Madras High Court
State By vs Sheik Dawood on 24 February, 2012
Author: S.Palanivelu
Bench: S.Palanivelu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 24/02/2012
CORAM
THE HONOURABLE MR.JUSTICE S.PALANIVELU
Criminal Appeal No.647 of 2003
Criminal Appeal(MD)No.454 of 2010
and
Crl.R.C.No.861 of 2004
Crl.A.No.647 of 2003
State by:
Deputy Superintendent of Police
Rural Sub Division
Trichy ... Appellant/Complainant
vs
1.Sheik Dawood
2.Ibrahim
3.Ameena Beevi ... Respondents/Accused
Crl.A.No.454 of 2010
1.Sheik Dawood
2.Ibrahim
3.Ameena Beevi ... Appellants/Accused
Vs
The Deputy Superintendent of Police
Naval PattuP.S.
Crime No.1 of 1999 .. Respondent/Complainant
Crl.R.C.No.861 of 2004
S. Rasool Beevi ... Petitioner/P.W.1
vs
1.State rep.by the
Deputy Superintendent of Police,
Rural Sub Division, Trichy.
2.Sheik Dawood
3.Ibrahim
4.Ameena Beevi ... Respondents/Complainant &
Accused
PRAYER
Criminal Appeals filed under Section 378 and 374 of the Code of
Criminal Procedure, and the Criminal Revision Case filed under Section 397 and
401 of Cr.P.C against the judgment passed in S.C.No.207/1999 by the learned II
Additional Assistant Session Judge, Trichy dated 11.07.2002.
!For Appellant
[in Crl.A.647/2003] ... Mr.P. Kandasamy
Additional Public Prosecutor
[in Crl.A.454/2010] ... Mr.K.V. Sridharan for
Mr.Deva Varaprasadam
For Petitioner
[in Crl.R.C.861/2004] ... Ms.S. Srimathy
^For Respondent
[in Crl.A.647/2003] ... Mr.K.V.Sridharan
[in Crl.A.454/2010] ... Mr.P. Kandasamy
Additional Public Prosecutor
[in Crl.R.C.861/2004] ... Mr.P. Kandasamy
Additional Public Prosecutor [R1]
Mr.K.V.Sridharan [for R2 to R4]
:COMMON JUDGMENT
1. The essential facts of the prosecution case are as follows:
1.(a) P.W.1 is mother of the deceased by name Samshath Begum. P.W.2 and 3 are sister and brother of the deceased respectively. The first accused is the husband of the deceased Samshath Begum. 2nd and 3rd accused are brother and mother of the 1st accused respectively. The marriage between the first accused and the deceased took place on 8.5.1997. The law was set in motion by the complaint lodged by P.W.1 in Ex.P.3 in which she has stated that at the time of marriage they gave their daughter 10 sovereigns of gold jewels, Rs.30,000/-
cash and other household articles such as cot, almirah and also a plot situate in Kavery Nagar, near Trichy Airport, that after the marriage, they came to know that first accused was not affectionate towards his wife, that the accused demanded jewels and vehicle, that the matter was intimated to the superior officials of first accused, who advised to take a separate house, that at one point of time, the first accused drove his wife from his house and that P.W.1 and when her daughter came to take medicine, he prevented them and locked the house and on 15.8.1998 they lodged a complaint before the Women Police Station, Trichy and in the enquiry, the police advised him to take separate house, that on 31.12.1998 P.W.1 came to his daughter's house and asked first accused, that he came after some time and abused her by stating who asked her to come to the house and to go to her native place by bus and he went to the house without taking food, that her daughter told P.W.1 that her husband told that even if he were detained in jail for 7 years, he would not be bothered, that on 1.1.1999 at 6.00 p.m. she received a phone call from first accused that Samshath Begum died and she came to H.A.P.P. quarters and found her daughter dead and hence necessary action may be initiated against first accused.
1.(b) On receipt of the information the Sub-Inspector of Police P.W.14 proceeded to the H.A.P.P. Quarters where he saw the lady deed with burn injuries in Type-1 C-7 house which is in second floor. He got statement from P.W.1 and registered a case in Cr.No.1 of 1999 under section 174 Cr.P.C. Since the death occurred in one year and nine months from the date of marriage, he sent copy of F.I.R. to the R.D.O., Trichy, P.W.16 and he sent another copy of F.I.R. to Thiruverumbur Deputy Superintendent of Police P.W.17. He again went to the place of occurrence, prepared Observation Mahazar Ex.P.5, Rough Sketch Ex.P.10. He seized the plastic can of 5 litres capacity with kerosene, White colour urea bag and a match box under cover of Mahazar Ex.P.6. He also gave requisition to the Medical Officer, Trichy Government Hospital for conducting Post Mortem. P.W.16 R.D.O after getting the F.I.R., proceeded to the scene of crime and directed to send the corpse to the Government Hospital, Trichy for post mortem. He examined the witnesses and he held inquest over the dead body of the deceased and prepared Ex.P.14 stating that the cause of the death may the demand of dowry by the accused.
