Madras High Court
Palanisami vs The Deputy Superintendent Of Police on 11 January, 2010
Author: R.Mala
Bench: R.Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.1.2010 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Crl.A.No.1654 of 2002 1. Palanisami 2. Ramathal 3. Kanagaraj .. Appellants Vs. The Deputy Superintendent of Police, Udumalpet, Coimbatore District, Udumalpet Post, Cr.No.499/2000, Udumalpet P.S. .. Respondent Criminal Appeal against the judgment of conviction and sentence in S.C.No.367 of 2001 on the file of the Sessions Court, Magalir Neethimandram, Mahila Court, Coimbatore. For appellants : Mr.S.Muthukrishnan for A-1 A-1 died. Mr.R.John Sathyan for Mr.K.Thilageswaran for A-2 & A-3 For respondent : Mr.I.Paul Noble Devakumar, Govt. Advocate (Crl. Side) JUDGMENT
The Criminal Appeal arises out of the judgment of conviction and sentence in S.C.No.367 of 2001 on the file of the Sessions Court, Mahalir Neethimandram, Mahila Court, Coimbatore, whereby the appellants/A.1 to A.3 were convicted for the offence under Section 304-B IPC and each sentenced to undergo seven years' rigorous imprisonment, the appellants were also convicted for the offence under Section 498-A IPC and each sentenced to undergo three years rigorous imprisonment and to pay a fine of Rs.1,000/-, in default to undergo six months' simple imprisonment and they are also convicted for the offence under Section 4 of the Dowry Prohibition Act and each sentenced to undergo one year rigorous imprisonment and to pay a fine of Rs.2,000/-, in default, to undergo two months' simple imprisonment. A-4, A-5 and A-6 were acquitted of the charges.
2. During the pendency of the Criminal Appeal, the first appellant/A.1 died and hence, the Criminal Appeal abates as far as A.1 is concerned.
3. The case of the prosecution is as follows:
(a) The deceased Thamizhselvi is the wife of A-3 Kanagaraj. A-1 and A-2 are the parents of A-3 Kanagaraj. The marriage between A-3 Kanagaraj and the deceased Thamizhselvi was celebrated on 12.12.1999. A-4 and A-5 are the sisters of A-3. A-6 is the brother of A-3.
(b) P.W.1 is the father of the deceased Thamizhselvi. P.W.2 is the mother of the deceased Thamizhselvi. P.Ws.3, 4 and 5 are her brothers. All of them have deposed that on 12.12.1999, the marriage between A-3 and the deceased was celebrated and at the time of marriage, seven sovereigns of gold jewels and silver ornament (M.Os.1 to 8) and other utensils were given as "Seervarisai". After marriage, both were living happily for three months and after that, the deceased was ill-treated and harassed for insufficient dowry by A-1 to A-6.
(c) P.W.1 deposed that whenever the deceased was subjected to harassment of dowry, he agreed to pay Rs.10,000/- and when the matter was pacified by the neighbours, then only, she went to matrimonial home. Then, both the son-in-law (A-3) and her daughter, the deceased were invited for "Aadi" festival. They came and P.W.1 gave dresses for them. After that, when he was at Vaadipatti Temple, then only he came to know that his daughter was not doing well and she went to hospital at Udumalpet and saw the dead body of the deceased Thamizhselvi. P.W.1 stated that his daughter committed suicide only due to ill-treatment and cruelty of the accused persons and persistent demand of dowry.
(d) P.W.2, the mother of the deceased, identified that the gold/silver jewels (M.Os.1 to 8) were given at the time of the marriage of her daughter, the deceased. They subsequently went to the place where her dead body was kept.
(e) P.W.1, the father of the deceased gave complaint (Ex.P-1) to P.W.16 Sub-Inspector of Police and a case was registered in Cr.No.499 of 2000 under Section 174 Cr.P.C. for suspicious death. Sine the death has taken place within seven years of marriage, P.W.16 S.I. Of Police sent the FIR for inquest and to the higher officials.
(f) P.W.17 Sub-Collector of Pollachi received the FIR and inspected the place of occurrence and conducted inquest in the presence of Panchayatdars, relatives and villagers and went to Government Hospital, Udumalpet and conducted inquest. Ex.P-8 is the inquest report.
(g) P.W.17 Sub-Collector examined P.Ws.1 to 5 and A-1 to A-3 and others and sent a report Ex.P-9 to higher officials stating that the death is not due to dowry harassment, but there is suspicion in the death and he requested the Deputy Superintendent of Police to conduct investigation.
