JUDGMENT
1. The IInd Additional Metropolitan Sessions Judge, Hyderabad, framed three charges against A-1 to A-3 for the offences punishable under sections 306 and 498-A, IPC and S. 4, Dowry Prohibition Act, 1961. The learned Judge found the accused not guilty of the offence under S. 4, Dowry Prohibition Act. He, however, found the accused guilty of the offences under sections 306 and 498-A, I.P.C. and sentenced them to undergo rigorous imprisonment for seven years and also to pay a fine of Rs. 200/- in default to undergo rigorous imprisonment for two months for the offence under S. 306, I.P.C. He also sentenced the accused to undergo rigorous imprisonment for six months and also to pay a fine of Rs. 100/- in default to undergo rigorous imprisonment for one month for the offence under S. 498-A I.P.C. Both the sentences were directed to run concurrently. Against that, A-1 to A-3 filed an appeal in this court. This Court allowed the appeal by order dt. 27-10-1987 and set aside the conviction and the sentences passed against the accused. The Supreme Court by order dated 11-7-1988 in Crl. Appeal No. 349/88 set aside the order of this court by holding that the matter requires to be remitted back to this court for a fresh decision in accordance with law, after hearing both the parties, PW-2, the father of the deceased who filed the appeal in the Supreme Court, also filed an application and submitted his written arguments.
2. A-1 married the deceased Rajyalakshmi on 27-5-1983. A-2 is the father and A-3 is the mother of A-1. PW-2 is the father and PW-3 is the mother of the deceased. PW-4 is the paternal grandmother and PW-5 is the paternal uncle of the deceased.
3. The prosecution case is that the deceased Rajyalakshmi committed suicide on 6th April, 1984 at about 6.00 p.m. in the bathroom in the house bearing No. 1-7-513/1/12 situated at Gemini Colony, Musheerabad, Hyderabad. A-1 to A-3 ill-treated and harassed her continuously for not getting the T.V. set and a gold ring of one tola from her parents. Due to that conduct of A-1 to A-3, the deceased Rajyalakshmi, aged about 19 years, was compelled to commit suicide by setting herself on fire by pouring kerosene on her body. It is the further case of the prosecution that the accused took a bajaj chetak scooter, a steel almyrah, a wrist watch, steel utensils etc., 6 tolas of gold and a cash of Rs. 2,116/- as dowry at the time of the marriage of A-1 with Rajyalakshmi.
4. The prosecution has examined 11 witnesses got marked Exs.P-1 to P-10. The accused examined one witness and got marked one document.
5. The case of the accused is one of total denial. A-1 and A-2, father and son, are working in the Excise Department as Constables. PWs. 2 and 3 are having three daughters and two sons. The eldest daughter is the deceased Rajyalakshmi and she studied up to Xth Class. A-2 and A-3 are having four sons and A-1 is their eldest son. PWs. 2 to 5 are residing in Bagh Amberpet. The accused are residing in Gemini Colony and both are within the Hyderabad Municipal Corporation limits.
6. The case of the prosecution as sought to be placed before the court through oral and documentary evidence is as follows : After due negotiations by the elders, the marriage between A-1, an Excise Constable and the deceased Rajyalakshmi, was performed on 27-5-1983. The accused demanded a scooter, 6 tolas of gold, a wrist watch, an almyrah and a cash of Rs. 2,116/- as dowry. PW-2 the father of the deceased who is a motor mechanic, gave all the articles, cash and cloths as demanded by the accused. The marriage was consummated. Both A-1 and the deceased started living in the house of the accused. The accused constructed a house in Gemini Colony and they shifted to that house during the year 1983.
7. PW-3 mother of the deceased went to the house of the accused to take her daughter and son-in-law to their house for Deepavali festival of 1983. A-1 and A-3 asked PW-3 that they should give a T.V. set and one tola of gold to A-1. PW-3 expressed her inability to meet that demand on the ground that they incurred a good amount of expenditure for the marriage. Then the accused said that they will not send her daughter (deceased) and son-in-law (A-1) to their house for Deepavali. The deceased also told her that her mother-in-law (A-3) was harassing her, demanding her to bring gold and a T.V. set and they are not prepared to send her for the festival unless the demand is met. PW-3 returned back to her house and informed the same to her husband, PW-2. PW-2 then went to the house of the accused and requested them to send Rajyalakshmi and A-1 to their house for the festival. The accused demanded him also for T.V. set and gold. PW-2 expressed his inability to meet their demand. They send the deceased only with PW-2 and did not send A-1. PW-2 made another attempt again and at last on the Deepavali festival day, A-1 came to their house. A-2 and A-3 also came to the house of PW-2 in the evening on that day. New clothes were presented A-1 to A-3 and deceased. PW-2 presented a gold ring weighing about half a tola to A-1.
8. After the Deepavali festival, the deceased was sent to the house of the accused. The accused started ill-treating the deceased, finding fault with her for not bringing the T.V. set and the remaining half a tola of gold and they were also finding fault with her for not properly doing the household work and they put her to starvation on some occasions. PW-3 went to the house of the accused to see her daughter and she requested A-3 not to ill-treat and harass the deceased on their inability to give them the T.V. set and the gold as demanded.
