Umesh Chandra Nigam vs State of U.P.

Alok K. Singh, J.

Under challenge in this appeal is the judgment and order dated 19.10.2002 passed by Sri Ashok Kumar Awasthi, learned Additional Sessions Judge, XV, Lucknow by means of which he acquitted the appellant under Section 306 I.P.C. but convicted him under Section 498A I.P.C. and sentenced to go rigorous imprisonment for three years and to pay an amount of Rs.10, 000/, in default six months'' additional imprisonment.

Briefly stated the facts of the case are that the appellant was married with the deceased Jyotsana on 28.02.1994. She committed suicide on 13.11.1996 around 4.00 p.m. in her matrimonial house. On receiving information the brother of the deceased lodged the first information report under Sections 498A and 304B I.P.C. During investigation no evidence regarding alleged demand of dowry was found and therefore the chargesheet was submitted only under Section 306 I.P.C. and under same section the charge was also framed against the appellant and three other accused who happen to be his two unmarried sisterinlaws and one brother.

In support of its case the prosecution examined as many as seven witnesses including the first informant. After getting their statements recorded under Section 313 Cr.P.C. the accused persons produced as many as four witnesses including himself and two doctors.

The learned lower court reached to the conclusion that there is no sufficient evidence to convict any of the accused under Section 306 I.P.C. Therefore he acquitted all the accused under Section 306 I.P.C. But on the basis of one letter i.e. Exhibit Ka2 the learned lower court convicted the appellant under Section 498A I.P.C. But at the same time he acquitted all the three other accused under Section 498A I.P.C., giving them benefit of doubt.

Feeling aggrieved by above judgment and order this appeal has been filed.

Heard Sri Nagendra Mohan, learned counsel for the appellant and Sri D.P. Upadhyay, learned Additional Government Advocate and perused the material on record.

Before entering into the merits of the case certain admitted facts may be mentioned as under:

This was the second marriage of the appellant who had earlier divorced his first wife by mutual consent because on account of hormonal disturbances she had developed mustaches and beard on her face. After second marriage with the deceased on 28.02.1994, the appellant took her to various places of interest such as Agra, Bombay etc. and also to various religious places such as Har Ki Pedi, Laxman Jhula, Badrinath Temple, Dwarika Pushkar Ghat etc. As many as 28 photographs of such places have been brought on record and duly exhibited. In the photographs of religious places mother and sister etc. have also joined. The appellant was working as Technical Officer in C.D.R.I. As the deceased was not conceiving the appellanthusband also got her treated by several doctors of repute. Out of them Dr. Komboj the then Superintendent of Fatima Hospital, Lucknow and Dr. Asha Nigam, Medical Officer C.S.I.R. have been examined in defence. The relevant prescriptions and papers of medical treatment have also been brought on record. But it appears that despite all this, the deceased unfortunately could not conceive and ultimately ended her life on 13.11.1996 around 4.00 p.m. in her room upstairs where both husband and wife used to live and cook separately from other family members. When the husbandappellant returned in the evening from C.D.R.I. he found the room bolted from inside and then informed the police who came and broke the door open. Then the F.I.R. in question was lodged by the brother of the deceased on the next day. The father of the deceased has neither lodged any F.I.R. nor he or his wife were made witness in this case. The brother has categorically admitted in his substantive examination that his deceasedsister never wrote any letter to him making any complaint about any demand of dowry or harassment. He also conceded that even both the letters i.e. Exhibit Ka2 and Exhibit Ka3, which were written to husband and the brother respectively on the day of suicide do not contain any allegation in respect of cruelty or harassment.

As mentioned hereinabove The F.I.R. of this case was initially got registered under Sections 498A and 304B I.P.C. treating it to be a case of dowry death. But in the absence of any evidence in respect of any demand of dowry or consequential harassment immediately before death the chargesheet was filed only under Section 306 I.P.C. and the charge was also framed under the same section but that too could not be proved on the basis of the evidence on record. Hence the appellant and three other accused were acquitted of the charge under Section 306 I.P.C. But the appellant was convicted under Section 498A I.P.C. The learned court below was of the view that in the face of charge under Section 306 I.P.C. a conviction under Section 498A I.P.C. can also be made.

It is true that an offence under Section 306 I.P.C. is grave in comparison to Section 498A I.P.C. because of the quantum of punishment which can be awarded under section 306 I.P.C. but that by itself cannot justify conviction under different section under which charge was not framed and question under Section 313 Cr.P.C. were also not put to the accused from that angle to explain the evidence which had come against him. The import of both the sections are slightly different. The ingredients of both the offence punishable under both the sections are also different.