(h) After the inquest, the dead body was sent for post-mortem. P.W.13 Dr.Gnanavel and P.W.14 Dr.Mariammal conducted autopsy. Ex.P-5 is the post-mortem certificate and the Doctors have stated the following injuries in Ex.P-5 post-mortem certificate:
"Appearances found at the post-mortem:
Moderately nourished body lies on back Arms Close to sides Black skin and iris eye lids-closed. Frothy discharge from nose. Tongue inside. Jaws clenched. Teeth 8 | 8 8 | 8 No discharge from ears. Rope mark. It is between chin and larynx. It is obligue Move prominent in front & sides of neck then back. The mark is absent at the back may be due to hair between liybim & stan. It is one inch in breadth. Base of the mark is pale. On dissection substaneous tissues is white & glistening. Pelechid haemarhugs adjacent to ligotue marks (confirm i.e. done doing lift). No ext injuris seen. Neck muscles-Normal. Hyoid: Intact Heart: 300 gms contains to 10 ml of fluid blood. Lungs: Rt 480gm x Lt 440g, congested. Stomach contains 50 ml of brown fluid. Hyoid Intact Liver 1000 gms congested spleen 110 gm congested. Kidneys 110 gms congested Intestine, digested with gas bladder empty. Uterus 8 gms size cicks focity. Membrane & skull Intact Brain 1000 gm congested. Following articles send for chemical analysis. 1. stomach & contents 2. Intestine & contains, 3. Liver, 4. Kidney 5. Sdestin Sodium chloride."
(i) P.W.18, the then Deputy Superintendent of Police examined the other witnesses. He went to the place of occurrence and prepared Ex.P-2 observation mahazar and drew Ex.P-10 rough sketch. He altered the offence under Section 174 Cr.P.C. into one under Sections 304-B and 498-A IPC and sent the altered report on 22.8.2000 and he examined the other witnesses. On 23.8.2000 at 11 am, he arrested A-1 to A-3 and A-6 near the house where the occurrence took place and remanded them to judicial custody. It is stated that A-4 and A-5 obtained anticipatory bail.
(j) The investigating agency investigated the matter and completed the investigation and the charge sheet was filed against the accused for the offences under Sections 304-B and 498-A IPC and Section 4 of the Dowry Prohibition Act.
4. The trial Court framed necessary charges and the accused pleaded not guilty. Before the trial Court, P.Ws.1 to 18 were examined, Exs.P-1 to P-12 were marked and M.Os.1 to 13 were produced. The trial Court came to the conclusion that A-4 to A-6 are not guilty of the offences and they were exonerated and acquitted of the charges. A-1 to A-3 were found guilty for the offences and convicted and sentenced as indicated above. Against that, the present Criminal Appeal has been preferred by the appellants-A.1 to A.3.
5. Challenging the conviction and sentence, learned counsel for the appellants contended that there is no evidence to show that there was demand of dowry and the excess jewels and further payment of money. That fact has not been considered by the trial Court. Learned counsel further stated that P.Ws.1 to 5 are the parents and brothers of the deceased Thamizhselvi and no independent witness was examined. Learned counsel further submitted that P.W.17 Sub-Collector conducted inquest and enquiry. At that time, he has given an opinion that the death of the deceased was not due to dowry demand and this fact has not been considered by the trial Court.
6. Learned counsel for the appellants further contended that the evidence of P.Ws.1 to 5 are not corroborating with the evidence first given to P.W.17 Sub-Collector. So, that fact has not been considered, because P.W.17 alone first examined all the witnesses and at that time, they have not made any whisper about the demand of dowry by the accused. Learned counsel further submitted that the conduct of the accused has proved that they were not demanding dowry, because, as soon as the occurrence was over, A-3 took the deceased to the hospital and A-1 intimated the fact to the relatives of the deceased. Till the enquiry, they were present in the place of occurrence. They co-operated with the enquiry conducted by P.W.17 Sub-Collector.
7. Learned counsel for the appellants further submitted that the marriage between A-3 and the deceased was celebrated on 12.12.1999 and the death of the deceased took place on 20.8.2000 and in between, she underwent natural abortion twice and at that time, A-1 to A-3 alone have taken care of the deceased and P.W.2, the mother of the deceased has not even taken care to come to hospital to see her daughter. If really the deceased was subjected to demand of excess jewels and money, the accused would not have taken care of her. All these aspects have not been considered by the trial Court. It is for the first time P.W.3, the brother of the deceased stated that he had paid Rs.5,000/- to the deceased. His evidence is only after the death and he is only a coolie worker and hence, he was not in a position to pay that amount and only to robe these accused in the offence, such evidence has been adduced. That has not been considered by the trial Court.
8. Learned counsel for the appellants further contended that P.Ws.13 and 14, the Doctors have in their post-mortem certificate not stated any external injury except rope mark in the neck, which has clearly proved that the deceased was not subjected to any dowry demand or harassment at the hands of the accused herein.
