Kerala High Court
State Of Kerala vs Mohanan Pillai on 16 January, 1991
Equivalent citations: II(1991)DMC10
JUDGMENT Thomas, J.
1. As Chandrika, a housewife, committed suicide by burning herself, her husband is indicted for "dowry death". Sessions Court, before which he was tried for the offence, acquitted him. This appeal by the State is in challenge of the said order of acquittal.
2. Marriage between the accused and Chandrika, was solemnised on 25.1.1984. Parents of Chandrika gave her fifteen sovereigns of gold in the form of ornaments besides cash worth Rs. 5,000/- at the time of her marriage. Within six months, an item of landed property (fifty cents in extent) was also transferred in her name as party of her dowry Husband and wife and their little child were living together in a building constructed by him. Though they received some more financial help from Chandrika's parents for construction of the house, they incurred some debts before completion of the house construction. So, the couple wanted the landed property to be disposed of to raise funds in order to clear off the liability. They used to visit her parent's house and she left alone occasionally in the house. During then, she made demands to her parents to give further financial assistance.
3. It was on 21-10-1987 that Chandrika committed the fatal act by pouring kerosene on her body and lighting fire. In a trice she was incinerated and was succumbed to extensive bums. Her parents, on receiving information of the death of their daughter, rushed to the house and saw the charred body, first information statement was furnished by her father before Sasthamkotta Police Station around noon on the basis of which an F.I.R. for unnatural death was prepared. However, when investigation progressed the case turned into one for dowry death and the accused was arrested later. Final report was laid on completion of the investigation alleging that he had committed the offence under S. 304B of the Indian Penal Code.
4. Learned Sessions Judge found that the prosecution has failed to prove the offence against the accused. Some letters written by the deceased have been proved in this case. Learned Sessions Judge found that none of the letters shows that accused illtreated or harassed the deceased.
5. Learned Public Prosecutor contended that the lower Court failed to assess the real implications of the letters particularly Exts. P4 and P5 and that the presumption envisaged in S. 113-B of the Evidence Act was not profitably used by the Sessions Judge. According to the Public Prosecutor, the fact that the deceased committed suicide following persistent demands made to her parents to help them with money, is best evidence that she would have been kept under terrific pressure or coercion by her husband to wangle money from her parents. He contended further that burden in this case is on the accused to prove that death was not attributable to any conduct on his part.
6. S. 304B is an innovation made by Parliament in the Indian Penal Code though Act 43 of 1986. The title of the provision is "Dowry Death". It reads thus :
"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".
7. Meaning of the term 'dowry' has to be collected from Dowry Prohibition Act, 1961. S. 2 of the said Act defines 'dowry' as "any property or valuable security given or agreed to be given either directly or indirectly by one party to a marriage to the other party to the marriage, or 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". The range of the definition was so widened by the same legislative exercise by which "dowry death" was included in the Penal Code. Practically everything paid or agreed to be paid or demanded to be paid in connection with marriage has been brought within the purview of the definition.
8. S. 4 of the Dowry Prohibition Act penalises even the demand, directly or indirectly of any dowry. In Indersain v. State (1981 Crl. L.J. 1116 and in Kashi Prasad v. State (1980 BB CJ 612), learned single Judges of the Delhi High Court and Patna High Court respectively adopted a narrow interpretation of the definition of the word 'dowry' and held that a mere demand for dowry if not associated with consent of the person from whom the demand is made would not invite penal consequences. But, the Supreme Court in L.V. Jadhav v. Shankerrav (AIR 1983 S.C. 1219) was disinclined to confine the import of 'dowry' to such narrow contours. Their Lordships observed thus:
"We are of the opinion that having regard to the object of the Act and a liberal construction has to be given to the word 'dowry' used in S. 4 of the Act to mean that any property or valuable security which if consented to be given on the demand being made would become dowry within the meaning of S. 2 of the Act. We are also of the opinion that the object of S. 4 of the Act is to discourage the very demand for property or valuable security as consideration for a marriage between the parties thereto. S. 4 prohibits the demand for 'giving' property or valuable security which demand, if satisfied, would constitute an offence under S. 3 read with S. 2 of the Act. There is no warrant for taking the view that the initial demand for giving of property or valuable security would not constitute an offence and that an offence would take place only when the demand was made again after the party on whom the demand was made agreed to comply with it".
9. The first requirement to constitute the offence of "dowry death" is that death of the wife should have taken place within seven years of her marriage and such death should have occurred otherwise than under normal circumstances. Parliament would have considered the decimated potentiality of the spectre of dowry haunting the female partner beyond a certain period after married life or that heat of dowry issue would cool down in seven years time. Even if death has any nexus with her previous sufferings it cannot be dowry death in case her death was due to some disease. Death due to disease is normal death, even if aggravation of the disease could be attributed to her mental sufferings. The second requirement is that the accused should have subjected the deceased to harassment or cruelty with demand for dowry. The third requirement is that such harassment or cruelty should have been inflicted soon before her death. The words "soon before her death" would mean, that it is not enough if harassment or cruelty was caused to her during the beginning or midperiod of the connubial life. Death must have been the proximate consequence of harassment or cruelty inflicted on the wife. Otherwise the Section will not be attracted.
10. In this case, there is no doubt that death of the deceased occurred within seven years of her marriage, since it is not disputed that marriage between the accused and deceased was solemnised on 25-11-1984. That she died of burn injuries on 21-10-1987 is least disputed by the accused. The first requirement therefore stands satisfied.
11. Legislature, along with introduction of S.304B in the Penal Code made a corresponding change in the law of evidence by introducing a new provision in the Indian Evidence Act relating to the subject, "burden of proof" S. 113B, is the provision so introduced. It reads thus:
"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 connecting with any demand for dowry, the Court shall presume that such person had caused the dowry death".