1.(c) He would say in his chief examination that the relatives of the deceased were again and again pressurising him to write in his report that she died on account of harassment of demand of dowry by the accused and hence against his conscience he opined as such. He also says that the District Collector also asked him to prepare the inquest as requested by the relatives of the deceased. However, he told that he might give opinion as justifiable. P.W.18 the District Collector has deposed that he did not advise P.W.16 to act as per the request of the relatives of the deceased. P.W.15 Additional Professor, attached to the Medical College Hospital, Trichy, conducted Post Mortem on the dead body of the deceased and issued Ex.p.11 Post Mortem Certificate. She sent the internal organs for toxicological examination. In Ex.P.13, Toxicological Report it is stated that six internal organs were examined, but poison was not detected in any of them. After perusing the toxicological report the doctor gave final opinion in Ex.P.12 that the deceased would appear to have died due to the effects of Extensive Burns.
1.(d) P.W.17, the Deputy Superintendent of Police, got the F.I.R. and went to the scene of crime. After getting the report from the R.D.O he altered the case into one under Section 498(A) and 304(B) I.P.C and examined the witnesses and recorded their statements. Acting on a tip off, he arrested all the three accused in Trichy Airport and sent them for judicial custody. After completion of the investigation he filed charge sheet under Section 498(A) and 304(B) I.P.C. against all the three accused.
2. When the accused were examined under Section 313 Cr.P.C with regard to the incriminating materials available against them, they denied complicity to the offences. They neither examined any witness nor marked any document on their side. The Trial Court, after analyzing the evidence on record, convicted all the three accused under Section 498(A) I.P.C and sentenced the first accused to undergo Rigorous Imprisonment for three years and to pay a fine of Rs.3000/- in default to undergo imprisonment for six months; A2 and A3 were sentenced to under go R.I. for one year each and to pay a fine of Rs.1,000/- each in default to undergo imprisonment for three months, and A1 to A3 were acquitted of the charges under Section 304(B) I.P.C. Aggrieved against the acquittal of the accused under Section 304(B) IPC, the State has preferred Crl.A.No.647 of 2003 and the complainant/P.W.1 has preferred revision in Crl.R.C.(MD)No.861 of 2004 and against the conviction under Section 498(A) IPC, the accused 1 to 3 have preferred appeal in Crl.A.(MD) No.454 of 2010.
3. Point for consideration:
"Whether the prosecution has brought home the guilt of the accused under the charges framed beyond all reasonable doubt?"
Point:
4. P.W.1 is mother, P.W.2 is sister and P.W.3 is brother of the deceased Samshed Begum. She was married to the first accused on 08.05.1997. 2nd and 3rd accused are his brother and mother. It is alleged by the prosecution that the deceased was subjected to continuous cruelty immediately after the marriage by the first accused. On 01.01.1999, she doused herself with kerosene, lit fire in the house of the first accused and thereafter she succumbed to burn injuries in the hospital. P.W.1 categorically narrates the events, stage by stage which took place aftermath the marriage with reference to the cruelty perpetrated upon her daughter under demand of dowry. She says in her chief examination that even though it was offered to give 30 sovereigns of gold jewels and Rs.30,000/- cash at the time of marriage apart from Seer Varisai articles, the relatives of the accused received Rs.30,000/- on the date itself and the first accused told that instead of 30 sovereigns it was sufficient to give 5 sovereigns and in view of the balance of jewels a plot may be given to the deceased and hence, P.W.1 and her family members had executed a registered relinquishment deed with respect to a plot sprawling to an extent of 2400 sq.ft. situate near Trichy Airport, dated 28.04.1997, in favour of the deceased under Ex.P.1. For the bridegroom they gave 10 sovereigns of gold jewels.
5. She further adds that even after 7 days of marriage the deceased used to tell her that she was not happy, that the accused had been harassing her stating that the jewels and cash provided were not enough, besides demanding a motor cycle and dining table. The third accused, the mother-in-law of the deceased used to say that the "Seer" was not enough, that had she died she would marry some other girl to the first accused and the first accused also told her to die after pouring kerosene and if she were dead he would marry some other lady. She also told P.W.1 that her husband also used to bang her head against the wall and hence she sustained head ache and that she was not provided with food.