9. Learned counsel further submitted that after receipt of report from P.W.17 Sub-Collector, the case has been altered from Section 174 Cr.P.C to one under Sections 304-B, 498 IPC and Section 4 of the Dowry Prohibition Act. The rough sketch and the observation mahazar contain the provisions of law even on 20.8.2000 and so, these documents are concocted after the altered report has been filed.
10. Learned counsel for the appellants mainly focussed on the evidence of P.W.2, the mother of the deceased, who in her evidence has stated that her daughter, the deceased and her son-in-law came to their house for "Aadi" festival (Aadi Nonbu) and they left their house happily. After that only, the incident has taken place and so, there is no evidence to show that the deceased was subjected to dowry harassment. The trial Court has committed error and convicted the accused. Learned counsel further submits that the evidence of P.Ws.1 to 5 is that the son-in-law demanded money for improving his business/shop and so, it will not come under the purview of "dowry" and to substantiate the same, learned counsel for the appellants relied upon the decisions of the Supreme Court reported in 1997 (9) SCC 759 (Sham Lal Vs. State of Haryana) and AIR 2007 SC 763 (Appasaheb Vs. State of Maharashtra) and urged that when once the prosecution proves the demand of dowry, then only presumption under Section 113-B of the Indian Evidence Act has to be invoked. Here, the prosecution has not proved the same. Learned counsel for the appellants prayed for acquittal of the accused and to exonerate the appellants from the charges levelled against them.
11. Learned Government Advocate appearing for the respondent would contend that the alleged marriage took place on 12.12.1999 and the deceased committed suicide by way of hanging on 20.8.2000; that P.Ws.1 to 5, who are the parents and brothers of the deceased, have candidly deposed before the trial Court, stating that three months after marriage, they were living happily and after that, there was demand of excess jewels and money and that the evidence of P.Ws.1 to 5 corroborate with each other. There is no reason for discarding their evidence. Even though it was stated that the deceased underwent abortion twice and she was having stomach pain, but no medical evidence has been produced before Court. Since the evidence of P.Ws.1 to 5 is proved that she was subjected to dowry demand and that the occurrence has taken place at the house of A-1 to A-3, as per Section 113-B of the Indian Evidence Act, they have to give explanation as to why suicide has taken place.
12. Learned Government Advocate relied upon the decision of the Supreme Court reported in 2004 SCC (Cri) 2077 (Dhian Singh Vs. State of Punjab) and submits that since the occurrence has taken place at the matrimonial home, only the inmates of the family are competent persons to give explanation for commission of offence. But they have not given any explanation and the deceased was subjected to dowry demand. Learned Government Advocate also relied upon the decisions of the Supreme Court reported in 1997 Cri.L.J. 1927 (Sham Lal Vs. State of Haryana) and 2005 SCC (Cri) 511 (Kamesh Panjiyar Vs. State of Bihar) and submitted that there is evidence to show that soon before the death of the deceased, she was subjected to dowry harassment. Learned Government Advocate also relied on the decision of the Supreme Court reported in 1997 Cri.L.J. 1640 (Balram Prasad Agrawal Vs. State of Bihar) in support of his contentions.
13. Learned Government Advocate further submits that the deceased herself has intimated the fact to the parents that she was subjected to harassment to meet out the dowry demand. That factum has been correctly considered by the trial Court and it came to the correct conclusion. Learned Government Advocate prayed for dismissal of the appeal and confirmation of the conviction and sentence imposed on the appellants-accused.
14. Admittedly, the factum of marriage which took place on 12.12.1999 has been accepted. The death took place by way of hanging on 20.8.2000. During the "Aadi Nonbu", the deceased was at her parental home. It is admitted by both sides that both the deceased and A-3 went for "Aadi Nonbu" to P.W.1's house. At that time, they were presented clothes. Then, both left for their matrimonial home. But after few days, she committed suicide by hanging. P.Ws.13 and 14 Doctors have proved that the death of the deceased is suicidal by hanging, by way of marking Ex.P-5 post-mortem certificate.
15. The point to be decided is whether the trial Court is correct in holding that the deceased Thamizhselvi was subjected to cruelty and dowry demand, which forced her to commit suicide by hanging and whether it was proved by the prosecution. It is pertinent to note that in such cases, we cannot expect eye-witness for each and every demand, because, it is between spouses and in-laws inside the house and no outsiders or neighbour will poke their nose into the affairs of the neighbour and tell something. In such circumstances, non-examination of the independent witness will not be fatal to the case of the prosecution.
