Madras High Court
Munirathna vs State Represented By The Inspector Of ... on 13 July, 2022
Author: D.Bharatha Chakravarthy
Bench: D.Bharatha Chakravarthy
Crl.A.No.428 of 2019 and Crl.A.No.502 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Date : 13.07.2022
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Crl.A.No.428 of 2019
and
Crl.A.No.502 of 2019
In Crl.A.No.428 of 2019:
1.MuniRathna
2.JayaRaman ... Appellants
Versus
State represented by the Inspector of Police,
SIPCOT Police Station,
Krishnagiri District. ... Respondent
(Crime No.723 of 2013)
In Crl.A.No.502 of 2019:
Muniyappan ... Appellant
Versus
1.State rep. by
The Inspector of Police,
SIPCOT Police Station,
Hosur.
(Crime No.723 of 2013)
2.Ashok Kumar ... Respondents
https://www.mhc.tn.gov.in/judis
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Crl.A.No.428 of 2019 and Crl.A.No.502 of 2019
Prayer in Crl.A.No.428 of 2019: Criminal Appeal is filed under
Section 374(2) of Criminal Procedure Code, to call for the entire records in
connection with the S.C.No.19/2014 on the file of the Learned Sessions
Judge, Fast Track Mahalir Court, Krishnagiri and set aside the conviction
and sentence dated 25.06.2019, in S.C.No.19/2014, imposed by the Learned
Sessions Judge, Fast Track Mahalir Court, Krishnagiri.
Prayer in Crl.A.No.502 of 2019: Criminal Appeal is filed under
Section 372 of Criminal Procedure Code, to set aside the order of acquittal
in respect of A3/Ashok Kumar, passed in Judgment dated 25.06.2019 in
S.C.No.19 of 2014, on the file of the Learned Sessions Judge, Fast Track
Mahila Court, Krishnagiri.
In Crl.A.No.428 of 2019:
For Appellants : Mr. V. Paarthibhan
For Respondent : Mr. S. Vinoth Kumar,
Government Advocate.
in Crl.A.No.502 of 2019:
For Appellant : Mr. S. Duraisamy
For Respondent : Mr. S. Vinoth Kumar, (for R1)
Government Advocate.
: Mr. V. Paarthibhan (for R2)
COMMON JUDGMENT
Crl.A.No.428 of 2019 is filed by the appellants, who are the accused No.1 & 2 in S.C.No.19 of 2014, aggrieved by the Judgment of conviction, convicting them for the offenses under Sections 498A and 304(B) of IPC, r/w Section 34 of IPC.
https://www.mhc.tn.gov.in/judis 2/42 Crl.A.No.428 of 2019 and Crl.A.No.502 of 2019
2.Crl.A.No.502 of 2019 is filed by P.W.1/father of the deceased/wife of the third accused, aggrieved by the Judgment of acquittal, acquitting the third accused/husband viz., Ashok Kumar from the offenses charged of.
3.Since both the appeals have arisen out of the same case and judgment, they are taken up for disposal together by this common judgment.
4.The case of the prosecution is that on 22.05.2013, when P.W.13/ the Inspector of Police was on duty at the SIPCOT Police Station, Krishnagiri. P.W.1 appeared before him and gave a statement to the effect that he had given his daughter in marriage to Ashok Kumar/ the third accused in this case on 19.11.2011 and the couple had 10 months old baby. The said Accused No. 3 and his parents were torturing her to bring dowry. While so, on 21.05.2013 at 09.22 P.M, the deceased called him from her mobile phone and reported that her husband and in-laws have hit her. After some time, one Srinath/P.W.3 called P.W.1/father of the deceased at about 10.20 P.M and informed that his daughter was lying in an unconscious stage and immediately, thereafter, when the parents of the deceased/victim went to the daughter's house and came to know that their daughter committed https://www.mhc.tn.gov.in/judis 3/42 Crl.A.No.428 of 2019 and Crl.A.No.502 of 2019 suicide by hanging herself, therefore, P.W.1/father of the deceased lodged a complaint.
5.Upon such statement, a case in Crime No.723 of 2013 was registered on 22.05.2013, under Section 174 of Cr.P.C. Thereafter, upon receipt of the report of the RDO, the case was altered as to one under Section 304 (B) of IPC and subsequently, after investigation, by a further alteration, the offense under Section 498A of IPC was also included.
6.P.W.15, Inspector of Police, had investigated the case and laid a final report, proposing that all the three accused guilty of the above said offenses. The same was taken on file by the learned Judicial Magistrate No.II, Hosur in P.R.C.No.26 of 2013 and upon appearance of the accused and furnishing the copies under Section 207 of Cr.P.C, the case was committed to the learned Principal Sessions Court, Krishnagiri. Upon committal, the case was taken on file in S.C.No.19 of 2014 and was made over to the Trial Court.
7.The Trial Court after considering the material on records, framed the charges for the offenses under Section 498 A of IPC, and Section 304(B) https://www.mhc.tn.gov.in/judis 4/42 Crl.A.No.428 of 2019 and Crl.A.No.502 of 2019 of IPC, r/w Section 34 of IPC, as against all the three accused. Upon being questioned, the accused denied the charges and stood trial.