9. Before Sankranthi festival, again PW 3 went to the house of the accused and requested the accused to send the deceased and A-1. The deceased told her that the accused were harassing her and treating her not properly because they did not meet the demand for the T.V. set and the gold. PW-3 returned back and sent her husband PW-2. At the request of PW-2, the deceased was sent to their house two days before the Sankranthi festival. A-1 did not come to their house for the Sankranthi festival. On the next day of the festival, A-1 came to their house and asked them to send the deceased to their house. PW-3 refused to send the deceased Rajyalakshmi and the deceased also told that she will not go because they were abusing and harassing her. A-1 insisted that unless Rajyalakshmi was sent with him he will not again come and take her at all. The deceased was hesitant to go to the house of the accused because she was afraid that A-3 will find fault with her for not returning even on the next day of the festival. PW-2’s brother’s wife Jangamma advised PW-3 to send the deceased and she sent the deceased with reluctance to the house of the accused.
10. The father of PW-2 became seriously ill. The brother of the deceased went to the house of the accused to bring her. The accused did not send her to see her grandfather. On one day the deceased came to their house and saw her grandfather and went back to the house of the accused. Two days afterwards PW-3 went to the house of the accused. Then the deceased told her that A-3 was always finding fault with her and teasing her saying that she did not bring the T.V. set and gold and she is stout and ugly and is not a suitable match to her son. PW-3 requested A-3 not to tease her daughter. The father of PW-2 died and the deceased alone came to see her grandfather and accused did not come. Because of the death of the old man, they did not perform the Ugadi festival in their house.
11. A-1 is addicted to alcohol. On account of excessive drinking, he became sick and was laid up in the house for about two months, staying away from duty. The deceased informed her parents that A-1 was consuming alcohol and falling unconscious sometimes and causing trouble to her.
12. On 6-4-1984 at about 6.00 p.m. PW-1, a resident of Gemini Colony, returned to his house and he was told that the deceased burnt herself and committed suicide. PW-1 went to the house of the accused and saw the dead body of the deceased lying in the bath room of their house and he found A-3 and another lady. The locality people gathered there. While PW-1 was walking away from the house of the accused, A-2 gave his T.V.S. moped to him and requested him to go to the house of the parents of the deceased Rajyalakshmi and inform them. PW-1 went and informed PW-3. PW-3 and others came to the house of the accused by about 8.00 p.m. They saw the dead body of the deceased lying in the bath room and A-3 alone was present in the house and A-1 and A-2 were not found there. PW-3 enquired of A-3 how the death of the deceased occurred. She did not tell anything. Some time later, A-1 and A-2 came one after another to the house.
13. As no report has been given, PW-1 went to the Musheerabad police station and informed PW-10 about the incident at about 7.45 p.m. PW-10, S.I. of Police recorded the statement of PW-1 Ex.P. 2 and registered a case under S. 174 Cr.P.C. PW-10 along with the Inspector of Police, Musheerabad, went to the scene of offence and prepared the panchanama Ex.P-4, in the presence of PW-7 and another. On 7-4-1984 PW-10 conducted inquest over the dead-body of the deceased in the presence of PW-6 and others. Ex.P-5 is the inquest report. After the inquest was over, the dead body was sent for post-mortem examination. PW-9 Asst. Professor of Forensic Medicine, Gandhi Hospital, after due identification, conducted the post-mortem and issued Ex.P-7 post-mortem certificate.
14. PW-10 has not recorded the statements of the witnesses. PW-2 approached the superior officers with an allegation that the investigating officers are not doing any investigation in the case. PW-10 issued notices to PW-2 twice on 20-10-1984 and 29-3-1985. PW-2 though received the notices did not turn up. As the superior officers received complaints, a direction has been given by the authorities to hand over the file to PW-11. PW-11 took up investigation on 16-10-1985 as per the directions of the Asst. Commissioner of Police, Chikkadpalli. He completed the investigation and filed the charge-sheet, for offences punishable under Sections 306 and 498-A IPC and S. 4, Dowry Prohibition Act, 1961.
15. Sri. Padmanabha Reddy, learned counsel for the accused, contended that PWs. 2 to 5 who are father, mother, grandmother and paternal uncle of the deceased are interested and their statements have been recorded 1 1/2 years after the incident and the learned Judge was not justified in accepting their testimony as correct. It is also contended that at the earliest point of time PWs. 2 to 5 have not come forward with the plea of cruelty or the plea of demand for T.V. set gold and the belated version ought not to have been taken into consideration.
16. Having been dissatisfied with the nature of the investigation done by PW-10, PW-2 approached the higher authorities and the higher authorities in turn directed to hand over the case file to PW-11 and the same was accordingly handed over to him on 16-10-1985. It must be noted here that in spite of the notice given by PW-10, PW-2 did not choose to appear before him. The circumstances under which the file was handed over lends more support that the grievance of PWs. 2 to 5 and in particular PW-2 that PW-10 has not done the investigation properly is correct. The irregularities that have been committed by the investigating officers will not come in the way of appreciating the oral testimony of the witnesses.