6. Since the deceased was in depression on account of above said cruelty, P.W.1 took her to Dr. Tajudeen (P.W.13) and she was treated there as inpatient for three days. After panchayat she was taken to the house of the accused. Then she was conceived. However, the family members of the first accused disliked it and she was not allowed to take food. It was informed by the deceased to P.W.1 over phone. P.W.1 met her and gave nutritious food, fruits and biscuits. The first accused was working in E.M. Section as Fitter in Heavy Alloy Penetrator Project, (Ministry of Defence), Trichy, shortly known as H.A.P.P. There was an hospital in the factory and she was not taken to the infirmary by her husband and he also did not include her name as dependent for the purpose of treatment.
7. The deceased was brought to her parents house after performing Valaikappu. She sent a letter Ex.P.2 to the General Manager, H.A.P.P. requesting him to include her name as wife of first accused and his nominee in all the official records stating that her husband did not take her to hospital attached to the factory who failed to include her name as his wife and nominee and that he has developed intimacy with another girl and try to marry her and include her name in the official records. On 12.03.1998 a girl baby was born to deceased. The friction was continuing and after mediation she was taken to the husband/1st accused house. Even afterwards she was not even given proper food and the child was not provided with proper nutrition. She was in the house of accused only for 20 days with her child and as she informed P.W.1 that she was ill-treated, P.W.1 brought her to her house. The child health card and the identity card for taking treatment in the hospital were in the house of the first accused. They went there. But both the second and third accused prevented them from entering to the house in addition to abusing them with words of dishonour. The deceased alone went into the house. The first and second accused drove them from the house.
8.Two days later, the deceased lodged complaint Ex.P.3 with the All Women Police Station, Trichy City on 13.8.1998. The police called the parties and the deceased was sent with first accused after the understanding that he should search separate house for his parents and live with his wife and child in H.A.P.P. Quarters. Ex.P.4 is the letter of undertaking given by first accused to the inspector of police.
9.Even during the period when the deceased was living with her husband, he used to say that she had separated his parents from him and he did not provide essential things to the house such as grocery etc., and she was also not given proper food. In December, the deceased called P.W.1 over phone and he informed that her husband had not treated her happily. P.W.1 asked her sons P.W.3 Sahul Hameed and Syed Mustaffa to go and meet the deceased. They met her and told P.W.1 that the deceased was assaulted by her husband and her face was seen swelling. He also told that the first accused demanded colour TV and Washing Machine.
10.The deceased also told P.W.1 that she was ill-treated by the husband demanding the said articles. P.W.1 incurred loan and purchased the television and washing machine in Trichy Vasanth and Co. and she with P.W.2 went to H.A.P.P. Quarters on 25.12.1998 and gave them to the deceased. The deceased rang up on the next day and told P.W.1 that her husband said that he demanded colour TV but black and white TV was given and that instead of giving washing machine with two switches, a washing machine with one switch alone was given and both of them had to be retuned and the articles demanded should be brought. On 31.12.1998 P.W.1 went to the quarters and met her daughter. She wept and stated that her husband told her that he was prepared to go to jail even for 7 years after silencing her and even if he last the job, it would just be a loss of hair to him. While she was speaking to the deceased, the first accused came to the house and asked P.W.1 not to come to the house by berating her.
11.On the next day i.e. On 1.1.1999 at about 9.30 a.m. the deceased called P.W.1 over phone stating that she could not remain there, that she was assaulted by the first accused and she told to take her to the house, for which P.W.1 told that since it was Ramzan time, she would come by 6 'o' clock in the evening. But at 6.00 p.m. he received a phone call from her son-in-law's house asking them to come to the quarters at once. P.W.1 went there and saw the deceased dead with burns. She has also added that the Television, Washing Machine and Seer Varisai articles were returned to her by the officials of H.A.P.P.
12.In the cross examination, the accusations found in the chief examination of P.W.1 have been denied, but not the incidents happened on and after 25.12.1998.
13.The evidence of P.Ws.2 and 3 are also in tune with that of P.W.1. They also deposed about the cruelty upon the deceased and the events which took place on and after 25.12.1998 specifically. Significant it is to note that the demand of T.V. and Washing Machine by the first accused and the receipt of articles from P.Ws 1 and 2 and the events which happened on and after 25.08.1998, including the versions on the part of the first accused which drove her to commit suicide, were not denied in their cross examinations.
