IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 348 of 2001(B)
1. ANI
... Petitioner
Vs
1. STATE
... Respondent
For Petitioner :SRI.PIRAPPANCODE V.SREEDHARAN NAIR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.GIRI
Dated :12/03/2009
O R D E R
V.GIRI, J.
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Crl.A.No.348 of 2001
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Dated this the 12th day of March, 2009.
JUDGMENT
The first accused in S.C.No.314/96 on the files of
the 2nd Additional Sessions Court, Thiruvananthapuram, is the
appellant herein.
2. The first accused was prosecuted for the offences
punishable under Sections 304(B) and 498(A) read with Section
34 of the Indian Penal Code {for short “the Code”}. The 2nd
accused, the mother of the first accused, who was prosecuted
along with the first accused, was found not guilty and was
acquitted. Her acquittal has become final.
3. The first accused/appellant was convicted for
the offence under Section 304(B) as also under Section 498(A)
of the Code. He was sentenced to undergo rigorous
imprisonment for a period of 7 years for the offence under
Section 304(B); but no separate sentence was awarded under
Section 498(A), though he was convicted for the said offence
also.
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4. The case of the prosecution, in brief, is that on
3.9.1992, the first accused married Pushpam, the sister of
PW.1 at the Keezharoor St. Peter’s Church. For the marriage,
4 sovereigns of gold ornaments and Rs.10,000/- were agreed to
be given. Gold was given. Cash could not be paid and
therefore, 15 cents of property was conveyed under Ext.P2
document in the joint names of Pushpam and the 1st accused.
Pushpam was constantly harassed by the 1st accused for money.
While so, on 5.9.1994 Pushpam committed suicide by jumping
into the well situated in the family house of accused 1 and 2.
Therefore, it was alleged that the accused have committed
offences under Sections 304(B) and 498(A) read with Section 34
of the Code.
5. First information statement was given by CW.1,
at about 9 AM on 6.9.1994 (CW.1 could not be examined
because he passed away before trial). PW.1 is the mother of
the deceased. PW.2 is the sister-in-law of the deceased.
PW.3 is an attester to Ext.P3 mahazar. PW.4 is a Priest who
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solemnised the marriage of Pushpam and the 1st accused.
PW.5 is a neighbour of Pushpam and the 1st accused. PW.6 is
an attester to Ext.P6 inquest report. PW.7 is the Fire Station
Officer, who had played a vital role in the retrieval of the body
of Pushpam from the well. PW.8 is another neighbour of the
1st accused and PW.9 is the doctor who issued Ext.P8 post
mortem certificate. PW.10 is the Tahsildar and PW.11 is the
Village Officer, who were examined to prove the inquest and
PW.12 had recorded the first information statement. PW.13 is
the Investigating Officer.
6. PW.1 deposed that there was a demand for 4
sovereigns of gold and Rs.10,000/- at the time of engagement
between Pushpam and 1st accused. The marriage was
solemnised on 3.9.1992. A child was born and the child was 9
months’ old when Pushpam died. Though Pushpam was
generally seen happy, it was noticed that Pushpam was
conveying the demand of Rs.10,000/- whenever she came
home and she was then found gloomy. She was brought to her
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mother’s house viz., PW.1’s house, by the first accused about
two months prior to her death. She was asked to stay there
for four days. Pushpam told PW.1 that there was a constant
demand for dowry. She cried when she narrated the same.
There was no sufficient clarity whether there was any
mediation at that point of time. It has come out that Pushpam
was brought back by the 1st accused to his house about 4/5
days later. She did not say that she came across any other ill-
treatment being meted out to Pushpam by the 1st accused.
7. PW.2, the sister-in-law, also spoke about the
demand for Rs.10,000/-, stated to have been made on
Pushpam, by her husband. Both Pws.1 and 2 speak about the
demand for Rs.10,000/-, which originated at the time of
marriage and which can, therefore, be treated as a demand for
dowry. Both of them speak about the conveyance of 15 cents
of property, which at the time of deposition, could be valued
at Rs.3000/- to Rs.5000/- per cent, having been conveyed in
the joint names of Pushpam and 1st accused. One of the
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contentions that was taken up on behalf of the accused is that
the alleged demand of Rs.10,000/- does not seem to be
believable because, according to Pws.1 and 2, the total
demand was for 4 sovereigns of gold and Rs.10,000/- in cash
and if a property having more value than Rs.10,000/- had been
conveyed, then there would not have been a demand for a
lesser sum of Rs.10,000/-, which if paid would have resulted in
the property being re-conveyed to PW.1. But Pws.1 and 2 have
been consistent in their version about Pushpam coming to her
house two months prior to her death and narrating the demand
for Rs.10,000/-. Both of them said that 4/5 days thereafter 1st
accused came to their house and took her back.
8. There is also the evidence of PW.5, a neighbour
and a retired Headmaster and a senior citizen aged 74. No
motives have been attributed or suggested against him. He
also deposed that though Pushpam was otherwise found to be
happy, he had also sometimes found her to be sad and he
stated about the demand for dowry being made by the 1st
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accused. This version was corroborated by Pws.1 and 2. It is
also stated that the first information statement was given by
CW.1, the brother of the deceased on the following day.