17. Much stress has been laid by the defence that PW-10 has recorded the statements of the witnesses and they were suppressed and the other statements also which were purported to have been signed by the witnesses have been suppressed. The witnesses in their anxiety that their statements may not be accepted, may state that they have signed the documents. On a reading of the evidence of PWs. 1 to 5. I find that what has been recorded by PW-11 are the statements that have been produced into court. It is true that PW-11 admitted that he has not compared the statements that have been filed into court with the originals and there are mistakes and those mistakes are due to lack of proper translation by PW-11. PW-11 is a Muslim and he does not know Telugu perfectly. PWs. 2 to 5 do not know English. PWs. 3 and 4 are illiterates. The answers elicited in cross-examination about the mistakes in the copies are only a product of lack of correct translation.
18. On the basis of recording of the statements of the witnesses at a later stage, the defence has raised a contention that the witnesses have made up their minds to give a false version. Even though the bride burning cases are on high side, the investigating officers are not diligent enough to take appropriate prompt steps in the investigation of those cases.
19. In Bhagwant Singh v. Commr. of Police, Delhi : the Supreme Court had an occasion to consider the plea of the complainant in W.P. No. 6607/81 dt. 6-5-1983. The deceased became the victim of constant ill treatment by her mother-in-law. On August 9, 1980, ten months after the marriage, the deceased aged 22 years, was found dead of third degree burns from a kerosene fire in the bath room. The complainant contended that the investigating agency did not carry out its statutory duties in a bona fide manner and deliberately withheld the filing of a police report and resorted to delaying the progress of the investigation in order to ensure that no proceedings were taken against the accused in the case. The complainant made attempts to ensure an effective investigation into the case of his daughter’s death and approached in that behalf the higher authorities. The section of law was altered to S. 306 IPC only on May 15, 1981. In that case the contention that the complainant did not co-operative with the police in the investigation or declined to give his statement until April 21, 1981, also was considered and found that the want of confidence in the manner in which the police investigation was being conducted.
20. When the police are not in a position to conduct investigation properly, PW-2 approached the higher authorities and ultimately succeeded in PW-11 being entrusted with the case file. The delay of nearly 1 1/2 years after the commission of the offence in recording the statements in this case is not by itself fatal, in view of the special circumstances that have been brought out. The view taken by the Supreme Court in the above decision also will amply justify me to arrive at the conclusion that the investigation in the beginning was not conducted on the correct lines. PW. 2’s conduct in not approaching PW-10 after receipt of the two notices also indicates that he has no confidence in the manner in which the investigation was being conducted.
21. Padmini Jesudarai, J. of the Madras High Court had an occasion to consider a case where there is a lapse on the part of the police to hold inquest or post mortem in Gowar Chand v. Superintendent of Police, Chingleput 1988 Cri LJ 1399 (Mad). It is also a case of death due to dowry harassment. It was held therein that the failure to register a case immediately at least under S. 174 Cr.P.C. initially the failure to hold inquest, the failure to have the body subjected to post mortem to find out the real cause of death and the failure to register a case at least later, when several petitions have been sent to different authorities, are all lapse which any amount of investigation hereafter done, even by the best of investigation agencies, would not adequately compensate. Under even better circumstances, Pathak, J. (as he then was) in Bhagwan Singh case (supra) speaking for the Supreme Court observed. (Para 18 and 19) :
“The greed for dowry and indeed the dowry system as an institution calls for the severest condemnation …………. Besides this, what is important to point out is that where the death in such cases is due to a crime, the perpetrators of the crime, not infrequently escape from the nemesis of the law, because of inadequate police investigation. It would be of considerable assistance if an appropriately high priority was given to the expeditious investigation of such cases ………….”
While observing like that, the Madras High Court ordered that there should be a fuller and deeper investigation by some other agency having greater facilities for investigation, and the investigation shall be taken up by the C.B. C.I.D. Madras.
22. In this case, following the Supreme Court case, it cannot be held that the entrustment of case to PW-11 about 1-1/2 years after the commission of the offence and his examining the witnesses is not fatal and the statements that have been recorded under those circumstances cannot be said to be fatal circumstances to throw away the prosecution case on that short ground.
23. The accused and PWs. 2 to 5 are distantly related even prior to the marriage of A-1 and the deceased. Thinking that A-1 is a good boy and is employed, PWs. 2 and 3 might have given their daughter in marriage to him. According to PW-2 after the marriage, they came to know that A-1 was addicted to alcohol. and A-1’s brother aged about 19 years also was addicted to alcohol. By appearance, A-1 may have been a good boy at the time of the marriage. But after the marriage, the defects have been noticed by the deceased and her parents also. Merely because the defects have been noticed after the marriage, it does not mean that the defects that have been pointed out by them are not correct. The statements made by PWs. 2 and 3 on that account, i.e. A-1 became sick and did not attend the duty for two months due to heavy drinking remain unchallenged. There is ample corroboration in the evidence of PWs. 2 and 3 about the invitations extended to the deceased and A-1 for Deepavali and Sankranthi festivals and their evidence shows that the accused, in particular A-1 and A-3 demanded the T.V. set and one tola of gold.