8.To bring home the charges, the prosecution examined P.W.1 to P.W.15 and marked exhibits P1 to P13. The de-facto complainant/one Muniappan, was examined as P.W.1; One Saroja, the mother of the deceased was examined as P.W.2; One Srinath, brother of the deceased was examined as P.W.3, but, was treated as hostile. One Babu, who is another brother of the deceased, was examined as P.W.4; One Marappan, a common relative, who was the instrumental to the marriage proposal of the deceased and the third accused, was examined as P.W.5; One Purushothman, who was the neighbour of the deceased, was examined as P.W.6; One Divya, who is also one of the neighbours, who turned hostile, was examined as P.W.7; One Anbalagan, who stood as witness for identifying the dead body of the victim and for taking out the jewels from the body of the victim by Mahazar, was examined as P.W.8; One V.Thimmarayan, Village Administrative Officer, who was the witness of the Observation Mahazar, examined as P.W.9; One Sankar, the Photographer was examined as P.W.10; One Lavanya, the doctor, who conducted the https://www.mhc.tn.gov.in/judis 5/42 Crl.A.No.428 of 2019 and Crl.A.No.502 of 2019 postmortem, was examined as P.W.11; One Praveen P.Naiyar, the Revenue Divisional Officer, who conducted enquiry and submitted the report, as P.W.12; One Murali, the Inspector of Police, who registered the First Information Report, as P.W.13; One P.Vijayakumar, the Investigation Officer, who conducted a part of investigation, as P.W.14; and One Gopi, who conducted remaining part of the investigation and filed the alteration reports and the charge sheet, as P.W.15.
9.On behalf of the prosecution, the complaint of P.W.1 was marked as Ex.P-1; the Observation Mahazar was marked as Ex.P-2; the Seizure Mahazar was marked as Ex.P-3; the Postmortem report, was marked as Ex.P-4; the RDO report was marked as Ex.P-5; the First Information Report as Ex.P-6; the Rough Sketch as Ex.P-7; the first alteration report was marked as Ex.P-8; the second alteration report was marked as Ex.P-9; the third alteration report was marked as Ex.P-10; the Special report marked as Ex.P-11; the Form – 91 was marked as Ex.P-12; and the Forensic report marked as Ex.P-13. On behalf of the prosecution, M.O.1 to M.O.6 were also produced.
https://www.mhc.tn.gov.in/judis 6/42 Crl.A.No.428 of 2019 and Crl.A.No.502 of 2019
10.Thereafter, upon questioning about the evidence on record and the incriminating circumstances under Section 313 of the Code of Criminal Procedure, the accused denied the same as false. Thereafter, on behalf of the defense, One Iwin, was examined as D.W.1 and Ex.D-1, a bank statement was marked through D.W.1.
11.After completion of the defense side evidence, the Trial Court proceeded to hear the learned Public Prosecutor appearing on behalf of the prosecution and the learned counsel for the accused, and by a Judgment dated 25.06.2019, acquitted the third accused viz., Ashok Kumar, of all the charges and convicted the accused/A1 & A2, parents of the third accused, and imposed the punishment of rigorous imprisonment for a period of one year Rigorous Improsonment for the offense under Section 498A, and to pay a fine of Rs.5,000/- each, in default to undergo two months rigorous imprisonment. And further imposed rigorous imprisonment for a period of 7 years for the offence under Section 304(B) of IPC, r/w Section 34 of IPC, and to pay a fine of Rs.5,000/- each, in default to undergo six months rigorous imprisonment. The sentences were ordered to run concurrently. Aggrieved by the said conviction and sentence as stated above, https://www.mhc.tn.gov.in/judis 7/42 Crl.A.No.428 of 2019 and Crl.A.No.502 of 2019 Crl.A.No.428 of 2019 is filed by the accused/A1 & A2. Similarly, aggrieved by the same Judgment acquitting the third accused, P.W.1/father of the deceased, filed Crl.A.No.502 of 2019, before this Court.
12.Heard Mr.V.Paarthibhan, learned counsel appearing on behalf of the Accused No. 1 to 3 and Mr.S.Duraisamy, learned counsel appearing for the appellant/P.W.1 in Crl.A.No.502 of 2019 and Mr.S.Vinoth Kumar, learned Government Advocate (Criminal side) appearing for the respondent/police.
13.Mr.V.Paarthibhan, learned counsel representing Accused No. 1 to 3 in both the appeals, taking this Court through evidence on records, would submit that in this case, until the suicide of the victim girl there was no complaint whatsoever. Only after the commission of suicide, for the first time, the complaint was given by P.W.1/father of the deceased. Even in the said complaint, the fact as to the harassment of dowry by asking for 10 cents of land, is not specifically mentioned. The evidence of P.W.1 is unbelievable, because, he also stated that there was burn injury on the cheek of his daughter, which is not supported by medical evidence. From this https://www.mhc.tn.gov.in/judis 8/42 Crl.A.No.428 of 2019 and Crl.A.No.502 of 2019 statement itself, it is clear that P.W.1 making embellishments and speaking untruth, aggrieved by the fact that his daughter committed suicide.
