M. and the case under Sections 498A and 304B I.P.C. was registered. The dead body of Smt. Sushma was inquested upon under supervision of the Investigating Officer - Vijay Kumar Garg (PW 8). The dead body was sent for post mortem examination and Dr. A.C. Verma (PW 6) did the autopsy. He found that Smt. Sushma had received superficial to deep burn injuries all over the body except both the soles. She had died due to shock as a result of anti mortem burn injuries.
4.The Investigating Officer (PW 8) conducted the entire investigation, visited the spot, recorded the statements of the witnesses and after its completion, submitted the charge sheet against the appellant accused. The Investigating Officer, PW 8 had concluded after whole investigation that Smt. Sushma had committed suicide on account of torture meted out to her at the hands of her accused husband Sunil Garg.
5. The accused appellant was charged for the aforesaid two offences to which he pleaded not guilty. Subsequently, in his statement under Section 313 Cr.P.C., he stated that his wife committed suicide because she wanted to live in the city of Agra whereas he was residing in his village.
6. The prosecution in support of its case examined the complainant - PW 1 Rameshwar Prasad, PW 2-Smt. Premwati, the mother of deceased, PW 3-Malkhan Singh, the person who had rushed to brother of the deceased to inform him about the incident, PW 4 Maya, the wife of Malkhan Singh (PW 3), PW 5 Omveer Singh, PW 6 - Dr. A.C. Verma, PW 7 - Constable Hari Babu and PW 8 - Vijay Kumar Garg, the Investigating Officer.
7. The prosecution in support of its case has proved as many as 14 documents as Ext. Ka-1 to Ka-14.
8. The defence has not advanced any evidence oral or documentary whatsoever in the present case in support of its version.
9. I have heard Sri Nikhil Kumar, learned counsel for the appellant and the learned A.G.A. for the respondent.
10. In the present case, the F.I.R., which has been promptly lodged after the incident stated that the appellant had set fire to his wife Smt. Sushma as a result of which she died. This allegation of the complainant - PW 1 did not find support from the evidence collected during the investigation and it has come in the evidence of PW 8 Vijay Kumar Garg. The Investigating Officer after completing the whole investigation, reached a conclusion that Smt. Sushma, on account of her extreme suffering and continuous torture at the hands of her husband, had committed suicide by setting herself to fire. The facts appearing in the statement of PWs 3 and 4 also support the aforesaid conclusion of the Investigating Officer. Malkhan Singh PW 3 states that just before the incident, he was asked by the accused Sunil Garg to call the brother of the deceased because Smt. Sushma was quarrelling with him. PW 3 had sent his wife Maya (PW 4), who immediately came back and reported that Smt. Sushma was under flames. He also came out of his house and found Smt. Sushma burning. He immediately rushed to the brother of Smt. Sushma and brought him on the scene of occurrence within an hour or so. PW 4 Maya states that on the asking of her husband, she went to the house of Smt. Sushma and found her under flames. She came back and reported the incident to her husband, who went to the spot along with Sunil Garg, the accused. This story, as narrated by these two witnesses, who gave a natural ocular account of the incident, make it more than evident that the appellant did not have any role of setting fire to the deceased and instead it was Smt. Sushma herself who had set fire to her body after sprinkling kerosene oil and thus, she committed suicide.
11. May be as it is that Smt. Sushma committed suicide and the appellant did not have role of setting fire to her, but it makes no difference. It is still a case within four corners of the offence of dowry death because if the death of the lady is caused by 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 his relatives for or in connection with demand of dowry, such death shall be called 'dowry death' and such husband or his relative shall be deemed to have caused her death. This definition of dowry death is given under Section 304B(1) of I.P.C. itself. In this context, Section 113B of Indian Evidence Act has added an adjectives to such offence of 'dowry death' by introducing a presumption clause for the courts against such person who is accused of offence.
12. From the evidence of PWs 1 and 2 both it is more than evident that the deceased Smt. Sushma was married to the appellant accused Sunil Garg only about four years before the incident. The truthfulness of this evidence has not been disputed by the accused in his statement given under Section 313 Cr.P.C., rather he has admitted this fact. Nothing has been asked to these witnesses during the cross examination as to challenge this fact disclosed in their statements that the marriage of the deceased with accused was within four years of the incident. As such, if such a wife, whose marriage was solemnized with the accused within seven years of the incident, has died otherwise than under the normal circumstances on account of burn injuries, these ingredients of definition of dowry death have been established by the prosecution in the present case.