24. The motive, in this case, for causing cruelty is on account of the non-fulfilment of the demand so far as the T.V. set and the one tola gold is concerned. 1/2 tola of gold was only given during Deepavali. The bajaj scooter, almyrah and the cash were already given at the time of marriage and the same were returned on the fourth day after the death of the deceased. So far as giving the articles at the time of marriage or the returning of them after the fourth day of the death of the deceased, there is no dispute. It is not the case of PWs. 2 and 3 that part of the dowry amount that has been agreed to was not paid. There is no particular motive for PWs. 2 and 3 to depose falsely on oath, particularly when all the articles that were given at the time of the marriage were returned after the death of the deceased. After the death of the deceased, PWs. 2 to 5 have not participated in the 3rd day or the 10th day ceremonies. So far as the demand for the T.V. set and gold is concerned, there is any amount of corroboration forthcoming from the evidence of PWs. 2 to 5. They are the best persons to speak about the demand. The deceased also has to confide her secrets only to those persons. Under those circumstances, can we say that after the entire articles and the money that were given at the time of marriage here returned soon after the death, PWs. 2 and 5 weave out a false story that there was a demand for the T.V. set and gold and on account of harassment the deceased committed suicide. After the return of the articles, there is no particular reason to have a grouse for PWs. 2 to 5 against A-1 to A-3. In cross-examination of PWs. 2 to 5 also, they could not elicit any answers that a particular motive is there and they are giving false evidence on oath and the demand as spoken to be them is false.
25. A-1 to A-3 have constructed a new house and the house warming ceremony took place during 1983 Dasara. On account of the construction of house, they might have spent all their monies. As they are living in city and as they are Government employees and as they have constructed a house of their own, the possibility of having a desire to have the T.V. set in their house also cannot be ruled out. It is not the affluent circumstances of the family of the husband alone that have to be taken into consideration. The greed of money know no bounds and a person even if affluent can well pressurise and squeeze his ‘in-law’, for getting easy-money, as a bargain to keep his spouse in peace and comfort. Due to failure and reluctance on the part of the wife or in-laws to satisfy the demand for money, the accused tortured the daughter-in-law leading to commit suicide which was the direct result of the accused’s abetment.
26. A-3 was also once a daughter-in-law. For getting that fact that she was also once a daughter-in-law, she gained upperhand as a mother-in-law immediately after the performance of her first son’s (A-1) marriage and she thought it fit to demand money on the ground that they require a T.V. set and one tola of gold. It has become common feature that mother-in-law are playing an important role in instigating their sons or husbands to demand more money. If the demands have not been met, the mothers-in-law start ill-treating and humiliating their daughters-in-law by gestures or by other means which ultimately leads to suicide. A-1 is the only person that was married recently prior to the construction of the house. It is the general custom that for Deepavali and Sankranthi parents-in-law invite the son-in-law and the daughter and give them new clothes and some presents. The quantum of presents and the value of clothes depends upon their financial status. As Deepavali was very nearing and as PW-3 approached to invite the deceased and A-1, the accused made the demands and it finds corroboration from the evidence of PWs. 2 to 5. As 1/2 tola of gold ring was presented for Deepavali instead of one tola of gold ring and the T.V. set and as PWs. 2 and 3 expressed their inability to meet the other demands as they have already incurred a good amount of money on their first daughter’s (deceased) marriage, A-1 and A-3 in particular might have developed a grouse. Having developed the grouse, the possibility of ill-treating the deceased cannot be ruled out. In case of dowry deaths, we cannot have direct evidences or circumstantial evidence. In such cases, the court has to draw the inferences from the set of facts that have been brought out by the prosecution. In dowry death cases, the instances that took place for a long period of seven years have to be considered and the totality of the circumstances has to be considered as a whole. It is the onerous duty of the court to draw inference from such material available before it. The husband or his relatives who have got knowledge about the instances or the cause of the death will not come out as they will be prosecuted. It is only the parents or her relations or friends alone that will come forward to narrate the incidents. The failure to meet the demand and the deceased being stout and ugly as alleged by A-3 might have made them to harass her on one pretext or the other. The conduct exhibited by the accused and as stated by PWs. 2 and 3 in connection with the invitation extended for Deepavali and Sankranthi festivals and the conduct exhibited by the accused at the time of the death of the grandfather of the deceased can be seen with the background of the evidence. The other instances by themselves may not throw light about the cause of the death. The cumulative effect of the incidents spread over for a period from the date of the marriage i.e. 27-5-1983 till the date of death i.e. 6-4-1984 has to be considered. The Legislature intended to take into consideration the incidents for about a period of seven years. If we take into consideration the incidents as narrated by PWs. 2 to 5, there is a ring of truth in their evidence. The irregularities committed by the investigating officers or the omissions pointed out will not enure to the benefit of the accused as nothing have been elicited from those witnesses to discredit their testimony.