14.Further, the second limb of the allegations is that instead of 10 cents of land that the accused had demanded 1/3rd of share in the entire property, was not even mentioned in the RDO enquiry but, has been made as an improvement for the first time before the Trial Court. He would further submit that P.W.1 & P.W.2 as well as P.W.5 have all admitted that they have never stated so, in the investigation before the Investigation Officer. Therefore, he would submit that the said piece of evidence of P.W.1, P.W.2 & P.W.5 are contradictions and it is an improvement and it should not be believed by this Court. He would further submit that it may be seen that 10 cents of land, which was agreed to be given by P.W.1, was an ancestral land in their Village. As a matter of fact, the positive evidence on record in this case, is that the third accused was employed abroad initially for the training period of six months and during that period he has been sending money to the deceased wife, even when she was residing at her parents house. It is an admitted fact on record that he has sent money on three occasions as of Rs.12,000/-, Rs.40,000/- and Rs.5,000/- and he had also sent a sum of https://www.mhc.tn.gov.in/judis 9/42 Crl.A.No.428 of 2019 and Crl.A.No.502 of 2019 Rs.20,000/- to his brother-in-law, which is also proved by the bank statement. Moreover, considering the money sent by the third accused, it is unbelievable that the parents of the third accused and the third accused demanded the 10 cents of land, which was not even worth the money sent by the third accused. Therefore, he would submit that there was neither any necessity, nor there is any positive evidence on record to pin point that the appellants/accused demanded dowry. Much less there is no evidence on record that the said demand was the proximate cause for the suicide of the victim and therefore, he would further submit that the offense under Section 304(B) of IPC, is not made out as against all the three accused. Further, he contended that the Trial Court had acquitted the third accused, but, for the very same charges the accused/A1 & A2 were convicted. Therefore, he would submit that the accused/A1 & A2 also be acquitted for the said charges.
15.As far as the offense under Section 498A of IPC, is concerned, the learned counsel would submit that as far as A2 viz., father-in-law is concerned, there is no clear assertion imputing any specific overt act by him https://www.mhc.tn.gov.in/judis 10/42 Crl.A.No.428 of 2019 and Crl.A.No.502 of 2019 expect making general statement that both the in-laws have harassed the deceased/victim. In that view of the matter, there is no iota of allegations to convict the second accused/father-in-law.
16.As far as the accused/A1 is concerned, the learned counsel would submit that it may be seen from the allegations that she had ill-treated the deceased/victim by asking her go for work, not allowing her to sit on the chair etc, but, these are the allegations normal “wear and tear” and cultural issues between any other mother-in-law and daughter-in-law and it cannot be termed as 'cruelty' as per Section 498A of IPC, so as to cause grave mental trauma to the victim. He would further submit that father-in- law/P.W.1 in his evidence stated that her daughter always told with him that her husband only is of help and support to her and therefore she did not want any confrontation. Therefore, absolutely, there is no evidence as against the third accused also. He would submit that the very fact that the wife had spoken high about the husband would clearly demonstrate that he had not committed any cruelty. Therefore, there is no question of turning the finding of acquittal as to one of guilt in this case. https://www.mhc.tn.gov.in/judis 11/42 Crl.A.No.428 of 2019 and Crl.A.No.502 of 2019
17.Further, he would submit that even before the RDO, all the three accused were present in the enquiry and the incident happened has been narrated. The accused had given plausible explanation for the commission of suicide by the victim. It is stated by them that soon before the incident, the accused/A1 being mother-in-law had admonished the deceased /victim that she did not give appropriate food to the child, when the child is not well. Enraged by the said advice and altercation, the deceased could not control her anger and locked herself inside of the room. It is also pointed out clearly that she was very depressed from the very beginning of marriage as she was unable to go for job. The accused A1 to A3 did not prevent her go for work. Further, P.W.1/father of the deceased, has admitted in his cross- examination only because of the circumstances of the Employer Company, the deceased did not go for work. As matter of fact, the first accused seeing her in a depressed state and picking up quarrel with her for anything and everything, was only constantly advising her to go for work, that is also being taken offensive by the daughter-in-law and made a the complaint to her parents, as if the accused/A1 was forcing her to go for work. These facts clearly demonstrate that the deceased after studying her engineering degree and was unable to go for job or get outside the village, was depressed and https://www.mhc.tn.gov.in/judis 12/42 Crl.A.No.428 of 2019 and Crl.A.No.502 of 2019 getting angry for anything and everything, in a sudden state of anger, had taken the extreme step of committing suicide, for which, she alone had to be blamed and the accused/A1 to A3, are not at all responsible for the same. Therefore, he would submit that when a plausible explanation is proved by thedefense for the commission of the suicide of the victim girl, all the three accused have to be acquitted in toto by this Court.
18.Per contra, Mr.Duraisamy, learned counsel appearing on behalf of the appellant/de-facto complainant would submit that this is the case in which the prosecution has proved that the victim girl had died by way of hanging. The medical evidence viz., Postmortem report and other evidence had also categorically establlish the same. The victim girl died on 21.05.2013 and the marriage took place on 19.11.2011. P.W.1, spoken about the date of the marriage and it is not disputed. Therefore, the unnatural death is within a period of seven years. P.W.1 & P.W.2 have spoken about the fact that all the three accused have been demanding the registration of the 10 cents land. The said fact is mentioned at the earliest point of time, even before the RDO, who conducted the enquiry on the very next day of the death. P.W.5, the independent witness, who is a common relative, who https://www.mhc.tn.gov.in/judis 13/42 Crl.A.No.428 of 2019 and Crl.A.No.502 of 2019 was the instrumental in the marriage proposal between the deceased/victim and the third accused, had categorically stated that constantly all the three accused were demanding the said 10 cents of land. It goes without saying that the demand was made in connection with the marriage and the same falls within the definition of the dowry. Therefore, when there is a demand of dowry which is established in this case on record, and when the unnatural death has been established by the prosecution, and when the same is, within the seven years of marriage, the presumption under Section 113B of the Evidence Act, arises and once the onus of rebuttal of presumption is on the accused, but, the accused have not proved their innocence.