16. The best evidence is the persons who had met the dowry demand, namely the parents and brothers of the deceased. Learned counsel for the appellants would rely upon the evidence of P.Ws.1 to 5. Learned counsel for the appellants relied upon the evidence of P.W.1, who in his evidence, stated that after the marriage, the deceased and A-3 came for "Thai Nonbu" and during that time, they have not given any "Seer". During "Aadi Nonbu" alone, they have given clothes on their own accord. Learned counsel culled out the following portion from the evidence of P.W.1 in his cross examination:
VERNACULAR (TAMIL) PORTION DELETED
17. It is pertinent to note from the evidence of P.W.1, the father of the deceased, that even the marriage has taken place on 12.12.1999 and "Thai Nonbu" was in January 2000 and during that time, they have not given any "Seer". P.Ws.1 to 5 have fairly conceded that after the marriage, for three months, both the spouses were living happily. In such circumstances, the demand of dowry has not been proved.
18. Besides that, P.W.1 himself has stated that the accused never demanded any money and jewels. In his evidence, P.W.1 has further stated during cross examination that, VERNACULAR (TAMIL) PORTION DELETED He also fairly conceded in his evidence in cross examination that during the enquiry by P.W.17 Sub-Collector, after the death of his daughter, he has not stated anything about the Panchayat and in the Panchayat, he has accepted that he is ready to give jewels and cash.
19. P.W.2, the mother of the deceased, in her evidence stated that since A-3 has stated that since they have not taken the bride from wealthy family, he is unable to get good dowry. She fairly conceded that she has not intimated the same to P.W.17 Sub-Collector during his inquest and enquiry. She further stated that she has also not intimated the fact to P.W.17 Sub-Collector that her son-in-law has demanded Rs.10,000/-.
20. Learned counsel for the appellants would cull out some portion of the evidence of P.W.2 and stated that the mother has not taken care of her daughter even though she underwent abortion twice and she has not even taken care of her when she was at hospital. P.W.2 in her evidence, in cross examination, has stated as follows:
VERNACULAR (TAMIL) PORTION DELETED
21. While considering the above evidence of P.W.2, it is seen that 4 or 5 days before the death of the deceased, P.W.2 went to her daughter's house and at that time, the deceased disclosed that she underwent abortion and she was not doing well and that P.W.2 has not taken care of her. Learned counsel for the appellants would focus upon this portion and stated that since the second child of the deceased also got aborted, she was not doing well and she was in depressed mood and she has gone to the extent of committing suicide.
22. P.W.3 is none other than the brother of the deceased. He has stated in his evidence that his sister was assaulted by the accused demanding dowry and thrown out of the house after "Aadi Nonbu". He also stated that there was a Panchayat and this factum has been deposed before the enquiry by R.D.O. and the Police. He has further stated that after he visited the hospital, he has not given any complaint stating that her sister died due to dowry death.
23. P.W.4, another brother of the deceased, in his evidence, has stated that to expand the business, they demanded Rs.10,000/- and harassed his sister. He has stated that the factum has been intimated in the enquiry.
24. P.W.5, another brother in his chief examination, stated that when once his sister came to her parents' house, she stated that there was a problem at her house, and that her husband and in-laws, i.e. husband, father-in-law, mother-in-law, sister-in-law and brother-in-law were demanding further jewels and cash for expanding the business. In his evidence, he has stated that two months before his sister's death, the accused was demanding further jewels and cash for expansion of business.
25. It is pertinent to note that P.W.17 Sub-Collector has conducted the inquest and examined P.Ws.1 to 3 on 21.8.2000 and also the accused and P.W.17 came to the conclusion that there was no dowry demand, but since P.W.17 was suspecting the death of the deceased, he requested the D.S.P. to conduct the investigation. At this juncture, it is appropriate to consider the statement of the prime witnesses, P.Ws.1 to 5, under Section 161 Cr.P.C. The statement of P.W.1 Arumugham was alleged to have been recorded by the investigating agency on 20.8.2000 and his further statement was alleged to have been recorded on 7.9.2000 and the same were received by the Court only on 1.12.2000. Likewise, P.W.2 Kannammal was alleged to have given her statement on 20.8.2000 and her further statement was also alleged to have been recorded on 7.9.2000 and the same were received by the Court only on 1.12.2000. Moreover, the statements of P.Ws.3, 4 and 5 under Section 161 Cr.P.C., were alleged to have been recorded on 20.8.2000 / 21.8.2000 and they have been received by the Court only on 1.12.2000. It is pertinent to note that in the case of dowry death, as soon as the statement under Section 161 Cr.P.C. is recorded by the investigating agency, then and there, it has to be forwarded to the concerned Court. But there was long delay in despatching the statement of the witnesses under Section 161 Cr.P.C., to the Court. Admittedly, P.W.17 Sub-Collector has examined the witnesses on 21.8.2000 and at that time, P.W.1 has not stated about the Panchayat in respect of the demand of dowry. P.W.2 also fairly conceded that whatever she has stated before the Inspector of Police, has not been stated before P.W.17 Sub-Collector. It has clearly proved that Section 161 Cr.P.C. statements alleged to have been recorded on 20.8.2000, 21.8.2000 and 7.9.2000, have not been despatched to the Court then and there. This is fatal to the case of the prosecution. Since the statement under Section 161 Cr.P.C. is material document, it should reach the Court then and there. So, the evidence of P.Ws.1 to 5 is not trustworthy.