27. PW-10 on registering the crime went to the scene of offence and recorded the panchanama. The panchanama Ex.P-4 prepared at the earliest point of time shows that the deceased appear to have burnt for a long time. The entire body became burnt. On seeing the kitchen room closely, it appears that the deceased got burnt in the kitchen itself. Because of the edge of the newspaper under the tins of the bottom shelf containing the cooking materials, the left side of the kitchen got burnt. Outside the door, a festoon of mango leaves got burnt. The thread got snuffed and their two ends were hanging on the sides. Further the kitchen and the edges of the walls of the bath room portions were smoky and black. After getting burnt in that room, the deceased would have gone into the bath room. The observation report shows that the deceased might have been burnt in the kitchen itself and thereafter she went to the bath room. It must be known only to the inmates.
28. PW-1 in his evidence has stated that he returned at about 6.00 p.m. and he came to know that the deceased burnt herself and committed suicide. In the inquest report at column No. 4 it has been mentioned that A-1 saw his wife at about 5.45 p.m. while he was going from his house to Abids. Why he had gone to Abids is not known. Fixing of time at 5.45 p.m. in the inquest report and the version of PW-1 and others that at about 6.00 p.m. the incident took place indicates more favourable that with a view to screen himself, he has taken up the plea that he was not present and left the house at about 5.45 p.m. itself. Even assuming for a moment that what has been stated by him during inquest is correct, still it can be said that there must be some immediate provocation by virtue of his conduct which ultimately made her to commit suicide by 6.00 p.m. In either way by taking into consideration the two possibilities, it can be said that the conduct of A-1 deserves to be tested with reference to the past events.
29. PW-10, for reasons best known to him, has not recorded the statements. Who has made the statements that the deceased was met having menses regularly for the past 6 or 7 months at proper times and she used to have unbearable stomach pain during the time of menses is not known. The doctor who examined also has not stated that she is having some trouble of menses. The suggestion that has been given to PW-3 that she is having stomach pain and on one occasion she attempted to commit suicide by consuming poison is denied by her. Suggestion without basis of proof have no value. No doctor is examined to show that the deceased was suffering with acute stomach pain and that she was being treated. PW-10, without any basis, has mentioned about the irregular menses and stomach pains in the inquest report.
30. In the inquest report at column No. 9, it has been mentioned as under :
“It is learnt that as stated by PW-2 the deceased woman and her mother-in-law are not on good terms.”
At certain times, the investigating officers may spoil the case, but yet they leave some traces which ultimately may give rise to the court to arrive at the right conclusion. When PW-2 has stated that the relation are not good, it must be referable to the conduct of the mother-in-law only. No father, whose daughter died, will give a statement that his daughter is bad and her mother-in-law is good. The probable inference that can be drawn is that even at the earliest point of time during inquest, PW-2 expressed about the strained relations at least between A-3 and the deceased. If we take one sentence in the inquest report Ex.P-5 and the subsequent conduct of PW-10 in not making any progress in the investigation and the conduct of PW-2 in approaching the higher authorities, we can draw a reasonable inference that from the very beginning PW-2 and his people are agitating that their daughter committed suicide on account of the demand for the T.V. set and gold. Proper investigation has not been done till PW-11 took the charge. Nothing prevented PWs. 2 to 5 to say that much more amount has been demanded as dowry and that they paid the amount and the same has not been returned. Their statements which confined only to the T.V. set and gold indicated that they are giving a truthful version. The statements that were recorded after 11/2 years cannot be said to be a product of imagination of the witnesses or an afterthought or that they have weaved out a false story against the accused.
31. PW-9 is the doctor that examined the dead body of the deceased. The inquest panchayatdars came to conclusion that the deceased poured kerosene on her body and committed suicide. After inquest, the dead body was sent to PW-9 for ascertaining whether the deceased committed suicide or whether she was murdered. The doctor found superficial burns on the face, neck, chest, abdomen, genitals, back buttocks, both right and left upper extremity, both right and lower extremity except soles of both feet. All the injuries are found to be ante-mortem. Ex.P-7 is the certificate issued by her. The oral evidence, coupled with the medical evidence, does not leave any room for doubt that the death of the deceased is suicidal in nature and it is not either homicidal or accidental.
32. In cases of dowry deaths, generally the evidence will be that of the parents of the deceased or the close relations or friends of the deceased. Not only the events that are known to the persons acquainted with the deceased, but the statement alleged to have been made by the deceased about harassment or ill-treatment or cruelty will also assume importance. Letters, if any, that have been written by the deceased to her relations or friends touching the harassment or cruelty also have got a material bearing.
33. In this connection, we have to consider the scope of S. 32(1), Evidence Act. Their Lordships of the Supreme Court in their recent decision in Sharad v. State of Maharashtra, relying on the leading decision on the question in the case of Pakala Narayana Swamy v. Emperor (1939) 40 Cri LJ 364 : (AIR 1939 PC 47) and the Locus Classicus of their own earlier decision in Hanumant v. State of M.P., and after considering the interpretation of S. 32(1) Abide as made in Ratan Gond v. State of Bihar, have, after their review of these authorities and others, formulated certain proposition as per the clear language of S. 32 ibid., widening the sphere of S. 32, to avoid injustice. The proposition laid down in that S. 32 is an exception to the rule of hearsay, making admissible the statement of a person who dies whether the death is homicide or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to the death.
