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TMI Blog2001 (10) TMI 1169X X X X Extracts X X X X X X X X Extracts X X X X ..... rabhawati Devi (PW19) was married with accused-appellant on 23.6.1985. On 17.6.1986, within one year of marriage, Seema died of suicide. On 16.6.1986, she poured kerosene on herself and set herself to fire. Before committing suicide she wrote a suicide note and a letter to her husband in a diary (Article 'A') on pages 11 and 12 thereof. Her dying-declaration (Exbt. P/10) was recorded on 16.6.1986 by PW13, Parmeshwar Dayal, Tehsildar and Executive Magistrate. Sohan Lal Sharma is a resident of Raipur, Madhya Pradesh. The accused-appellant was residing in Shantinagar locality of Raipur. Seema's elder sister Shalini (PW5) married with Dr. Ramadhar Sharma (PW6) is also residing in Raipur. Thus, the three families, i.e., the family of father of Seema, the family of her elder sister Shalini. and the family of the accused-appellant are all residents of Raipur though residing in different localities at reasonable distances from each other. Nevertheless the three families were on visiting terms as admitted by almost all the witnesses. The finding of guilt as recorded by the Trial Court and the High Court rests on the testimony of five witnesses, namely, Atul Kumar (PW4), brother ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eema soon after the marriage. If Atul Kumar had seen Seema tense and terrorized, he must have told this fact in the ordinary course of things to his parents. But the parents do not say so. During cross examination, Atul Kumar admitted that between him and accused Ramesh there were 'good relations'. He never asked Ramesh whether and why the accused was teasing or harassing his sister. He could not give any explanation why such a natural query he did not put across to Ramesh inspite of there being good relations between the two. He further admitted that accused Ramesh and Seema often used to visit him and his parents specially on the festival days. During less than a year of marriage, Seema twice stayed with her parents for about four days each. When Shalini gave birth to a child, Seema stayed at her parents house for two days and afterwards also kept on coming to her parents and visiting hospital where Shalini was admitted. Atul Kumar specifically stated - "Seema had good terms with her in-laws and brothers-in-law". The testimony of Atul Kumar spells out that Seema's move-ments were not restricted by the accused; she was liberally allowed to see her parents and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the night which continued till 21/2 O'clock in the night. Then he again started marpit (beating) in the morning and his mind is still bad. You send the ornaments immediately and now you yourself come and do not tell the thing of letter and marpit. Tell Atul and Sudhir not to come at all. I will not come in Holi. But you come to take me and take sofa and give another. Enough, Seema." The author of the abovesaid letter is not alive. There is no one else in whose presence the letter was written. We cannot therefore read anything in the letter which it is not there. The letter has to be read as it is and inferences have to be drawn therefrom based on the expressions employed therein and in the light of other evidence adduced in the case. The letter nowhere indicates any demand of dowry having been made by the accused or the deceased having been pressurized by the accused for bringing more dowry. The first thing the letter states is a request to her father to return some of her ornaments. Sohan Lal (PW16) has himself admitted that his daughter had given some of her ornaments to him for the purpose of being repaired. There is nothing wrong, unusual or abnormal in Seema rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd relations was not to the liking of the accused-appellant. This is also borne out from a few writings such as Exbts. D/4 and D/5 which are in the form of essays written by the deceased which are full of appreciation of the respondent acknowledging the love and affection which the accused-appellant had for her but which also go to state that there was 'some deficiency' in her, she did not have a compromising temperament and therefore accused used to get annoyed and get angry on minor mistakes committed by the deceased. In such writings, written at different times, she has recalled the sweet memories of her marriage with the appellant, several ceremonies and functions related with the marriage which made her feel joyous and how well she was received by the accused-appellant and his relations in the matrimonial home after the marriage. From an independent evaluation of evidence and having gone through oral evidence adduced and the several documents available on record, mostly the writings of the deceased we are satisfied that the present one is not a case of dowry death or the deceased having been instigated into committing suicide for her failure to satisfy the dowry deman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 498-A of the Indian Penal Code. This provision was introduced by Criminal Law (Second) Amendment Act, 1983 with effect from 26.12.1983 to meet a social demand to resolve difficulty of proof where helpless married women were eliminated by being forced to commit suicide by the husband or in-laws and incriminating evidence was usually available within the four-corners of the matrimonial home and hence was not available to any one outside the occupants of the house. How-ever still it cannot be lost sight of that the presumption is intended to operate against the accused in the field of criminal law. Before the presumption may be raised, the foundation thereof must exist. A bare reading of Section 113-A shows that to attract applicability of Section 113- A, it must be shown that (i) woman has committed suicide, (ii) such suicide has been committed within a period of seven years from the date of her marriage, (iii) the husband or his relatives, who are charged had subjected her to cruelty. On existence and availability of the above said circumstances, the Court may presume that such suicide had been abetted by her husband or by such relatives of her husband. The Parliament has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary (Article A): "1. Smt. Seema Dubey, ashamed of my own faults, am committing suicide. Nobody is responsible and none should be harassed for it". On page 12 she wrote a letter to her husband as under :-"Dear Raja, With all love, Raja this is my last love. You have made me free that I may do whatever I wish and go where-ever I like. Raja, after coming in this house now I have no other place to go leaving you. You know, you have now made me free of the words I had given that I would not commit suicide. Now I would die peacefully..............Raja, this is my last word I do love you and you only, not anyone else. Now I cannot write 'yours' SEEMA" Both the writings as held by the Trial Court are in the hand of the deceased. The dying-declaration Exbt. P/10 recorded on 16.6.1986 at 3 p.m. by Parmeshwar Dayal, Executive Magistrate, PW13 is in question-answer form and reads as under :- "Q. What is your name? What is the name of Husband? Marriage when done. Ans. Seema Bai, Name of Husband - Ramesh Dubey. Marriage per-formed in June, 85. Q. What happened with you? Ans. Today in the morning I poured kerosene on me and set fire. Q. Why you s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s residence to see her. Presumably the accused may have said some such thing- you are free to do whatever you wish and go wherever you like. The deceased being a pious Hindu wife felt that having being given in marriage by her parents to her husband, she had no other place to go excepting the house of her husband and if the husband had "freed" her she thought impulsively that the only thing which she could do was to kill herself, die peacefully and thus free herself according to her understanding of the husband's wish. Can this be called an abetment of suicide? Unfortunately, the Trial Court mis- spelt out the meaning of the expression attributed by the deceased to her husband as suggesting that the accused had made her free to commit suicide. Making the deceased free - to go wherever she liked and to do whatever she wished, does not and cannot mean even by stretching that the accused had made the deceased free "to commit suicide" as held by the Trial Court and upheld by the High Court. Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of instigation though it is not necessary that actual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis of such declaration where it inspires full confidence, there is no reason why the same principle should not be applied when such a dying declaration speaking of the cause of death exonerates the accused unless there is material available to form an opinion that the deceased while making such statement was trying to conceal the truth either having been persuaded to do so or because of sentiments for her husband. The writing on page 11 of diary (Article A) clearly states that the cause for committing suicide was her own feeling ashamed of her own faults. She categorically declares - none to be held responsible or harassed for her committing suicide. The writing on page 12 of diary (Article A) clearly suggests that some time earlier also she had expressed her wish to commit suicide to her husband and the husband had taken a promise from her that she would not do so. On the date of the incident, the husband probably told the deceased that she was free to go wherever she wished and wanted to go and this revived the earlier impulse of the deceased for committing suicide. The dying declaration Exbt. P/10 corroborates the inference flowing from the two writings contained in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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