19.On the other hand, it is clearly seen that the victim girl made an SOS call at 9.22 P.M., which is categorically mentioned in the First Information Report and in the RDO enquiry as well as evidence of P.W.1 and P.W.2. Therefore, he would submit that in this case, the demand of dowry is proved. The allegation about the ill-treatment, she was not even allowed to sit on the chair in front of the accused/A1 & A2, especially, when she being an educated girl with a B.E. Degree, is clearly brought on record. The other harassments were also brought on record, therefore, he https://www.mhc.tn.gov.in/judis 14/42 Crl.A.No.428 of 2019 and Crl.A.No.502 of 2019 would submit that both the offenses under Section 498-A as well as Section 304-B read with Section 34 of IPC is proved against all the three accused. Therefore, the Trial Court ought not to have acquitted the third accused alone. Therefore, he would submit that while maintaining the conviction and sentence imposed to the accused/A1 & A2, the third accused also should also be punished for the said offenses.
20.Mr.S.Vinoth Kumar, learned Government Advocate (Criminal side) appearing on behalf of the prosecution, by pointing out the evidence of P.W.5 would submit that he is the independent witness and deposed clearly in respect of the dowry demand. The said demand about the 10 cents of land is clearly mentioned in the RDO report. He would further submit that the evidence of the brothers cannot be said to be hostile in total, they have only spoken about the truth, since one of the brothers has clearly stated that he did not know anything personally. But he has spoken in his evidence that his sister was harassed for dowry by her in-laws. To that extent that P.W.4 evidence is to be taken into account. Similarly, P.W.3/Srinath, who is another brother of the deceased/victim, had categorically stated that by suspecting about the death of his sister, they had given the complaint. https://www.mhc.tn.gov.in/judis 15/42 Crl.A.No.428 of 2019 and Crl.A.No.502 of 2019 Therefore, in this case, the prosecution has proved the charges to the hilt. Therefore, even though the prosecution has not filed any separate appeal as against the third accused, he would support the submissions made on behalf of the learned counsel appearing for the appellant in Crl.A.No.502 of 2019, who prayed for all the three accused to be punished for both the charges.
21.I have considered the rival submissions made on behalf of the either side and perused the material records of this case.
22.At the outset, before proceeding to consider the charges framed for the offenses punishable, it is essential to re-appreciate the entire evidence, which is on record in this case. The wholesome and cumulative consideration of the entire evidence on record, more specifically the evidence of P.W.1, P.W.2, P.W.3, P.W.4, P.W.5 and the report of the RDO as well as the First Information Report and the statements given before the RDO, the following facts are come to light:-
(i) The third accused in this case and the deceased/victim got married on 19.11.2011;
(ii) At that time of marriage, it was promised by P.W.1/father of the https://www.mhc.tn.gov.in/judis 16/42 Crl.A.No.428 of 2019 and Crl.A.No.502 of 2019 deceased that they will give 10 cents of land to the deceased/victim, in connection with the marriage;
(iii) The deceased/victim had spoken to P.W.1 that her in-laws have been demanding 10 cents of land in Anthivadi Village;
(iv) As a matter of fact, it is said that the in-laws were even demanding 1/3rd of the share in the entire properties. Even though there is such a demand, she does not want to complain to anybody or even to conduct Panchayat, because her husband is of help and support to her;
(v) When she came to her parents house during the time of pregnancy, the husband had taken care of her by sending money for her expenses including her medical expenses;
(vi) Thereafter, when the husband had returned, still, they were all living as a joint family along with the accused 1 and 2, in the Village.
(vii) The deceased/victim was disappointed and depressed on account of the fact that firstly she being a B.E graduate, she was unable to join for the job, because, at that time, there was a problem with the offering company and then she got married;
(viii) There was further disappointment, because when her husband was about to take her abroad, she became pregnant and citing the said https://www.mhc.tn.gov.in/judis 17/42 Crl.A.No.428 of 2019 and Crl.A.No.502 of 2019 reason, she was not taken to abroad;
(ix) Further, she was gravely affected on account of the fact that she was not treated well and was treated misogynistically, to the extent that she was not even permitted to sit on chairs, etc, which had hurt her most, being an educated girl;
(x) In the said background, at about 9:00 o'clock, on the fateful day of occurrence i.e., on 21.05. 2019, a quarrel arose between her and the accused. From the earliest statement given before the RDO enquiry, it is evident that either on account of giving food to her own child, or in connection to the same, quarrel erupted between the in-laws and the daughter-in-law. At that time, her husband was stood to the parents side and physically assaulted the deceased. Immediately thereof, she telephoned her father/P.W.1 and informed him about the physical torture, who has deposed to that effect in Court and stated clearly so at the earliest point of time in the complaint itself and the time of the call as 09:22 P.M.;
(xi) P.W.1 has categorically stated that such an SoS call came to him, in the RDO inquiry as well as before the Investigation Officer and before the Court and therefore, it is clear that all the three accused treated her with cruelty by abusing her and also she was physically assaulted by the third https://www.mhc.tn.gov.in/judis 18/42 Crl.A.No.428 of 2019 and Crl.A.No.502 of 2019 accused;
(xii) Enraged by the same, immediately, she locked herself inside the room and hung herself up committed suicide.