34. As regards the test of proximity regarding the circumstantial evidence, be it in the form of the statements or the letters written, the material propositions propounded in Sharad v. State of Maharashtra (supra) as relevant for purposes of the present case are reproduced hereunder for proper appreciation : (Para 21)
“The test of proximity cannot be too literally construed and practically reduced to a cut and dried formula of universal application so as to be confined in a strait-jacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the deaths takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be admissible under S. 32. Where the main evidence consists of statements and letter written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of S. 32 and therefore, admissible. The distance of time alone in such cases would not make the statement irrelevant.”
35. Considering the effect of the letters written by the deceased’s sister to the deceased and her husband and the letter written by the brother-in-law to accused No. 2, it was found in Harischandra v. State of M.P., 1987 Cri LJ 1724 (Madh Pra) that the contents in the letter can be taken into account. But however, with regard to the demand of Rs. 5,000/- for purchase of a T.V. set, it was found that the accused could not have stooped so low as to demand a petty amount of Rs. 5,000/- for purchase of a T.V. set under threat to kill the deceased if the demand was not met. The financial status of the accused in that case has been mainly taken into consideration.
36. In each and every case, we have to consider the status of the parties, the conduct of the parties and the strained relation and the event that took place from the date of the marriage till the date of the death to arrive at a conclusion whether the demand as such as put forward by the prosecution is correct or not. There is no presumption in law that the relatives are bound to make false statement. But then as it has been observed in Dalip Singh v. State, and Sharad v. State (supra) such person although they would not protect the real culprit, still would naturally have a tendency to exaggerate or add fact even unconsciously making it absolutely necessary for the court to examine their evidence with very great care and caution. In R. Kondaiah v. State of A.P., it has been observed that the evidence of the prosecution witnesses in that case should be accepted, therefor, only if it stands scrutiny with more than ordinary care.
37. If we scrutinise the evidence of PWs. 2 to 5 in this case, they are consistent with regard to the demand about the T.V. set and gold. PWs. 2 to 4 are consistent with regard to the conduct exhibited by the accused in sending the deceased and A-1 for the festivals, i.e., Deepavali and Sankranthi in particular. We cannot expect these witnesses to memorise the dates exactly and we also cannot expect them to give the details of these particulars immediately after the death the deceased to the police. Not giving out the particulars of the events that took place nearly 10 months will not come in the way to accept their testimony. So far as the evidence of PWs. 2 to 5 is concerned, there is absolutely nothing why they should come forward and speak falsehood against the accused in a grave crime like this. There is nothing in their evidence from which we can conclude that they are telling something which really did not happen.
38. Chanchal Kumari v. Union Territory, Chandigarh, is a case of suicide. There, a demand has been made from the daughter-in-law to build a house for her husband. The Supreme Court on considering the evidence found that there is no dependable evidence in regard to the actual abetment. Under those circumstance, the accused were given the benefit of doubt by taking into consideration, the general principle that suspicion however strong cannot take the place of proof.
39. Section 498-A IPC by way of amendment was operative from 25th December 1983. Similarly S. 113-A, Evidence Act, which provides for legal presumption was also effective from the same date i.e. 25-12-1983. The combined reading of the language in S. 498-A IPC read with the legal presumption provided under S. 113-A, Evidence Act, makes it clear that the statutes permit to draw past instances of cruelty by necessary implication. There is a clear intendment by providing presumption as to abetment of suicide by a married woman. For purposes of reference, the relevant section are reproduced below :
“498-A. Husband or relative of husband of a woman subjecting her to cruelty – Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation – For the purpose of this section, “cruelty” means –
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”
Section 113-A (Evidence Act) – Presumption as to abetment of suicide by a married woman –
“When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or any such relative of her husband.”
The explanation added to S. 113-A, Evidence Act, provides the meaning of “cruelty” as in S. 498-A IPC. It appears to be clearly the intention of the Legislature to draw past instances of cruelty within a period of seven years from the date of the marriage of a woman who commits suicide as a result of cruelty. Thus when a period of seven years from the date of marriage is to be considered to raise a legal presumption, it cannot be done without drawing the past instances from the commencement date of the aforesaid provision.
40. Repeated instances are being highlighted in various newspaper in the country. There are also social organisation focusing the attention of public on this issue. To ventilate the grievances about atrocities of newly married brides due to dowry or other such similar demands from their husbands or in-laws, women social workers had taken up the cause in a movement in the country and due to the effective persuasion by social compulsions, S. 498-A IPC and S. 113-A, Evidence Act, have been introduced on 25th December 1983. The aforesaid provisions are obviously intended to cure the existing evil in the society. The evil at many times resulted in atrocities on married women and various acts of cruelty were being practiced. No doubt, there were some provisions available in the Penal Code such as S. 306 IPC but the instances were such which could not come to light due to their occurrence in the house of their in-laws. Naturally, the victims could not take recourse to public authorities to ventilate their grievances. After all, the social condition family traditions etc., prevented the brides to take any recourse to public authorities. They could not even convey the atrocities to their parent. It is therefore to curb this social evil which resulted in atrocities on women that the aforesaid provision are introduced.