13. As regards the cruelty or harassment by the husband accused in connection with in demand of dowry as has been alleged by the prosecution in this case also, the evidence of PWs 1 and 2 as has come before the trial court is again found to be truthful in that regard. PW 1, the brother of the deceased and PW 2, the mother of deceased both consistently state that there was persistent demand of money from the side of the accused from his wife Smt. Sushma and she has been quite regularly tortured for non fulfillment of the said demand. The deceased frequently visited her parents' place and reported the harassment meted out to her at the hands of the accused. PWs 1 and 2 both have given out before the trial court that on occasions they made certain payments of money to the deceased so that it should reach the accused to quench his temptations for dowry but that did not yield positive results. PW 1 has also stated this fact that the appellant Sunil Garg on occasions came to his sister while she was at her parents' place and there also he used to assault her. Some time certain reports were given to the police, which did not take any action. Nothing has come in the cross examination of these two witnesses as to demolish the veracity of this part of their statement relating to the demand of dowry and consequent torture practiced upon the deceased. Therefore, the statements of these two witnesses that there was persistent demand of dowry from the side of appellant husband for non fulfillment of which there was regular torture and harassment practiced upon the deceased, has also rightly been held to be fully acceptable by the trial court. The said evidence fully establishes the fact that the accused husband was making regular demand of dowry and when it was not fulfilled the tortured and harassed the deceased, which ultimately led her to commit suicide.
14. In fact, in such cases of dowry death Section 113B of Indian Evidence Act has introduced a scope for presumption by the court against the accused that he caused the dowry death. This presumption as made available to the court, by this statutory amendment casts a heavy burden upon the accused to rebut it and in case the accused has failed the court has absolutely no option but to presume the commission of alleged offence against the accused. In the present case, no material has been brought on record from the side of the defence to rebut the aforesaid presumption available against the accused under Section 113B of Indian Evidence act. The accused in his statement under Section 313 Cr.P.C. has disclosed that his wife wanted to live in Agra city whereas he was living in village and this led her to commit this suicide. This explanation as given from the side of the defence for the suicide of Smt. Sushma, does not have any corroboration or support from any material on record. On the contrary, the evidence, which has come on record shows that the couple was living in Mohalla Bodala in the city of Agra at the time of incident. The incident took place in the neighbourhood of PW 3 Malkhan Singh, who at the time of incident in the year 1993, was residing in House No. 812 Section 1, Awas Vikas Colony, Bodhla, Agra. According to PW 3, the appellant Sunil Garg had also come to stay in House No. 809 of the same locality along with his wife Smt. Sushma. Obviously, they were residing in the city of Agra, which according to the accused was the desire of the deceased. If this was the state of affairs, she should not have committed suicide on that count at all. Therefore, the explanation or cause, which has been given for commission of suicide of his wife by the accused in his statement, is wholly unacceptable and the trial court has rightly rejected it. No other reason for commission of suicide of the deceased has come forth during the cross examination of PWs 1 and 2, who have clearly given out before the trial court that Smt. Sushma was persistently tortured for non fulfillment of demand of dowry and there is no point to reject their statements and to accept the statement of the accused that the suicide was committed for non fulfillment of her desire to live in the city of Agra. This statement of the accused given by way of explanation does not find support from any material available on record, rather this is contradicted very strongly from the prosecution evidence as referred to above.
15. Thus, from the aforesaid discussion of the evidence, it is made fully crystal clear by the prosecution that the deceased Smt. Sushma had committed suicide on account of persistent torture and harassment meted out to her at the hands of her husband, the appellant Sunil Garg for non fulfillment of his consistent demand of money as dowry. The offence punishable under Section 304B I.P.C. thus, is proved to the hilt and the trial court is not found to have committed any legal or factual error in holding the accused as established guilty for the said offence.
16. As regards the offence punishable under Section 498A I.P.C. under which also, the appellant has been convicted, it is an offence said to have been committed if the husband or his relatives subjected an woman to cruelty by driving her to commit suicide or by causing serious injury or danger to her life or they harass her with a view to coercing her or any of her relatives to meet any unlawful demand for any property or valuable security. This cruelty as has been explained in Section 498A I.P.C. is fully covered within the cruelty as contained under Section 304B I.P.C. Therefore, the offence punishable under Section 304B I.P.C. being graver offence, this offence under Section 498A I.P.C. stands merged with that and no separate punishment or conviction for that offence is required in this case. As such, the conviction as has been recorded under Section 498A I.P.C. being redundant is not to be affirmed by this appellate court.
17. In view of the aforesaid, this appeal having no force is hereby dismissed and the judgment and order of conviction and sentence dated 10.11.2000 passed by the trial court against the appellant for the offence punishable under Section 304B I.P.C. is hereby affirmed. The conviction and punishment awarded for the offence punishable under Section 498A I.P.C. is held to be redundant.