PASUMARTHY PRABHAKAR RAO Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This criminal appeal is filed by the two accused who are convicted and sentenced by the Assistant Sessions Judge, Kothagudem in Sessions Case No. 97 of 1989. The Sessions Judge, by his judgment dated 28/05/1990 convicted A. 1 and A. 2, the husband and the mother-in-law of the deceased Seetharathnam for offences under sections 498A and 306, I.P.C. A. 1 and A. 2 were sentenced to suffer R.I. for two years for the offence under S. 498A, I.P.C. For the offence under S. 306, I.P.C. A. 1 was sentenced to suffer R.I. for a period of five years. A. 2, on the ground that she is a female, was sentenced to suffer R.I. for a period of three years for the offence under S. 306, I.P.C. Both the sentences to run concurrently. The Sessions Judge actually framed the first charge for the offence under S. 498A, I.P.C. The second charge was framed for the offence under S. 306, I.P.C. Alternatively under the second charge he framed a charge for the offence under Section 304B, I.P.C. In the judgment, the learned Sessions Judge discussed the entire evidence elaborately, recorded his findings with regard to six points for consideration framed by him in para 6 of the judgment. Point No. 4 deals with the alternative charge under S. 304B, I.P.C. The learned judge recorded his findings on the various points for consideration as follows : On the first point he held that Seetharathnam committed suicide by drowning herself in the well. On the second point, he held that the evidence establishes beyond doubt that A. 1 and A. 2 used to harass and subject Seetharathnam to cruelty on the ground that she was barren and that the dowry brought by her was inadequate and meagre. He also observed that it is established beyond any element of reasonable doubt that A. 1 and A. 2 harassed Seetharathnam and subjected her to cruelty for a number of years until her death with demands to bring more money from her parents. They harassed, taunted and tormented her for being childless. They used to call her a barren woman time and again and they also threatened that A-1 would desert her and remarry to beget children. All these facts amount to mental cruelty and harassment. On Point No. 3, the Court recorded it findings as follows : "The prosecution has succeeded in establishing that A-1 and A-2 subjected Seetharathnam to cruelty and harassment day in and day out, that by their conduct A-1 and A-2 had abetted the commission of suicide by Seetharathnam." On Point No. 4, it held that the death of Seetharathnam has occurred otherwise than under normal circumstances within a period of seven years of their marriage. On Point No. 5, he came to the conclusion that the presumption under S. 113A of the Evidence Act applies and that Seetharathnam, committed suicide within a period of seven years from the date of her marriage and that the accused failed to rebut the presumption raised under S. 113A of the Evidence Act. On Point No. 6, he recorded a finding to the effect that the prosecution succeeded in establishing the guilt of the accused beyond reasonable doubt for the offence under S. 498A, I.P.C. and for the offence under S. 306, I.P.C. The Judge did not record any finding as to whether the ingredients of the alternative charge under S. 304B, I.P.C. are established. In the concluding paragraphs, he never dealt with the alternative charge. He never recorded a finding as to whether the accused are liable to be acquitted for the alternative charge under S. 304B, I.P.C. Aggrieved by the judgment and sentences, the present appeal is filed.

(2.) In this appeal Sri Y. Rama Rao appearing for the appellate contends that there is absolutely no evidence of harassment or cruelty meted out to the deceased. Hence the conviction under S. 498A, I.P.C. is unsustainable. He also contends that there is absolutely no evidence of abetment by the accused for the suicide committed by Seetharatnam. The conviction for an offence under S. 306, I.P.C. is wholly unsustainable. In fact, there are different versions as to the cause of death of Seetharathnam. There is no proof that she committed suicide by taking poison. There is no proof that she died as a result of drowning. The evidence reveals that when she was taken out of the well, she was not actually drowned. She was caught on the angulars fixed to the motor. The exact cause of her death is not placed before the Court. The Chemical Examiner's Report Ex. P. 5 excludes the possibility of death due to fatal injuries and death by poison. Mr. Y. Rama Rao contends that in this case, there is no scope for invoking the aid of S. 113A of the Evidence Act. There is no positive evidence about harassment. At least, there is no evidence of any proximate harassment just before the alleged suicide by Seetharathnam. There is every possibility of her falling in the well accidentally in a drunken state. Mr. Rama Rao relies upon a few decisions of the High Courts and the Supreme Court in support of his arguments.

(3.) On behalf of the State, the learned Public Prosecutor contends that in this case, there is abundant evidence to show that Seetharathnam was treated cruelty and harassed continuously for three reasons : (1) constant demands for more money and more dowry. She was continuously pestered and asked to get more money. (2) She was illtreated alleging that she is a barren woman. (3) The husband was threatening her by saying that he would marry a second wife. Thus she was humiliated, harassed and tortured mentally and physically. It is a case of continuous harassment. An offence under S. 498A, I.P.C. is well established. It is true that there is no positive evidence of accused actually abetting the suicide committed by Seetharathnam. But there is ample material to indicate that she must have been administered poison before she jumped into the well. The finger of guilt points to the two accused who were the only other occupants of the house. The conduct of A-1 and A-2 also indicates that they are the people responsible for her consuming poison and jumping into the well. What exactly happened immediately before she jumped into the well is a matter which was exclusively known only to the two accused and the deceased. Considering the fact that in this case the marriage took place in 1984 and the death took place otherwise than under normal circumstances within seven years of the marriage as a result of cruelty and harassment, an offence under S. 304B, I.P.C. is well established. In fact, the Sessions Judge recorded findings which clearly prove that the prosecution established the guilt of the accused for an offence under S. 304B, I.P.C. But unfortunately he convicted the accused for an offence under S. 306, I.P.C. ignoring the fact that an alternative charge under S. 304B, I.P.C. was also framed and, in fact, the alternative charge was well established. This is a case where the Court should invoke its power under S. 386, Cr.P.C. and altering the finding, convict the appellants for an offence under S. 304B, I.P.C. The Public Prosecutor submits that the sentences imposed by the trial Court for an offence under S. 306, I.P.C. have necessarily to be enhanced so as to bring the sentences in conformity with the statutory requirements of S. 304B, I.P.C. This can be done by the Court by issuing notice for enhancement of the sentence and then after giving an opportunity, the sentence may be enhanced.