23.The above facts clear from the cumulative and wholesome reading of the entire evidence on record, after discording the contradictions and the minor embellishments. In this case, this Court can see that the majority of the statements of all the witnesses, inspires the confidence of this Court, including the part of the statements made by the accused persons before the RDO. Therefore, this Court is able arrive at the finding of the above facts with certainity, beyond any reasonable doubt.
24.In this background, now I have to consider the rival contentions made on behalf of both sides, as to the guilt or otherwise of all the accused persons and if so, under, what provisions. It is useful to extract Section 304(B) of the Indian Penal Code, which reads as follows:
“[304B. Dowry death.-- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances https://www.mhc.tn.gov.in/judis 19/42 Crl.A.No.428 of 2019 and Crl.A.No.502 of 2019 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.] ” And, it is necessary to extract the Section 113B of the Indian Evidence Act, which reads as follows:-
“[113B. 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 purposes of this section, dowry death shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860). ] ” (emphasis supplied)
25.In this regard, the learned counsel appearing on behalf of the de-facto complainant, relied upon the Judgment of the Hon'ble Supreme Court of India, in Shamnsaheb M. Multtani Vs. State of Karnataka1, more 1 (2001) 2 SCC 577 : 2001 SCC (Cri) 358 https://www.mhc.tn.gov.in/judis 20/42 Crl.A.No.428 of 2019 and Crl.A.No.502 of 2019 fully relying upon the paragraphs Nos.27 and 28, which reads 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.”
26.The learned counsel also relied upon the Judgment of the Hon'able https://www.mhc.tn.gov.in/judis 21/42 Crl.A.No.428 of 2019 and Crl.A.No.502 of 2019 Supreme Court of India, in Kans Raj Vs. State of Punjab and Ors. 2, more fully relying upon the paragraphs Nos.15 and 16, which reads 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. In relation to dowry deaths, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be 'soon before death' if any other intervening circumstance showing the non existence of such treatment is not brought on record, before the alleged such treatment and the date of death. It does not, however, mean that such time can be stretched to any period. Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved 2 (2000) 5 SCC 207 : 2000 SCC (Cri) 935 https://www.mhc.tn.gov.in/judis 22/42 Crl.A.No.428 of 2019 and Crl.A.No.502 of 2019 by the prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time which, under the circumstances, be treated as having become stale enough.
16. No presumption under Section 113B of the Evidence Act would be drawn against the accused if it is shown that after the alleged demand, cruelty or harassment the dispute stood resolved and there was no evidence of cruelty, and harassment thereafter.
Mere lapse of some time by itself would not provide to an accused a defence, if the course of conduct relating to cruelty or harassment in connection with the dowry demand is shown to have existed earlier in time not too late and not too stale before the date of death of the woman. The reliance placed by the learned counsel for the respondents on Sham Lal v. State of Haryana [1997 (9) SCC 579] is of no help to them, as in that case the evidence was brought on record to show that attempt had been made to patch up between the two sides for which Panchayat was held in which it was resolved that the deceased would go back to the nuptial home pursuant to which she was taken by the husband to his house. Such a Panchayat was shown to have held about 10 to 15 days prior to the occurrence of the case. There was nothing on record to show that the deceased was either treated with cruelty or harassed with the demand of dowry during the period between her having taken to the nuptial home and her tragic end. Such is not the position in the instant case as the continuous harassment to the deceased is never shown to have settled or resolved.” https://www.mhc.tn.gov.in/judis 23/42 Crl.A.No.428 of 2019 and Crl.A.No.502 of 2019
27.The learned counsel also further relied upon the Judgment of the Hon'ble Supreme Court of India, in Satvir Singh and Ors, Vs. State of Punjab and another3, more fully relying upon the paragraphs Nos.20, 21 and 22 of the said judgment, which reads as follows:-
“20. Prosecution, in a case of offence under Section 304B IPC cannot escape from the burden of proof that the harassment or cruelty was related to the demand for dowry and also that such cruelty or harassment was caused “soon before her death”. The word “dowry” in Section 304B has to be understood as it is defined in Section 2 of the Dowry Prohibition Act, 1961. That definition reads thus:
“2. 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 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 mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies”.
21. Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third is “at any time” after the marriage. The third occasion may appear to be 3 (2001) 8 SCC 633 : 2002 SCC (Cri) 48 https://www.mhc.tn.gov.in/judis 24/42 Crl.A.No.428 of 2019 and Crl.A.No.502 of 2019 an unending period. But the crucial words are “in connection with the marriage of the said parties”. This means that giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties. There can be many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of “dowry”. Hence the dowry mentioned in Section 304B should be any property or valuable security given or agreed to be given in connection with the marriage.
22. It is not enough that harassment or cruelty was caused to the woman with a demand for dowry at some time, if Section 304B is to be invoked. But it should have happened “soon before her death”. The said phrase, no doubt, is an elastic expression and can refer to a period either immediately before her death or within a few days or even a few weeks before it. But the proximity to her death is the pivot indicated by that expression. The legislative object in providing such a radius of time by employing the words “soon before her death” is to emphasise the idea that her death should, in all probabilities, have been the aftermath of such cruelty or harassment. In other words, there should be a perceptible nexus between her death and the dowry related harassment or cruelty inflicted on her. If the interval elapsed between the infliction of such harassment or cruelty and her death is wide the court would be in a position to gauge that in all probabilities the death would not have been the immediate cause of her death. It is hence for the court to decide, on the facts and circumstances of each case, whether the said https://www.mhc.tn.gov.in/judis 25/42 Crl.A.No.428 of 2019 and Crl.A.No.502 of 2019 interval in that particular case was sufficient to snuff its cord from the concept “soon before her death”.”