41. Looking to the language of the provision under S. 113-A, Evidence Act, a legal presumption has been introduced if a married woman commits suicide within a period of seven year from the date of her marriage. The period of seven years itself is suggestive of the consideration of past period before the consideration of past period before the introduction of this section. Therefore, a plain reading of this provision permits to draw the instances of cruelty even period to the date of commencement of this provision. It is, therefore, permissible for a Court enquiring a case to look into the past conduct prior to the commencement of the amended provision. It clearly authorises the Court to base its conclusion on the past instance of cruelty. The legal presumption provided under this provision clearly includes the past instances of cruelty spread over a period of seven years from the date of marriage of the victim.
42. The language and purport of the provision under S. 498-A IPC introduced by the amendment on 25th December 1983, clearly speaks of past conduct which drive a woman to commit suicide at a later date. The construction of this section clearly discloses that if a cruelty within the meaning of S. 498A IPC committed on a married woman drives her to commit suicide or to cause grave injury or danger to life, limb or health, the person guilty of such wilful conduct is liable for punishment. The act of suicide or causing grave injury or danger to her life is meant as a result to the past events.
43. Fiat Justitia should be the motto of the Court and discovery of truth should be attempted with the help of the evidence adduced. Section 113-A, Evidence Act, casts onerous duty on the court to draw a presumption. The presumption that has been drawn by the court must appeal to judicial conscience. Suspicion however strong cannot take the place of proof. If there is no acceptable evidence, the court also come to a conclusion to convict the accused merely on the ground that it has morally satisfied about the truth of the case. It should be remembered that letting off the guilt without punishment is as much shocking to the public conscience as punishing the accused despite the absence of legal grounds based on legal testimony. Most of such evils follow in the wake of misappreciation or ill-equipment of law. Of course, mathematical precision cannot be claimed by the court in matters like this. But, however, by taking into consideration the spirit and object and the changes circumstances necessitated for introducing S. 113-A Evidence Act, the Court should shed its conservative approach in appreciating cases relating to suicidal deaths of married women or dowry deaths.
44. As discussed above, I am of the view that the trial court has considered the legal effect of the presumption under S. 113A, Evidence Act, read with S. 113-A, Evidence Act, read with S. 498-A IPC and gave a correct finding that the ill-treatment meted to the deceased by her husband and in-laws prior to the date of her death made her to commit suicide. The trial court has not committed any illegality in taking into consideration the events of cruelty as stated by PWs. 2 to 5 and convicted the accused on the basis of legal presumption under S. 113A, Evidence Act. After all, the suffering which the deceased Rajyalakshmi faced were disclosed by her to her mother PW-3. One cannot expect that a newly married bride should go on complaining about her ill-treatment by her husband or in-laws to any outside person. The conduct of the deceased in disclosing her suffering to the nearest and dearest ones is a most natural. It is not the case of the accused that the prosecution witnesses had any axe to grind against them to involve them falsely because the deceased committed suicide.
45. The wilful conduct of the husband in taking liquor almost daily despite the constant protest by his wife and his habit of coming home late at night does not fulfil the essential ingredients of ‘cruelty’ as defined in S. 498A IPC. The first requisite for attracting the presumption under S. 113-A, Evidence Act, is that it must be proved that the wife was subjected to cruelty as defined in S. 498-A IPC. Taking drink and coming late home much against the will of the wife may not, per se, amount to cruelty, but the acts coupled with beating and demanding dowry and harassment to bring money clearly attracts the terms “cruelty” as defined in S. 498-A IPC. In this case also, the evidence of PWs. 2 and 3 reveals that they came to know that A-1 was addicted to alcohol and the ill-treatment was started on account of their failure to fulfil the demand for the T.V. set and gold.
46. In all dowry death cases, the standards of appreciation of evidence has to be in the light of evidence has to be in the light of the provision contained in S. 113-A, Evidence Act. The observations made by the Supreme Court and the reasoning given by the Supreme Court in dowry death cases even much prior to the amendment as reported in Bhagwant Singh case (supra) by Pathak, J. (as he then was) has to be followed.
47. In Surinder Kumar v. State (Delhi Administration) : the accused was convicted under S. 302 IPC in a bride burning case. Natarajan, J. speaking for the Bench found that the dying declaration clearly sets out that the accused was in the habit of ill-treating her and that on the morning in question he had abused her and beat her and on the top of everything he had also poured kerosene over her and set fire to her.
48. Generally after the marriage if the girl happens to be an educated and the parents also are educated; they will write letters and the contents in those letters also will be of safe guide to know the truth or otherwise of the oral evidence let in by the prosecution witnesses. The deceased Rajyalakshmi studied only up to Xth class and she is also residing in Hyderabad and her parents are also residing in Hyderabad and they are not well educated and her mother and grandmother are illiterates. Under those circumstances, we cannot expect that she will be in a position to write any letters to her parents. It is only the oral testimony alone that has to be taken into consideration.