14.P.W.6 is an auto driver, who used to take the deceased and P.W.1 in his auto. He says that on one occasion, the deceased had stated that her husband assaulted her on her ear and when they went to the house of the first accused, he along with his brother stopped them at the entrance and picked up quarrel and that on 25.12.1998 she took P.W.1 in his auto along with T.V. and Washing Machine and he came to know that after a few days the deceased died.
15.P.W.7 is a retired railway employee. He knows the family of P.W.1. He says that on enquiry, the deceased told him that she was tortured in her father- in-law's house.
16.P.W.11 the Inspector of Police in the All Women Police Station says about the lodging of complaint by deceased and the settlement between them. P.W.13 doctor would say that when she came to him for treatment, the deceased told him that she was tortured in her mother-in-law's house and was treated as inpatient, since she was very weak.
17.The oral account of P.W.16 the then R.D.O.,Trichy in this case is somewhat peculiar. He says that the family members of the deceased pressurised him to prepare a report to the effect that kerosene was poured upon the deceased and was se afire and she was pushed into the house and killed. But he refused to write like that and hence they refused to give statement, that they informed the District Collector on the same day who sent for him and directed him to draft report as desired by the family members of the deceased, but P.W.16 was definite that he only would write the real state of affairs and hence the District Collector told him that it was his discretion, that his (P.W.16) conscience knew that there would not have been any dowry torture and only at the repeated request of the family members of the deceased, he came out with opinion in his report that dowry demand might be the cause for the death. He was treated as hostile witness and was examined by prosecution in cross. He is the fact finding authority. But in view of the evidence given by him as aforementioned, the cause of death could not be ascertained. The then District Collector P.W.18 would strongly deny the statement of P.W.16 that it is false to state that he advised P.W.16 to render report in favour of the parents of the deceased, that he did not speak to him on this affair and the P.W.16 did not report him that he was pressurised and threatened by the parents of the deceased.
18.The oral evidence of P.Ws.1 to 3 are corroborated by P.Ws.6,7 and 13. Merely because P.W.6 is an auto driver, his evidence could not be brushed aside. The evidence of the independent witnesses are natural and convincing and in view of this Court they duly corroborate the oral accounts of P.Ws.1 to 3. Even in the absence of the oral testimonies of P.Ws.6, 7 and 13, the evidence of P.Ws.1 to 3 would stand independently since they are reliable in the presence of other materials available in this case, such as the letter given by the deceased to the General Manager of H.A.P.P. in Ex.P.2, Complaint given by her before the police in Ex.P.3 and also the undertaking written by the first accused on 15.8.2012 in Ex.P.7. It is not stated that Ex.P.7 was obtained under threat. On the same date the deceased was also gave a letter to the police which is available along with Ex.P.7. Another circumstances to see the truth in the evidence of P.W.1 is her complaint statement in Ex.P.3. The occurrence took place at about 6.00 p.m. On 01.01.1999. P.W.1 was informed, who came to H.A.P.P. Quarters immediately, the police also visited the scene of occurrence and the Sub-Inspector of Police P.W.14 recorded statement from her in Ex.P.4 at 8.00 p.m. On 1.1.1999 in which she has stated the demand of dowry, cruelty perpetrated upon the deceased and the events which took place on 31.12.1998 and 1.1.1999. This Court does not find smell rat on the allegations contained in Ex.P.3. In the report of R.D.O. the panchayatdars appear to have stated that the deceased was died subjected to the cruelty by the accused.
19.The learned II Additional Assistant Sessions Judge, Trichirappalli, has analysed the evidence and reached a conclusion that the charge under Section 498(A) I.P.C has been proved by the prosecution and found the accused guilty under the charge, recorded their conviction and passed sentences. Insofar as the charge under Section 304(B) I.P.C is concerned, the trial Court did not accept the case of the prosecution and acquitted the accused of the charge. The reason assigned by the trial Court is that, at the outset the case was registered under Section 174 Cr.P.C. and thereafter on 15.2.1999 the case was altered to one under Section 498(A) I.P.C. and on 18.2.199 it was further altered into one under Section 304(B) I.P.C and the statements recorded by the investigating officer P.W.13 were not placed for perusal and the reason for the police to alter the case into one under Section 304(B) I.P.C is not known, for which there may be some extraneous circumstances for the parents to bring the case under Section 304(B) I.P.C and there is no basis for charging the accused under the Section. Further, even P.W.1, discontent with the investigation by P.W.17 requested for CBCID police enquiry, which shows that P.W.17 did not take the investigating officer in a right direction and hence charge under Section 304(B) I.P.C is not sustainable.