28.As a matter of fact, apart from the above said Judgments, the Hon'ble Supreme Court of India, had an occasion to consider the ingredients, in respect of the offense under Section 304(B), in the recent Judgment of State of Madhya Pradesh Vs. Jogendra and Ors4, paragraph No.13 of the said Judgment, reads as follows:-
“13. The Latin maxim “Ut res magis valeat quam pereat” i.e. a liberal construction should be put up on written instruments, so as to uphold them, if possible, and carry into effect, the intention of the parties, sums it up. Interpretation of a provision of law that will defeat the very intention of the legislature must be shunned in favour of an interpretation that will promote the object sought to be achieved through the legislation meant to uproot a social evil like dowry demand. In this context, the word “dowry” ought to be ascribed an expansive meaning so as to encompass any demand made on a woman, whether in respect of a property or a valuable security of any nature. When dealing with cases under Section 304-B IPC, a provision legislated to act as a deterrent in the society and curb the heinous crime of dowry demands, the shift in the approach of the courts ought to be from strict to liberal, from constricted to dilated. Any rigid meaning would tend to bring to naught, the real object of the provision. Therefore, a push in the right direction is required to accomplish the task of 4 (2022) 5 SCC 401 https://www.mhc.tn.gov.in/judis 26/42 Crl.A.No.428 of 2019 and Crl.A.No.502 of 2019 eradicating this evil which has become deeply entrenched in our society.”
29.On perusal of the above Judgments and the relevant provisions, it is clear that all that is required for the prosecution is to discharge its initial onus to establish that there was an unnatural death within the seven years of the marriage and that there was an incident relating to demand or harassment relating to dowry “soon before the death”. Once these two factors are established, then the presumption under Section 113 B of the Indian Evidence Act, will come into play and it is thereafter the burden of the accused to disprove that the death happened on account of any other cause.
30.It is in this context, in view of the above findings and all the facts, it is clear that the prosecution has established the unnatural death and the death happened within seven years of the marriage. Even though the learned counsel for the appellants pointed out to the cruelty of the incident which happened at 9:00 PM, against which, the daughter called her father, a reading of the evidence clearly shows that it was a quarrel and physical and mental cruelty happened and that it was not relating to the demand of https://www.mhc.tn.gov.in/judis 27/42 Crl.A.No.428 of 2019 and Crl.A.No.502 of 2019 dowry. Therefore, the evidence on record clearly establishes that the proximate cause which had the live link of the deceased for committing suicide was the incident which happened in the house of the accused around 9:00 P.M., immediately, upon which, the victim rushed inside the room and hung herself up. The said incident related to the the quarrel which arose in the house of the accused and there is no evidence that it was also for the purpose of demand of dowry and the evidence points out that it was relating to some other difference of opinion. Therefore, the prosecution did not discharge its intial onus proving that there was cruelty or harassment realting to demand of dowry soon before death and hence, the presumption under Section 113-B cannot be applied.
31.There are two allegations relating to demand of dowry, of which, the demand relating to 1/3rd share in the entire property was neither mentioned in the First Information Report nor mentioned before the RDO enquiry, and as rightly pointed out by the learned counsel for the accused is an improvement made during the course of the evidence which has been accepted by the Investigation Officer also. Therefore, it is a contradiction and to that extent and the said demand has to be disbelieved. https://www.mhc.tn.gov.in/judis 28/42 Crl.A.No.428 of 2019 and Crl.A.No.502 of 2019
32.As far as the insistence of the 10 cents of land was originally agreed to be given by P.W.1 himself. Even though the agreement was voluntary by the P.W.1, the insistence for registering that 10 cents of land by the in- laws and the husband would still be a demand of 'dowry' as held by the Hon'ble Supreme Court of India, in the case of State of Madhya Pradesh Vs. Jogendra and Ors.( stated Supra).
33. In the above said Judgment of the Hon'ble Supreme Court has clearly held that the definition of dowry that should be given an expansive meaning so as to counter the social evil. From the evidence of PW -1 & 2, corroborated by the independent witness PW-5, it is celar that Accused No. 1 and 2 have been insisting the daughter-in-law to get the 10 cents of land . Therefore, there is a demand for dowry, but that demand should be the proximate cause for the suicide of the victim. In view of the above findings, even though the prosecution has established the demand of dowry, it failed to establish that it was the proximate cause i.e., “soon before the death of the victim”. The harassment or the demand of dowry, which was the resultant cause of the suicide. Therefore, I am of the view that the https://www.mhc.tn.gov.in/judis 29/42 Crl.A.No.428 of 2019 and Crl.A.No.502 of 2019 prosecution has not discharged its onus to bring on record any incident “soon before the death”, which related to the harassment of dowry, therefore, the offense under Section 304(B) of IPC, is not made out, which would be clear even as per the pronouncement of Judgments of the Hon'ble Supreme Court of India, quoted above. Therefore, I am of the view that the finding of guilt by the Trial Court for the offense under Section 304(B) of IPC, even in respect of the accused /A1 & A2 is not sustainable. Similarly, the finding of acquittal as against accused/A3 in respect of the charge under Section 304(B) of IPC, cannot be upturned.