Concededly the charge was framed only under Section 306 I.P.C. and the evidence was led, cross examination was done and questions under Section 313 Cr.P.C. were asked from that angle only. Not only this, keeping in view that particular charge, the accused adduced his defence also only in that respect.

The offence punishable under Section 498A I.P.C. has been added under the separate chapter i.e. Chapter 21A which specifically deals with cruelty by husband or relatives of husband. The Word ''cruelty'' has been specifically defined in this section itself.

Explanation : For the purpose of 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.

Therefore the offences under Sections 498A and 306 I.P.C. are different. Section 498A is of wider nature though entails lesser punishment than Section 306 I.P.C. under which charge was framed and in furtherance whereof examination and crossexamination of witnesses was made. Questions under Section 313 Cr.P.C. were also confined to Section 306 I.P.C. under which charge was framed. But the conviction has been made under Section 498A I.P.C. The accused was thus rather taken by surprise which was certainly against the norms of fair trial and justice.

Now it has to be considered as to whether or not on the basis of the evidence on record, the offence under Section 498A I.P.C. was proved at all. First of all, the learned trial court has erred in interpreting the law laid down in the case of Shobha Rani Versus Madhukar Reddi reported in (1998) 1 Supreme Court Cases 105 which is not applicable here because of different facts of that case. The learned trial court in this case has convicted the appellant only on the basis of an inference it drew from the two letters which were admittedly written by the deceased, one to her husband i.e. the present appellant and the other to her brother which have been exhibited as Exhibit Ka2 and Ext Ka3. The contents of both the letters are as under:

On the basis of two letters learned trial court found that there is an indication that some insult had to be born by the parental family of the deceased but at the same time it opined that it would not come within the ambit of cruelty as punishable under Section 498A I.P.C. From this stage onwards the learned trial court confined its further discussion only in respect of the remaining letter which was written by the deceased to her husband (Exhibit Ka2). The learned trial court observed that in this letter there is mention about expenses incurred by the husband appellant in fooding, clothing, travelling and treatment of the deceased which according to an impression gathered by the wife (deceased), ought to have been born by the deceased herself and therefore she wrote letter to her brother to get the same paid off from her savings deposited in the Bank and that she also nominated her brother to get those savings. But it was her angle of emotional thinking. There are no specific allegations that these expenses were ever demanded directly or indirectly. She might have drawn her own inferences under some depression particularly because she was not able to conceive or to deliver a child even after her long and continuous treatment by many doctors. But had there been any such real and specific demand even expressed by any gesture or conduct of husband appellant, the wife herself might have paid it during her life time itself from her savings which she had made from her earnings prior to her marriage. Otherwise also even if these expenses were thought to be shared by the wife, it could not have been construed a demand of dowry amounting to cruelty (498A I.P.C) as has been laid down in the case of Shobha Rani (Supra) itself upon which the lower court itself has placed reliance. A wife after all must extend all help to husband and so too the husband to wife. After all they are partners in life. They must equally share happiness and sorrow. They must help each other. One cannot take pleasure at the behest of the other. The learned court below had not given any thought to these points and has straightway jumped to its conclusion on the basis of the aforesaid letter which contains only aforesaid cryptic and vague impression gathered by the deceased on this point. Had there been any such thing the parents would have certainly come forward. But in this case they did not come forward either to lodge report or to give evidence. Her brother himself conceded that in both these letters there is nothing indicating any harassment. When the author of the letter did not say any such thing clearly and the readers to whom it were addressed also did not understand any such thing, then why in the absence of any valid reason the court should take out any such inference merely on the ground of suspicion only. The lower court should have preferred probable to possible. Nevertheless the deceased was a noble soul and probably she was apprehending that the language used in her letter may not be misunderstood. That is why in the end of the letter, as a matter of caution, she specifically addressed and requested the police and the judiciary that nobody should be punished for her death.

Learned A.G.A. placed reliance on the case of Dinesh Seth Versus State of N.C.T. of Delhi reported in (2009) 2 Supreme Court Cases (Cri) 783, but the facts and circumstances of the case are different from the present one and therefore it has no application in the present case.

From the discussion made hereinabove it would appear that the learned trial court reached to the conclusion probably on the basis of some suspicion. But suspicion howsoever strong may be, it cannot take place of proof and accused should not be convicted unless the charge is proved against him beyond any shadow of reasonable doubt. In the present case the accused appellant is at least entitled to the benefit of doubt.

Therefore in view of all the facts and circumstances as discussed hereinabove, I come to the conclusion that the conviction of the appellant under Section 498A I.P.C. was not justified and therefore this appeal deserves to be and is accordingly allowed. The conviction and sentence of the appellant are quashed.