20.In the considered opinion of this Court, the above said reasons are not appreciable which could not be accepted because abundant materials were available to the police even at the threshold, for charging the accused under Section 304(B) I.P.C. When this type of cases are registered, usually the police register the case under Section 174 Cr.P.C. When the investigation is in progress, as warranted by circumstances they are altering the case to the correct provision of law. In this case, the attitude of P.W.17 could not be found fault with. There could be no compelling reasons for P.W.17 to bring the case under Section 304(B) I.P.C. also. Even at the outset, he was having the materials to alter the case under Section 304(B) I.P.C. In the absence of motive nor ill-feeling attributed to P.W.17, it is not proper to find fault with him. The statement of witnesses recorded by P.W.17 under Section 161 Cr.P.C are sufficient for him to alter the case into one under Section 304(B) I.P.C. In view of the above said observation, this Court is of the considered view that bringing the charge under Section 304(B) I.P.C.on record is appropriate.
21.As far as the proof available for Section 304(B) I.P.C. as regards the culpability of the accused is concerned, this Court finds that even though the second and third accused were found guilty of the offence under Section 498(A) I.P.C, their acts could not be brought within the purview of Section 304(B) I.P.C. There is no allegation against them that soon before the death, they played role in driving the deceased to take this extreme step to commit suicide. Insofar as the first accused, the husband of the deceased is concerned, reliable evidence are available to infer that soon before her death, he demanded dowry in the form of articles. He returned the TV and washing machine stating that instead of colour television and washing machine with 2 switches, he was given a black and white T.V. and a washing machine with one switch, besides which he also mutilated the sentiments of the deceased by stating that he was ready to go to the prison for 7 years after doing away with her and the employment was nothing for him.
22. P.W.1 gave TV and washing machine on 25.12.1998. The first accused asked the P.W.1 to take them back and bring new version of articles as stated above. On 1.1.99 at about 9.30 a.m, the deceased spoke to P.W.1 over phone stating that she could not continue to live with her husband and in the evening of the said day she committed suicide. The consecutive events stated supra would indicate that soon before the death, there was a dowry demand, coupled with cruelty on the part of the first accused which promoted the deceased to commit suicide. Hence the first accused is guilty under Section 304(B) I.P.C.
23.P.W.1 was quizzed in her cross examination that on account of unbearable headache she committed suicide. When the first accused was examined under Section 313 Cr.P.C. he filed a written statement and produced certain prescriptions which do not show the name of the deceased. Two prescriptions are in the name of Mana Begum and other prescriptions stand in the name of the 3rd accused.
24.In the outpatient book issued by H.A.P.P. Hospital for the deceased, it is seen that on 31.12.1998, the deceased took treatment for headache. She was advised to take plenty of oral fluid and added salts besides the tables Slugeron, Calmpose 5 mg and Stometil. Vertigo was diagnosed on her. The dictionary meaning of vertigo is, "a sensation of whirling and loss of balance, associated particularly with looking down from a great height, or caused by disease affecting the inner ear or the vestibular nerve; giddiness."
25.On 28.12.1998 also, she had complained of head ache and loss of sleep. Hence, she was given prescription to take tablets Metopar, calmpose and Neurobian. Entries are available in the book from 24.6.1998. But on the above said two occasions alone she complained of vertigo and head ache. It shows that she might not have been suffering with continuous intolerable headache so as to take a decision of ending her life.
26.The learned counsel for the appellant would contend that the evidence of P.Ws.1 to 3 are not believable, that there is no adequate corroboration for their evidence, that the evidence available in this case would not indicate the guilt of the accused under Section 498(A) and 304(B) IPC, that no charge under the provisions of Dowry Prohibition Act has been framed, that the settled decisions would show that a demand for the household article can not be treated to the demand of dowry, that there is no clinching evidence to show that there was dowry torture soon before the death and that the accused may be absolved of all charges.
27.The learned counsel appearing for P.W.1 who is the petitioner in the revision petition would contend that there is nothing wrong on the part of the trial Court to find the accused guilty under Section 498(A), that plausible materials are available to prove the guilt of the accused under Section 304(B) IPC and that the reasons as recorded by the trial Court for rejecting the charge under Section 304(B) IPC are not satisfactory.
28.The learned Additional Public Prosecutor would submit that the prosecution has proved the guilt of accused beyond all reasonable doubt, that the Court below has not appreciated the evidence of prosecution witnesses with reference to Section 304(B) IPC in a proper perspective and that there is no valid ground to disturb the conviction by the trial court for Section 498(A) IPC and that the Court below should have convicted and sentenced the accused under Section 304(B) IPC also.