26. Learned counsel for the appellants would contend that it is true that the appellants have not assigned any reason as to why the deceased committed suicide, even though they were living in one and the same roof. P.Ws.1 to 5 have deposed in the R.D.O. enquiry that they came to know that it is not dowry death and so, the demand of dowry has not been proved. Since the death was by suicide, the presumption under Section 113-B of the Indian Evidence Act will not be invoked.
27. As already stated, during the first enquiry conducted by P.W.17 Sub-Collector, no one has deposed that the deceased Thamizhselvi has committed suicide due to harassment of demand of dowry. P.Ws.1 and 2's evidence is not supporting the case of the prosecution. But P.W.3, the brother of the deceased, stated that the Panchayat was convened and in that Panchayat, it was agreed to pay excess jewels and cash. But that factum has not been intimated in the R.D.O. Enquiry. P.W.3 has further stated in his evidence that he has paid Rs.5,000/-. It is pertinent to note that in P.W.2's evidence in cross examination, she has accepted that 4/5 days prior to her daughter's death, she went to her daughter's house and at that time, she has intimated that the pregnancy of the deceased was aborted and that she was not doing well and P.W.2 has not taken care of her in the hospital. At that time, no evidence has been shown that the deceased was subjected to dowry demand. Moreover, P.Ws.3 to 5 have stated that the demand has been made to expand the business only. In such circumstances, it is appropriate to consider the decision relied upon by the learned counsel for the appellants in AIR 2007 SC 763 (cited supra), wherein, it has been held as follows:
"A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. As per the definition of 'dowry' as given in 1961 Act, the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking or property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well known social custom or practice in India. It is well settled principle of interpretation of Statute that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning."
28. As already discussed, the marriage took place on 12.12.1999. The death by way of suicide occurred on 20.8.2000. The complaint to Panchayat in respect of demand of dowry, was not deposed by P.Ws.1 and 2 before P.W.17 Sub-Collector during inquest. P.Ws.1 and 2 have fairly conceded that during "Thai Nonbu", no "Seervarisai" was given to the deceased. During "Aadi Nonbu", on their own accord, her parents have presented clothes and the couple were happy and the deceased returned to her matrimonial home. 4/5 days prior to her death, P.W.2, the mother of the deceased, went to her daughter's house and P.W.2 in her evidence stated that the deceased Thamizhselvi told her that her pregnancy got aborted and so she was not doing well. Even then, P.W.2 has not taken care of her. P.W.2 fairly conceded that the husband of the deceased and her in-laws alone have taken care of her. In such circumstances, it is painful to accept that the deceased was subjected to dowry demand and she was meted out the cruelty for not giving excess cash and jewels by way of dowry.
29. At this juncture, it is appropriate to consider the decision relied upon by the learned Government Advocate, reported in 2004 SCC (Cri) 2077 (cited supra) and contended that the prosecution must establish that there was nexus between cruelty meted out by the accused and the suicide, that the cruelty induced the victim to commit suicide and no other reason was pointed out by accused for the deceased to commit suicide. In paragraph 7 of the said decision reported in 2004 SCC (Cri) 2077, it has been held as follows:
"7. ... It is true that the prosecution has to establish that there must be nexus between the cruelty and the suicide and the cruelty meted out must have induced the victim to commit suicide. The appellant has no case that there was any other reason for her to commit suicide. The evidence shows that the first appellant had demanded dowry and he had sent her away from his house and only after mediation she was taken back to the appellant's house and death happened within a period of two months thereafter. These facts clearly show that the suicide was the result of the harassment or cruelty meted out to the deceased. ...."
30. The said decision reported in 2004 SCC (Cri) 2077 is not applicable to the facts of the present case, because, in the present case, nothing has been proved by the prosecution and not pleaded by the prosecution. None of the witnesses stated that before the deceased committed suicide, she was subjected to cruelty. There is no evidence to show that there was a nexus between the cruelty and the suicide and the cruelty meted out to her for demand of dowry. P.W.2, the mother has stated that 4/5 days before the incident, she went to her daughter's house and P.W.2 never stated that the deceased has intimated the fact that she was subjected to demand of dowry. In such circumstances, the said decision reported in 2004 SCC (Cri) 2077 is not applicable to the facts of the present case.