49. In Chanchal Kumari v. Union Territory Chandigarh, the Supreme Court considered a letter written by the deceased to her husband. That letter was found to be almost a love letter and in that letter there is no trace that she was being harassed, or teased by her in-laws. With that background in view, the delay of 1 1/2 months in narrating the incident for the first time has been found to be not convincing and the Supreme Court allowed the appeal.
50. Section 113-A, Evidence Act and S. 498-A IPC have come into force in 1983 and the courts are now considering the effect of it. Touching the scope and effect of S. 498-A IPC and S. 113-A, Evidence Act, we are having the following cases – Vasanta v. State of Maharashtra, 1987 Cri LJ 901 (Bom); Jagdish Chander v. State of Haryana, 1988 Cri LJ 1048 (Punj & Har); Ashok Kumar v. State of Punjab, 1987 Cri LJ 1412 (Punj & Har) and Shyama Devi v. State of W.B. 1987 Cri LJ 1163 (Cal).
51. It is well settled that the prosecution must prove that the wife was subjected to cruelty as defined in S. 489-A IPC. It is the intentional aid and active complicity which forms the gist of the offence and the court can draw a presumption under S. 113-A, Evidence Act. To ignore the past events of cruelty to consider an offence under S. 306 and S. 498-A IPC which takes place would mean to make these provisions nugatory and the object of introducing S. 113-A, Evidence Act, will be defeated.
52. If we closely scrutinise the evidence of PWs. 2 and 3 in particular, the part attributed to A-2 is very little. With regard to demand and ill-treatment, the part attributed to A-1 and A-3 is more. Admittedly A-3 was present at the time of the offence. A-1 left the house, according to him, without any work. DW-1 was not present at the time of the offence. She came subsequently and DW-1 was under the control and influence of the accused as she was a tenant and she is an interested witness, because if she is sent out, she may not be in a position to secure accommodation in the nearby.
53. The prosecution has brought out a case that Rajyalakshmi, the deceased, aged about 19 years, stout and ugly, was subjected to cruelty by A-1 and A-3 in particular. In general, the part played by the father-in-law (A-2) will be less in proportion to that of the mother-in-law (A-3). The first son at that age will generally be under the influence of his mother rather than his father. It must be noted here that even in the evidence of PW-1 he stated that A-2 provided a vehicle and asked him to inform the parents of the deceased about the death. When PW-3 and other came and enquired, A-3 has not revealed any reason. The observation report that the deceased was having cent percent burns shows that it is a case of suicide by the deceased due to the harassment only on account of the non-fulfilment of the demand for the T.V. set and gold. A-3 played a major role with regard to the demand and cruelty and A-1 acted along with his mother. No specific instance in particular has been brought against A-2 even though generally it has been stated by the witnesses. On a closed scrutiny of the evidence, by taking into account the reasonable benefit of doubt and applying the judicial conscience in case of drawing a presumption in the dowry death cases or in case of suicidal deaths by the wives on account of the non-fulfilment of the demands, I find that A-2 must be given the benefit of doubt. The explanation offered by A-1 and A-3 and the evidence of DW-1 is not convincing. The evidence of PWs. 2 to 5 is convincing and can be relied upon. The prosecution has made out a case against A-1 and A-3 for the offences punishable under Sections 306 and 498-A, Penal Code.
54. In the result, the conviction of A-2 for the offences under Ss. 306 and 498-A Penal Code and the sentences imposed against him thereunder are set aside. A-2 is acquitted of all the charges framed against him.
55. The convictions of A-1 and A-3 for the offences under sections 306 and 498-A, Penal Code are confirmed.
56. The Supreme Court had an occasion to consider the imposition of sentence in the case of bride-burning for dowry. Balakrishna Eradi, J. speaking for the Bench in Kailash Kaur v. State of Punjab, observed as follows :
“Whenever a case of gruesome murder of a young wife by the barbaric process of pouring kerosene oil on the body and setting her on fire as the culmination of a long process of physical and mental harassment for extraction of dowry comes before the Court and the offences is brought home to the accused beyond reasonable doubt, it is the duty of the Court to deal with it in most severe and strict manner and award the maximum penalty prescribed by the law in order that it may operate as a deterrent to other persons from committing such antisocial crimes.”
The Supreme Court expressed its regret that the Sessions Judge did not treat the case as a fit case for awarding the maximum penalty under the law and no steps were taken by the State Government before the High Court for enhancement of the sentence. Anti-social crimes, if proved, must be dealt with severely. The sentence loses its efficiency as deterrent sentence, if it is too lenient.
57. Considering the findings and the reasoning given by me, I feel deterrent sentence is called for as the young lady was compelled to commit suicide on account of the harassment made by her husband (A-1) and mother-in-law (A-3). The sentence of seven years rigorous imprisonment imposed against A-1 and A-3 for the offence under S. 306, Penal Code, is reduced to five years rigorous imprisonment, while retaining the fine amount of Rs. 200/-. The sentence imposed against A-1 and A-3 for the offence under S. 498-A, Penal Code, is confirmed.
The sentences are directed to run concurrently.
58. The appeal is allowed so far as A-2 is concerned and is dismissed so far as A-1 and A-3 are concerned.
59. Order accordingly.