12. The provision mandates that the Court should proceed with a legal presumption in certain cases that the accused had caused 'dowry death". Such presumption will arise when prosecution establishes that the deceased had been subjected to cruelty or harassment by the accused for or in connection with any demand for dowry. Once the said factum is established, then the burden shift on to the accused to prove that death was on account of some other reason. If he fails to discharge the burden, the Court is entitled to find him guilty of the offence. The presumption envisaged in S. 113-B is not just a factual presumption. The Court cannot obviate or bypass the legal presumption if once prosecution satisfies the Court that the accused caused harassment soon before the death of the deceased. Whenever the Evidence Act directs that the Court shall presume a fact, the Court cannot but regard such fact as proved until it is disproved. But no such presumption arises until the prosecution succeeds in establishing the primary factum that the accused had harassed the deceased soon before her death with demand for dowry.
13. Let us examine whether prosecution has succeeded in establishing the aforesaid primary factum. If we are not satisfied of it, we would refrain from using the presumption against the accused.
14. Ext. P4 is a letter written by the deceased on 19-10-1987 (two days before her death) and addressed to her father (PW. 1) which reached the addressee posthumously. Significance of the said letter is admitted by both sides. It is not disputed that Ext. P4 was in the handwriting of the deceased. Had Ext. P4 revealed expressly that she was subjected to cruelty, no better evidence could have been contemplated by the prosecution to establish the primary factum referred to above since that letter proceeded from the deceased "soon before her death". No doubt Ext. P4 contained request from the deceased to her father to give her money so as to relieve her husband of the humiliation in facing his creditors. The date and place in Ext. P4 are said to be in (;he handwriting of the accused. The address on the envelope was written, according to the prosecution, in the handwriting of the accused himself. Though it is disputed by the defence that the alleged handwriting of the accused had not been proved, we assume, for the sake of argument, that those writings were in the hand of the accused. But Ext. P4, would, at the worst, show that the deceased was very much concerned about the ignominy which would be fall her husband unless some substantial amount was raised to clear off the debt incurred by him for construction of the house. Learned counsel for the accused pointed out that Ext. P4 is only a truncated sheet since one other sheet must have been attrached to it and he contended further that facts favourable to the accused would have been mentioned in the other sheet. Though there is force in the said contention we assume that Ext. P4, as it is presented before us, is the only sheet which was inserted in the envelope. But, Ext. P4 does not even remotely indicate any mental agony caused to her by her husband or her-in-laws either concerning any amount to be obtained from her parents or for any other matter.
15. Learned Public Prosecutor contended that sending Ext. P4 must be taken in conjunction with circumstance that she was in the house of her parents till 17-1U-1987 and that she had written Ext. P4 on 19-10-1987. The conjunction of the two circumstances may indicate that Ext. P4 letter was written by the deceased at the behest of her husband. Even if it was so, it is hardly sufficient to show that she was subjected to any humiliation or harassment much less cruelty by her husband. Nor could the contents of Ext. P5 letter written by the deceased on 26-2-1987 to the accused give any hint that the husband had even misbehaved towards her or uttered one strong word inflicting any mental pain to her. Prosecution has marked Exts. P6 and Ext. P8 written by the deceased on different occasions and Ext. P9 letter written by the deceased's mother (PW.2) to the deceased. None of the letters helps the prosecution to remotely point to any conduct of the accused regarding his treatment towards his wife.
16. The parents of the deceased were examined as PWs. 1 and 2. Both of them could not recount any incident or episode or recollect any word spoken to by the deceased from which even they could draw an inference that the deceased's husband pestered her with demand, for money. PW. 3 a neighbour to the house where the couple lived, on the contrary, paid complements to the cordial and happy life led by the couple, even till the last. Learned Public Prosecutor contended that even if their life was so cordial, there must have been ' some reason why she committed suicide all on a sudden. Vagaries of human mind cannot be fathomed with precision, and one may act on sudden impulses , and suicidal proclivities cannot be explained in many cases. If the accused failed to explain as to what else would have prompted his wife to end her life in a jiffy, it is no premise to presume that she would have chosen to adopt the extreme step as she was subjected to any humiliation or illtreatment by her husband.
17. We agree with the learned Sessions Judge that prosecution has failed to establish that deceased was subjected to cruelty or harassment for any reason, much less for or in connection with any demand for dowry. On failure of prosecution to establish the aforesaid factum, prosecution is disabled from canvassing for invocation of the presumption envisaged in S. 113B of the Evidence Act. We have to confirm the order of acquittal and we do accordingly.
18. However, before parting with this case, we have to fake exception to the comment made by the learned Sessions Judge that "there are circumstances to suggest that there was ill-treatment and harassment on the part of the parents". Reference here is to the parents of the deceased. The only sin (if it is a sin) which would discern from evidence as against the parents of the deceased is that they gave her birth, brought her up and on attainment of her nubile age gave her in marriage to a young man. In a conventional manner they gave her gold ornaments, cash and landed property and again paid her money. Those considerate parents do not deserve to be castigated with such hurting and uncharitable comment as hurled by the trial judge in her judgment. We did not trace out even an iota of evidence indicating that the parents of the deceased are responsible for what their daughter Chandrika did on the fateful day. Of course, it is not an aspect which the prosecution or the accused is concerned with in this case but since her parents were examined as prosecution witnesses (PWs. 1 and 2) we thought it only proper that such unsavoury comment against affectionate and bereaved parents is not retained in judicial pronouncement. Hence we are prompted to make these observations.
19. We dismiss the appeal.