31. Learned Government Advocate also relied upon the decision of the Supreme Court reported in 1997 Cri.L.J. 1640 (cited supra), wherein it has been held that P.Ws.3 and 4 therein have given information that on the night of the occurrence, they have heard the noise that the deceased Kiran Devi was subjected to cruelty by her mother-in-law, her husband accused No.1 and his elder brother accused No.3, which forced her to commit suicide. But, in the case on hand, no such evidence is available. Per contra, P.W.2, the mother of the deceased herself stated that four or five days prior to the death of the deceased, she went to the house of the deceased and at that time, the deceased told that she was unwell due to abortion. P.W.3 stated that on 18.8.2000, he visited his sister and at that time, he came to know that her sister demanded further cash for expansion of business of A-3. But it is only after thought. In such circumstances, the citation reported in 1997 Cri.L.J. 1640 (cited supra) is not applicable to the facts of the present case.
32. Learned Government Advocate also relied upon the decision reported in 2005 SCC (Cri) 511 (cited supra), wherein, it has been held as follows:
"9. Section 304-B IPC deals with dowry death which reads as follows:
"304-B. Dowry death--(1) Where the death of a woman is caused by any 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 any relative of her husband for, or in connection with, any demand for dowry, such death shall be called 'dowry death', and such husband or relative shall be deemed to have caused her death.
Explanation--For the purposes of this sub-section, 'dowry' shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."
The provision has application when death of a woman is caused by any 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 any relatives of her husband for, or in connection with, any demand for dowry.
10. In order to attract application of Section 304-B IPC, the essential ingredients are as follows:
(i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance.
(ii) Such a death should have occurred within seven years of her marriage.
(iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband.
(iv) Such cruelty or harassment should be for or in connection with demand of dowry.
(v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death.
Section 113-B of the Evidence Act is also relevant for the case at hand. Both Section 304-B IPC and Section 113-B of the Evidence Act were inserted by the Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113-B reads as follows:
"113-B. Presumption as to dowry death--When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation.--For the purpose of this section, 'dowry death' shall have the same meaning as in Section 304-B of Indian Penal Code (45 of 1860)."
The necessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its 21st Report dated 10.8.1988 on "Dowry Deaths and Law Reform". Keeping in view the impediment in the pre-existing law in securing evidence to prove dowry-related deaths, the legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background presumptive Section 113-B in the Evidence Act has been inserted. As per the definition of "dowry death" in Section 304-B IPC and the wording in the presumptive Section 113-B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the woman concerned must have been "soon before her death" subjected to cruelty or harassment "for or in connection with the demand of dowry". Presumption under Section 113-B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory for the Court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials:
(1) The question before the court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B IPC).
(2) The woman was subjected to cruelty or harassment by her husband or his relatives.
(3) Such cruelty or harassment was for, or in connection with, any demand for dowry.
(4) Such cruelty or harassment was soon before her death.
11. A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death, the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of "death occurring otherwise than in normal circumstances". The expression "soon before" is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. "Soon before" is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression "soon before her death" used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression "soon before" is not defined. A reference to the expression "soon before" used in Section 114 Illustration (a) of the Evidence Act is relevant. It lays down that a court may presume that a man who is in the possession of goods soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term "soon before" is left to be determined by the courts, depending upon the facts and circumstances of each case. Suffice, however, to indicate that the expression "soon before" would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effects 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 mental equilibrium of the woman concerned, it would be of no consequence.
12. Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman is required to be established in order to bring home the application of Section 498-A IPC. Cruelty has been defined in the Explanation for the purpose of Section 498-A. Substantive Section 498-A IPC and presumptive Section 113-A of the Evidence Act have been inserted in the respective statutes by the Criminal Law (Second Amendment) Act, 1983. It is to be noted that Sections 304-B and 498-A IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the sections and that has to be proved. The Explanation to Section 498-A gives the meaning of "cruelty". In Section 304-B there is no such explanation about the meaning of "cruelty". But having regard to the common background to these offences it has to be taken that the meaning of "cruelty" or "harassment" is the same as prescribed in the Explanation to Section 498-A under which "cruelty" by itself amounts to an offence. Under Section 304-B it is "dowry death" that is punishable and such death should have occurred within seven years of marriage. No such period is mentioned in Section 498-A. If the case is established, there can be a conviction under both the sections. (See Akula Ravinder v. State of A.P (1991 Supp (2) SCC 99 : 1991 SCC (Cri) 990 : AIR 1991 SC 1142) ). Period of operation of Section 113-A of the Evidence Act is seven years, presumption arises when a woman commits suicide within a period of seven years from the date of marriage.
13. Section 2 of the Dowry Prohibition Act, 1961 (in short "the Dowry Act") defines "dowry" as under:
"2. Definition of 'dowry'.--In this Act, 'dowry' means any property or valuable security given or agreed to be given either directly or indirectly--
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahar in the case of persons to whom the Muslim personal law (Shariat) provides.