29. A legal presumption is available under Section 113 (B) of Evidence Act which is relatable to Section 304(B) IPC. A heavy burden lies on the accused to prove his innocence. Having regard to the language of Section 113 (B) of the Evidence Act, when a question arises as to whether a person has committed the dowry death of a women and soon before the death such woman has been subjected to cruelty or harassment by such person, any demand of dowry, the Court shall presume that such person had caused the dowry death. The following are the relevant provisions to be borne in mind:
304(B) IPC. 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 purpose 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.
113(B) of Evidence Act. 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 has 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 purposes of this section "dowry death" shall have the same meaning as in section 304B, of the Indian Penal Code (45 of 1860).
30.Dowry death has been defined in Section 304(B) IPC and when such death occurs within 7 years of marriage the presumption under Section 113(B) arises. The presumption is rebuttable at the instance of the accused. The Honourable Supreme Court has dealt with the terms "soon before" in its Judgment in 2000 SCC (Cri) 935 [Kans Raj v. State of Punjab and others] which is cited by the learned counsel for the appellant/accused. The relevant portion is as follows:
"15.It is further contended on behalf of the respondents that the statements of the deceased referred to the instances could not be termed to be cruelty or harassment by the husband soon before her death. "Soon before" is a relative term which is required to be considered under specific circumstances of each case and no straight jacket formula can be laid down by fixing any time limit. This expression is pregnant with the idea of proximity test. The term "soon before" is not synonymous with the term "immediately before" and is opposite of the expression "soon after" as used and understood in Section 114, Illustration (a) of the Evidence Act. These words would imply that the interval should not be too long between the time of making the statement and the death. It contemplates the reasonable time which, as earlier noticed, has to be understood and determined under the peculiar circumstances of each case.
31.In (2008) 1 SCC Crl.172 [Biswajit Halder alias Babu Halder and others v. State of West Bengal] the Honourable Supreme Court has held that mere evidence of cruelty and harassment is not sufficient to bring an application of Section 304(B) IPC and it has to be shown that such cruelty or harassment was for or in connection with the demand for dowry.
32.In (2007) 3 SCC 468 [Appasaheb and another v. State of Maharashtra], Their Lordships have held that the demand made by the accused from the parents of deceased to meet domestic expenses and for purchase of manure cannot be said to be a demand for dowry. Hence, in order to bring the ingredient of Section 304(B) IPC, the allegation of demand of dowry ought to be established along with that of cruelty. In the case on hand, even though the first accused demanded Television and Washing Machine, the domestic articles, he insisted his wife to bring colour T.V. and Washing Machine with 2 switches which can be termed to be demand of dowry. In addition to this demand he also told the deceased that even he would go to jail for 7 years and his job was nothing for him. The attitude of the first accused towards his wife, in the considered view of this Court, would attract Section 304(B) I.P.C.
33.The Honourable Supreme Court also had an occasion to discuss about the meaning of "cruelty" provided for Section 498-A IPC. In (2010) 1 SCC (Crl.) 1015 = (2009) 13 SCC 330 [Manju Ram Kalita v. State of Assam] it is observed as follows:
"21. "Cruelty" for the purpose of Section 498-A I.P.C. is to be established in the context of S. 498-A IPC as it may be a different from other statutory provisions. It is to be determined/infered by considering the conduct of the man, weighing the gravity or seriousness of his acts and to find out as to whether it is likely to drive the woman to commit suicide etc. It is to be established that the woman has been subjected to cruelty continuously/persistently or at least in close proximity of time of lodging the complaint. Petty quarrels cannot be termed as `cruelty' to attract the provisions of Section 498-A IPC. Causing mental torture to the extent that it becomes unbearable may be termed as cruelty."
34.In order to establish the cruelty, the prosecution has to show the cruelty had been continuously/persistently perpetrated upon the complainant in order to attract section 498(A) IPC. As far as the case on hand is concerned, it is in evidence that after lodging Ex.P.3 complaint by the deceased the first accused undertook to live with his wife peacefully and a compromise was reached between the parties in the police station on 15.8.1998. Hence, it is argued that thereafter there was no connection between the deceased and 2nd and 3rd accused and it could not be believed that she was subjected to cruelty by A2 and A3. But P.W.1 has stated that even after the deceased and the first accused came separately, at the instigation of his family members, A1 harassed her. As far as first accused is concerned sufficient evidence is available to show that he had been continuously harassing the deceased. Insofar as A2 and A3 are concerned evidence is that at their instigation A1 was subjecting the deceased to cruelty. In this case, the law was set in motion by the complaint lodged by P.W.1 The harassment on the deceased had been continuous which culminated in the commission of offence on the deceased.