34.But, however, in this case, the prosecution has brought on record that there was a demand of dowry by insisting that 10 cents of land should be registered . The same amounts to demand of dowry and is punishable under Section 4 the Dowry Prohibition Act, 1961. Even though there is no specific charge for the offense under Section 4 of Dowry Prohibition Act, and the same being a lesser offense, as all the ingredients being put to the accused and tried in the more serious offense of 304(B) of IPC, I am inclined to hold that even in the absence of the charge all the accused A1 https://www.mhc.tn.gov.in/judis 30/42 Crl.A.No.428 of 2019 and Crl.A.No.502 of 2019 and A2 are liable to be punished for the offense under Section 4 of the Dowry Prohibition Act.
35.Now coming back to the charge under Section 498A of IPC, there is no finding of any fact, which is relatable to the accused No.2/the father- in-law of the deceased/victim. Even the evidence of P.W.1, before the Court is that the third accused had only hit her physically by dashing her head against the Almirah. Therefore, there is no clear cut of overt act or evidence as against the Accused No.2, father-in-law, therefore, the conviction of accused/A2/ father-in-law, for the offense under Section 498A of IPC, upturned.
36.As far as the accused No.1/ mother-in-law is concerned, there is specific allegation that she insisted that the deceased should not even sit in the chair and also, she was nagging the deceased that she did not bring proper articles to the house. The said allegations are coupled with the fact that she was also very much part of the quarrel, which arose for leading to the suicide of the victim. I am of the view that the allegations against the https://www.mhc.tn.gov.in/judis 31/42 Crl.A.No.428 of 2019 and Crl.A.No.502 of 2019 first accused, in respect of the offense under Section 498 A of IPC, is made out.
37.As far as the third accused is concerned, the earliest First Information Report clearly states that the deceased/victim, the daughter of P.W.1 made an SOS call at 9:22 PM and the same is clearly spoken by P.W.1 & P.W.2, before the Court. Besides, the same has also been categorically spoken to in the enquiry of the Revenue Divisional Officer, also. The cumulative consideration of the statements given by the three accused before the RDO, it can be definitely seen that there is something amiss about their statements as to the incident at about 9:00 P.M., in the house of the accused. Because, all the three accused did not uniformly and categorically assert that the child was suffering from chickenpox. There is a variation in respect of the versions given by all three accused. Therefore, in the said contradiction in the statements of the accused A1, A2 and A3 reinforces the call made by the deceased/victim and the statements of P.W.1 & P.W.2 that she was subjected to physical assault by the Accused No. 3, as a result of the quarrel in the house. Even though the accused No.3 had taken good care of the victim on the prior occasions, but, on that day, he had https://www.mhc.tn.gov.in/judis 32/42 Crl.A.No.428 of 2019 and Crl.A.No.502 of 2019 committed cruelty on her, by physically hitting her, therefore, he is liable to be punished for the offense under Section 498A of IPC, and to this extent, the finding of the Trial Court is liable to be upturned.
38.The Trial Court acquitted the third accused by the sole finding in paragraph No.37 of the Judgment, based on the evidence of P.W.1 that her daughter had told him that her husband was help and support to her. It may be true that the third accused/husband was behaving properly with the wife, but, on the sole basis of the said statement, the accused No.3 cannot be acquitted from the charge. Especially, subsequently, on the date of occurrence, when he was said to have hit the victim, which further lead the victim to rush into the room to take the extreme step of committing suicide. Therefore, the Trial Court has not even given proper finding in respect of the complexity of the accused No.3 and not even applied its mind on the various pieces of evidence on record available as against the accused No.3. Therefore, the finding of the acquittal of the third accused is totally unsustainable and is perverse and not a plausible view.
39.Therefore, in view of the above findings, both the appeals in https://www.mhc.tn.gov.in/judis 33/42 Crl.A.No.428 of 2019 and Crl.A.No.502 of 2019 Crl.A.No.428 of 2019 and Crl.A.No.502 of 2019 are partly allowed on the following terms:-
(i) The first appellant in Crl.A.No.428 of 2019 and Accused No. 1is acquitted of the offense under Section 304(B) of IPC, and she is convicted for the lesser offense under Section 4 of the Dowry Prohibition Act and further her conviction is under Section 498A of IPC is upheld.
(ii) The second appellant in Crl.A.No.428 of 2019 and Accused No. 2 is acquitted for the offense under Section 304(B) of IPC, and he is convicted for the offense under Section 4 of the Dowry Prohibition Act, 1961.
(iii) The second respondent in Crl.A.No.502 of 2019 and Accused No. 3 is convicted for the offense under Section 498A of IPC.
40.Since the third accused/A3 acquitted in toto by the Trial Court, the appeal against the acquittal is allowed by this Court, and it is necessary to be question him on the quantum of sentence. Therefore, the first respondent/Police is directed to secure the third accused/A3, and produce him before this Court for hearing on question of sentence on 18.07.2022.
41.Since the matter is adjourned for questioning the third accused on https://www.mhc.tn.gov.in/judis 34/42 Crl.A.No.428 of 2019 and Crl.A.No.502 of 2019 the quantum of sentence, the sentence in respect of the first and second accused also will be imposed and pronounced on the same day i.e., 18.07.2022 after hearing the learned Counsel for the Accused No.1 to 3.