Explanation I.--For the removal of doubts, it is hereby declared that any presents made at the time of a marriage to either party to the marriage in the form of cash, ornaments, clothes or other articles, shall not be deemed to be dowry within the meaning of this section, unless they are made as consideration for the marriage of the said parties.
Explanation II.--The expression 'valuable security' has the same meaning as in Section 30 of the Indian Penal Code (45 of 1860)."
14. The word "dowry" in Section 304-B IPC has to be understood as it is defined in Section 2 of the Dowry Act. Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third "at any time" after the marriage. The third occasion may appear to be unending period. But the crucial words are "in connection with the marriage of the said parties." Other payments which are customary payments e.g. given at the time of birth of a child or other ceremonies as are prevalent in different societies are not covered by the expression "dowry". (See Satvir Singh v. State of Punjab (( 2001) 8 SCC 633 : 2002 SCC (Cri) 48). As was observed in the said case "suicidal death" of a married woman within seven years of her marriage is covered by the expression "death of a woman is caused .... or occurs otherwise than under normal circumstances" as expressed in Section 304-B IPC."
33. Learned Government Advocate also relied upon the decision of the Supreme Court reported in 1997 Cri.L.J. 1927 (cited supra), wherein it has been held as follows:
"13. The corollary of the aforesaid finding is that appellant cannot be convicted of the offence under Section 304-B I.P.C. But this would not save him from the offence under Section 498-A of the I.P.C. for which there is overwhelming evidence, particularly of PW-3, Bhagwan Dass, who heard from his daughter, which evidence is admissible under Section 32 of the Evidence Act, besides his own direct dialogue with the appellant and his father. As the trial Court and the High Court found his evidence reliable, we hold that prosecution has succeeded in proving the offence under Section 498-A of I.P.C."
34. Learned counsel for the appellants relied upon the decision of the Supreme Court reported in 1997 (9) SCC 759 (cited supra), wherein it has been held as follows:
"The first premise stands established in this case that the death of the deceased took place within seven years of her marriage. The second premise that the death was caused by burns is a factum which has not been disputed. In order to establish the third ingredient, a plea is made to resort to the legal presumption envisaged in S.113-B of the Evidence Act. It is imperative, for invoking the aforesaid legal presumption, to prove that soon before her death she was subjected to cruelty or harassment. In the present case there is nothing on record to show that the deceased was treated with cruelty or harassed with demand for dowry soon before her tragic end. In the absence of any such evidence it is not permissible to take recourse to legal presumption in S.113-B of the Evidence Act."
35. Considering Section 113-B of the Indian Evidence Act and Section 304-B IPC, there must be a material to show that soon before the death, the victim was subjected to cruelty or harassment or in connection with demand of dowry. The prosecution witnesses in the case on hand, have deposed that before the death of the deceased, she was subjected to cruelty by way of demand of dowry. But as already discussed, P.W.2, the mother of the deceased alone went 4/5 days prior to the death of her daughter and at that time, P.W.2 has not stated that her daughter has intimated the fact that she was subjected to cruelty by way of demand of dowry.
36. At this juncture, it is appropriate to consider the evidence of P.W.3, the brother of the deceased, wherein he has stated that on 18.8.2000, he went to his sister's house and at that time, the accused demanded Rs.10,000/- for expanding the business. P.W.3 in his evidence, in cross examination, has stated as follows:
VERNACULAR (TAMIL) PORTION DELETED P.W.3 has not stated that the money has been demanded as dowry. In such circumstances, I am of the view that as per the decision reported in AIR 2007 SC 763 (cited supra), it is not the demand of dowry. Even if the evidence of P.W.3 is considered to be true, P.W.3 has stated that the money was demanded only for expansion of business and so, it is not amounting to dowry demand.
37. It is also pertinent to note that as per the evidence of P.Ws.1 and 2, they were residing at Amaravathi Nagar, Udumalpet, while P.W.3 in his evidence has stated that he was residing at Malayandikavunnur, which is stated to be 20 km. away from his parents' house (P.Ws.1 and 2's house). While considering the evidence of P.W.3, in his cross examination, he has stated that after "Aadi Nonbu" only, his sister, the deceased was subjected to cruelty.
38. From the evidence of P.Ws.13 and 14 Doctors and Ex.P-5 post-mortem certificate, it could be inferred that the death of the deceased was by suicide, by hanging. But the case of the respondent-prosecution is that the deceased was forced to commit suicide, unable to bear the harassment and cruelty meted out to her by demand of dowry. The trial Court found the appellants guilty of the offences under Sections 304-B, 498-A IPC and Section 4 of the Dowry Prohibition Act.