35.In the above said decision in Manju Ram Kalita's case, the complaint for cruelty lodged by the wife after four years of leaving the matrimonial home. But the facts in this case are distinguishable. She had lived with her husband separately after 15.8.1998 and there had been torture by all the accused upon her as evident from the oral testimony of P.W.1. Even if the cruelty on the part of A2 and A3 is stated earlier than August 1998, lodging of complaint on 1.1.1999 cannot be said to be after a long time.
36.The Full Bench of the Apex Court has also discussed the relevant provisions in (2001) 2 SCC 577 [Shamnsaheeb M.Multtani v. State of Karnataka]. The operative portions are as follows:
"27.The postulates needed to establish the said offence are: (1) Death of a wife should have occurred otherwise than under normal circumstances within seven years of her marriage; (2) soon before her death she should have been subjected to cruelty or harassment by the accused in connection with any demand for dowry. Now reading section 113B of the Evidence Act, as a part of the said offence, the position is this: If the prosecution succeeds in showing that soon before her death she was subjected by him to cruelty or harassment for or in connection with any demand for dowry and that her death had occurred (within seven years of her marriage) otherwise than under normal circumstances the court shall presume that such person had caused dowry death.
28.Under Section 4 of the Evidence Act whenever it is directed by this Act that the Court shall presume the fact it shall regard such fact as proved unless and until it is disproved. So the court has no option but to presume that the accused had caused dowry death unless the accused disproves it. It is a statutory compulsion on the court. However it is open to the accused to adduce such evidence for disproving the said compulsory presumption, as the burden is unmistakably on him to do so. He can discharge such burden either by eliciting answers through cross- examination of the witnesses of the prosecution or by adducing evidence on the defence side or by both."
37.The burden is heavily upon the accused to disprove that the death was not caused by any dowry demand, provided if the death occurred within 7 years of the marriage. As for this case, the first accused has not disproved nor shifted the burden statutorily cast upon him that the death did not occur due to any demand of dowry. As held by the Honourable Supreme Court in the above said case in Appasaheb and another v. State of Maharashtra, 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. But the facts in this case remain as that the demand of Colour TV and Washing Machine with two switches cannot be termed to be a financial stringency to meet any urgent domestic expenses. The first accused hence, cannot take recourse to the benefit of the said decision.
38.In a decision of this Court reported in 2010-2- L.W.Crl. 966 [J.Dayalan Babu and another v. State rep. By the Inspector of Police CBI/SCB/Navi Mumbai] T.Sudanthiram,J. has held that the decision of committing suicide was not due to any ill-treatment by the accused and that there is no demand of dowry and there was no harassment to the deceased and it was only due to her mental illness and as the death of the deceased occurs 7 years after the date of marriage, Section 113 (B) of the Evidence Act could not be invoked against the accused and as such there is no material to attract the ingredients of the offence under Section 306 I.P.C. The facts available in the said case are entirely different, where the deceased suffered mental illness and the death occurred beyond 7 years from the date of marriage.
39.In (2010) 1 Supreme Court Cases (Cri) 955 = (2009) 12 Supreme Court Cases 80 [Bhairon Sing v. State of Madhya Pradesh] the Apex Court has also held that under Section 32(1) of the Evidence Act, oral evidence of witness about what the deceased had said against accused about treatment meted out to her to sustain conviction under Section 498-A IPC. The evidence available in record should relate to the circumstances which are related to the death of the deceased, that even though in that case, the siblings of deceased P.W.4 and P.W.5 has stated that their deceased sister had informed them that the accused had tortured that she had to arrange a job for him or to get the registry of a house in his name or cash of Rs.1,00,000/- can be made to him so that he can do some business and that since what has been deposed by P.Ws.4 and 5 has no connection with any circumstance of transaction which resulted in her death, their evidence are inadmissible under Section 32(1) of the Evidence Act. The position existing in the present case is otherwise. Whatever told by the deceased to her mother P.W.1 with regard to the demand of dowry in the form of articles, the reaction of the peevished first accused saying that she had to return the black and white T.V and washing machine with one switch and further his irritating statement to his wife that even he was prepared to go to jail for 7 years and the loss of his employment would amount to a hair fall alone, prompted the deceased to plunge into the decision of committing suicide.