42. Call on 18.07.2022.
13.07.2022 (1/2) Index : Yes/No Speaking/Non-Speaking Order klt D.BHARATHA CHAKRAVARTHY, J., klt To
1.The Sessions Court, Fast Track Mahalir Court, Krishnagiri
2.The Public Prosecutor, High Court of Madras.
3.The Inspector of Police, SIPCOT Police Station, Krishnagiri District.
Crl.A.No.428 fo 2019 and Crl.A.No.502 of 2019 https://www.mhc.tn.gov.in/judis 35/42 Crl.A.No.428 of 2019 and Crl.A.No.502 of 2019 13.07.2022 (1/2) https://www.mhc.tn.gov.in/judis 36/42 Crl.A.No.428 of 2019 and Crl.A.No.502 of 2019 Crl.A.Nos.428 & 502 of 2019 D.BHARATHA CHAKRAVARTHY. J., Today, the third accused / husband, is present before this Court.
2.This Court questioned the husband on the question of sentence. He would submit that, as a matter of fact, on the day of occurrence, he did not actually physically hit the deceased and the deceased was in severe stress as she being a B.E. graduate with distinction, was unable to join the job because the Sathyam Computer Company, which offered the job, ran into problems before she could join and therefore, she had become depressed. He would further add that whenever she went to her parent's home, she could not share her stress and strain as her parents also felt the burden since they had three children and therefore, only in this situation she committed suicide.
3.He would further submit that it is not correct to say that he left her in the village. As a matter of fact, he brought the whole family to Hosur and made an attempt that she should live happily. He would submit that he is https://www.mhc.tn.gov.in/judis 37/42 Crl.A.No.428 of 2019 and Crl.A.No.502 of 2019 only taking care of the child, which is now aged nine years old and is studying 5th Std in Sri Chaithanya Techno School in Coimbatore and therefore, if he himself as well as his parents are sentenced to jail, there will be nobody to take care of the child. He would submit that he tried his level best to keep his wife happy in the matrimonial home and therefore, prays for lesser sentence.
4.I have given my careful consideration and I have taken the following facts for consideration, while deciding the question of sentence.
5.I have already found on facts that the wife committed suicide cumulatively for multiple reasons as she, being a B.E. graduate and unable to go for work, she was under grave depression. The next factor is the nature of the dowry demand, which though is a punishable offence, the mitigating factor is that it was voluntarily agreed upon giving ten cents of land at the time of marriage by P.W.1. The other acts of cruelty alleged are that misogynistically, she was not permitted to sit on the chair which definitely amounts to offence of cruelty, but, the socio cultural background of the parties have also to be taken into account while awarding appropriate https://www.mhc.tn.gov.in/judis 38/42 Crl.A.No.428 of 2019 and Crl.A.No.502 of 2019 punishment. It is also seen that there is one factor which is on record on favour of the first accused / mother-in-law that, she was insisting the victim to go to work, to that extent, there is some good behavior on her part also. As a matter of fact, the third accused was also taking care of the wife even by sending money when she was in her parent's home etc, and therefore, all these factors have to be cumulatively taken into account while sentencing the accused.
6.At least one member of the family have to be outside to take care of the child and of all the three accused, the second accused / father-in-law is presently with less allegation against him and he has already undergone 41 days imprisonment in this case.
7.In view of the above, the accused one to three in this case are sentenced as follows:-
(i) The first accused namely, Munirathna / mother-in-law, is sentenced to undergo simple imprisonment for a period of six months for the offence under Section 4 of the Dowry Prohibition Act and for the offence under Section 498A of https://www.mhc.tn.gov.in/judis 39/42 Crl.A.No.428 of 2019 and Crl.A.No.502 of 2019 the Indian Penal Code and shall pay a fine of Rs.5,000/- for the offence under Section 4 of the Dowry Prohibition Act, and also to pay a fine of Rs.5,000/- for the offences under Section 498A of IPC. The first accused is entitled to adjust the fine amount already paid by her;
(ii) The second accused namely, Jayaraman / father-in-law, who is convicted for the offence under Section 4 of the Dowry Prohibition Act is imposed with the sentence of the period, already undergone by him and by a fine of Rs.5,000/-
. The second accused is entitled to adjust the said amount of Rs.5,000/- already paid by him before the Trial Court;
(iii) The third accused / Ashok Kumar, is sentenced to undergo simple imprisonment for a period of six months for the offence under Section 498A of the Indian Penal Code and to pay a fine of Rs.5,000/- and in default, to undergo simple imprisonment for a further period of one month. https://www.mhc.tn.gov.in/judis 40/42 Crl.A.No.428 of 2019 and Crl.A.No.502 of 2019
(iv) All the accused are given eight weeks' time from today to surrender before the Trial Court and undergo the remaining period of sentence. The sentences in respect of the first accused shall run concurrently.
18.07.2022 (2/2) drm https://www.mhc.tn.gov.in/judis 41/42 Crl.A.No.428 of 2019 and Crl.A.No.502 of 2019 D.BHARATHA CHAKRAVARTHY. J., drm Crl.A.Nos.428 & 502 of 2019 18.07.2022 (2/2) https://www.mhc.tn.gov.in/judis 42/42