39. It is true that the deceased Thamizhselvi died within seven years of her marriage. It is also true that her death is otherwise than in normal circumstances. The third ingredient of Section 304-B IPC is that she must have been subjected to cruelty and harassment by her husband or of any of her relatives in connection with the demand of dowry soon before her death. While considering the evidence of P.Ws.2 and 3, P.W.2 visited her daughter's house 4/5 days prior to the death of her daughter, the deceased, and at that time, it is not the case of the prosecution that the deceased told P.W.2, the mother of the deceased that she was subjected to demand of dowry. Per contra, P.W.3, the brother of the deceased stated that on 18.8.2000, when he went to his sister's house, the accused demanded Rs.10,000/- and she was subjected to dowry demand. But as soon as the death occurred, a complaint has been given by the father of the deceased, P.W.1, and the said complaint was registered under Section 174 Cr.P.C. There is no evidence to prove that soon before her death, she was subjected to dowry harassment and demand of dowry.
40. "Dowry" means any property or valuable security given or agreed to be given either directly or indirectly: (a) by one party to a marriage to the other party to the marriage; or (b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties.
41. In the present case, there is no evidence before Court that at the time of fixing the marriage of the deceased with A-3, there was any demand of dowry which was agreed to, but not paid in full and so, the remaining jewels and cash are to be paid after the marriage. While considering the evidence of P.Ws.1 to 5 in their chief examination, they have never whispered as to what was the marriage proposal and all of them have deposed that after the marriage, for three months, both the deceased and A-3 were living happily. Moreover, P.Ws.1 and 2 have stated that during the "Thai Nonbu", they never gave any "Seervarisai" and in "Aadi Nonbu", of their own accord, they presented the clothes. It is not the case of the prosecution that from the date of the marriage of the deceased till her death, there was arrears of dowry by way of cash and excess jewels, since P.Ws.1 to 5 have not paid the dowry amount and excess jewels and she was subjected to cruelty. Per contra, P.W.3 has stated that for expanding the business, the accused demanded Rs.10,000/- on 18.8.2000. It is not connected with the marriage and so, it does not amount to dowry.
42. From the above discussion, I am of the view that there is no evidence to show that the deceased has been subjected to dowry demand. The trial Court, in paragraph 31 of its judgment, came to the conclusion that there is no vital discrepancy between the cross examination and chief examination of P.W.3 and came to the conclusion that the deceased was subjected to mental cruelty, and the said conclusion is not correct and the findings of the trial Court are not based on proper analysis of the evidence and hence, I am of the view that the prosecution has failed to prove that the deceased was subjected to cruelty and harassment, by way of demand of dowry, which led her to commit suicide. Hence, the accused persons are liable to be exonerated of the charge under Section 304-B IPC, since there is no evidence to show that she was subjected to demand of dowry and harassment, except the ipse-dixit of P.Ws.1 to 5, even though they have stated that the excess dowry and money had been demanded only for expansion of business of A-3 and as per the decision reported in AIR 2007 SC 763 (cited supra), it does not amount to dowry. The ingredients of Section 498-A IPC and Section 4 of the Dowry Prohibition Act are also not made out. The appellants are entitled to be exonerated of the charges and are entitled to be given "the benefit of doubt".
43. It is true that as per Section 113-B of the Indian Evidence Act, the presumption is there and the initial burden is upon the prosecution to prove the same and the prosecution has not proved that on the basis of the demand of dowry, she was forced to commit suicide.
44. For the foregoing reasonings, I am of the view that the trial Court has committed error in convicting the accused persons for the offences under Sections 304-B and 498-A IPC and Section 4 of the Dowry Prohibition Act and the prosecution has failed to prove beyond reasonable doubt that because of the cruelty meted out to her by way of demand of dowry soon before her death, she committed suicide. So, "the benefit of doubt" has to be given in favour of the appellants and they are entitled for acquittal of the charges.
45. In fine, the Criminal Appeal is allowed.
(a) The conviction and sentence imposed on the appellants/A.1 to A.3 by the trial Court are set aside. They are acquitted of the charges.
(b) The bail bond, if any executed by the appellants/A.1 to A.3, shall stand cancelled.
(c) The fine amounts, if paid by the appellants/A.1 to A.3, are ordered to be refunded.
(d) Since the first appellant/A.1 died during the pendency of the Criminal Appeal and the Criminal Appeal abates as far as A-1 is concerned and hence, the fine amount, if paid by A-1 shall be refunded to the legal heirs of A-1, on their application before the trial Court.
cs To
1. The Sessions Judge, Magalir Neethimandram, Mahila Court, Coimbatore.
2. The Deputy Superintendent of Police, Udumalpet, Coimbatore District, Udumalpet Post, Cr.No.499/2000, Udumalpet P.S.
3. The Public Prosecutor, High Court, Madras