40.The learned counsel for the accused also garnered support from a decision of the Supreme Court in (2010) 1 SCC Crl.288 = (2009) 10 SCC 206 [Arulvelu and another v. State and another] wherein the Honourable Supreme Court has formulated the principles in dealing with the appeal against acquittal. It is held that the appellate court should be very slow in setting aside a judgment of acquittal where two views are possible and that Appellate Court would not be justified in setting aside the trial court judgment unless it is either perverse or wholly unsustainable in law and that the accused is presumed to be innocent until guilt is proved, that the trial court's acquittal bolsters the presumption that he is innocent and the appellate Court must keep this fundamental principle in view.
41.This Court does not find two views in this case. The only view of this Court is that the presumption under section 113(B) of Evidence Act remains unrebutted. This Court also finds perversity of findings in the judgment of trial Court as far as the discussion taken up on the offence under Section 304(B) IPC and the findings ae unsustainable in law.
42.Following t he principles laid down by the Honourable Supreme Court, when the facts of the case are carefully approached by this Court, it comes to light that the first accused is also guilty under Section 304(B) I.P.C. No sufficient evidence are available as against 2nd and 3rd accused with reference to the offence under Section 304(B) I.P.C. In such view of this matter, the findings and conclusion of the trial Court as regards the charge under Section 304(B) I.P.C. against 1st accused has to be dislodged and the judgment is set aside to that extent. 2nd and 3rd accused are acquitted of the charge under Section 304 (B) IPC. The prosecution has proved the case beyond reasonable doubt against A1. The charge under Section 498(A) IPC against all the accused has been established. I answer this point accordingly.
43.In the result, Crl.A.No.647 of 2003 is allowed in part confirming the judgment of conviction and sentence of A1 to A3 for the offence under Section 498(A) IPC, finding guilty of first accused under Section 304(B) IPC and finding A2 and A3 not guilty under Section 304(B) IPC and acquitting them of the charge under Section 304(B) IPC. Crl.A.No.454 of 2010 is dismissed confirming the conviction and sentence passed against A1 to A3 u/s 498(A) IPC. In view of the above stated disposal of Crl.A.No.647 of 2003, Crl.R.C.No.861 of 2004, which is disposed of.
44.Since the first accused has been found guilty under Section 304(B) IPC, he is directed to appear before me on 05.03.2012 at 2.00 p.m. for questioning of sentence.
The first accused, as per the direction of this Court appeared today. Since he was found guilty under Section 304 (B) IPC, he was questioned as to the sentence to be imposed upon him. He pleaded that a lenient view may be taken.
2. Considering the representation of the first accused as well as the other circumstances of this case, he is sentenced to undergo a rigorourous imprisonment for seven years and also to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for six months under Section 304 (B) IPC. The period of custody which he has already undergone in the prison is directed to be set off in the substantial sentence of imprisonment. The disposal of the case properties is as per the direction of the trial court.
rgr 05.03.2012 BEING MENTIONED:
These Criminal Appeals and Criminal Revision case having been listed on this day under caption 'being mentioned' on 07.03.2012 in pursuance of the order of this Court dated 05.03.2012 and made herein in the presence of the aforesaid counsels on the either side, the Court made the following order:
Today, this case has been listed under the caption "For being spoken to".
2. The learned counsel appearing for the appellant and the learned Additional Public Prosecutor are present.
3. In continuation of para no.2 of the judgment of sentence passed on 05.03.2012, the following sentence is added :-
"The sentence upon the first appellant already imposed by the trial court under Section 498A IPC shall run concurrently with the sentence imposed by this Court under Section 304(B) IPC.
4. The other contents of the judgment of sentence dated 05.03.2012 remains unaltered.
To
1. THE SECOND ADDITIONAL ASSISTANT SESSIONS JUDGE, TRICHY.
2. THE PRINCIPAL SESSIONS JUDGE, TRICHY.
3. THE DEPUTY SUPERINTENDENT OF POLICE, RURAL SUB DIVISION, TRICHY.
4. THE DEPUTY SUPERINTENDENT OF POLICE, NAVALPATTU POLICE STATION, TRICHY.
5. THE SUPERINTENDENT OF CENTRAL PRISON, PUZHAL, CHENNAI.
6. THE SUPERINTENDENT, CENTRAL PRISON, TRICHY.
7. THE DIRECTOR GENERAL OF POLICE, CHENNAI-4.
8. THE DISTRICT COLLECTOR, TRICHY.
9. THE ADDITIONAL PUBLIC PROSECUTOR, MADURAI BENCH OF MADRAS HIGH COURT, MADURAI.