Neither the accused nor any one in the family had given the
first information statement. PW.7 is another neighbour of
Pushpam and 1st accused. Though he was declared hostile, he
stated that he had heard a sound on 5.9.1994 and having
rushed to the spot, he found accused 1 and 2 in tears crying
aloud that Pushpam had just jumped into the well. The case
of Pushpam committing suicide was found established by the
court below. On a re-appreciation of the evidence, I am in
complete agreement as regards the manner of death of
Pushpam.
9. I am also in agreement with the findings of the
court below that the accused had made demand for dowry with
Pushpam and that Pushpam had been taken to her mother’s
house and left there for about 4/5 days. But, I also take note
of the fact that even going by the evidence of Pws.1 and 2,
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Pushpam had not shown any reluctance in joining her husband
when he came to her house. PW.1 has said that generally she
found her daughter happy with her husband. But, there was a
demand for dowry and the said demand as such is spoken to by
Pws.1 and 2 and corroborated by PW.5.
10. There is yet another aspect, which has to be
taken note of. PW.8 the doctor has deposed that out of the 13
injuries, which were found on the body of the deceased,
injuries 7, 8, 9 and 10 contusions, which were found to be blue
in colour, could have happened on account of a contact with
the blunt instrument prior to the fall into the well and the
consequent drowning, which led to the death of the deceased.
The said wounds, which were blue in colour, were on the left
shoulder, wrist, and left palm. There was no reasonable
explanation offered by the accused as to how those injuries
could have been detected on the body of the deceased. It is
not possible to conclude that those injuries were caused due to
the fall, which had immediately preceded the drowning.
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Those wounds could have been inflicted well prior to the fall,
which had led to the death of the deceased. No doubt, there
is no clinching circumstance to show that Pushpam had been
subjected to physical harassment and Pws.1 and 2 also do not
depose that Pushpam had told that she was being beaten by
her husband. There is a vague statement by PW.2 that
Pushpam had told her that a demand for dowry is sometimes
accompanied by beating as well. This answer is given at the
time of cross-examination. But the time when this was
conveyed to her by Pushpam and whether this was pursued as
such is not spoken to by PW.2. PW.1, the mother does not say
anything about Pushpam having been subjected to any such
physical harassment or any such version being conveyed by
Pushpam. On an over all re-appreciation of the evidence, I am
of the view that Pushpam was subjected to repeated demands
of dowry and she was being harassed in that line. That the
demands were being made by the husband-1st accused is also
clear from the evidence of Pws.1 and 2, corroborated by PW.5.
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Since the 2nd accused has been acquitted and her acquittal has
become final, I refrain from making any comment as to
whether the 2nd accused was responsible for such demand. The
demand for dowry, therefore, being made on Pushpam would
definitely amount to harassment.
11. The crucial question is whether the demand for
dowry so made on Pushpam, was the proximate cause which
led to Pushpam having jumped into the well on the fateful day
of 5.9.1994. The court below had referred to the injuries 7 to
10 in Ext.P8 postmortem certificate to come to the conclusion
that physical harassment which could have been meted out to
Pushpam would have persuaded her to take the ultimate
decision to jump into the well. I am afraid that the
ingredients to make out an offence under Section 304(B) IPC
Pushpam has not been analyzed or appreciated by the court
below correctly. Section 304(B) reads as follows:
“Dowry death: (1) Where the death of a woman is
caused by any burns or bodily injury or occurs otherwise
than under normal circumstances within seven years of
her marriage and it is shown that soon before her death
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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.
12. That the death of Pushpam occurred on
account of the bodily injuries sustained by her, as noted in
Ext.P8 postmortem certificate, is a matter which has been
established beyond doubt. That the death took place within 7
years of marriage is also established. But the crucial link to
make an offence under Section 304(B) of the Code is that
Pushpam must have been subjected to cruelty or harassment
by the 1st accused, soon before her death and that such cruelty
or harassment was in connection with any payment of dowry.
In such circumstances, the death shall be called a “dowry
death”. Is there any evidence, as such, to demonstrate that
Pushpam was subjected to physical harassment or cruelty
immediately before her death and the same was in relation to
the demand of dowry. There is total dearth of evidence in this
regard. It is PW.1, who has spoken to the fact that she had
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gone to Pushpam’s house about 13 days prior to her death. But
PW.2 also does not say that Pushpam had said that she was
subjected to any physical harassment or that she was being
beaten by her husband or by any other inmate of his house in
connection with the demand for dowry. PW.2’s testimony has
been accepted by the court below and at any rate, the
testimony is believable as such. But PW.2 has not spoken that
she had found any marks or injury on Pushpam when she had
come 13 days prior to her death and that Pushpam had stated
that her husband had been regularly beating her with a
demand for dowry. There is no other evidence on record to
show that there had been any fight between them and such
fight between the husband and wife was in relation to the non-
receipt of dowry. In fact, there is total dearth of evidence on
this aspect. If that be so, the crucial ingredients of Section
304(B) of the Code is absent in this case. Pushpam has not,
before her death, stated that she was subjected to cruelty or
harassment in connection with the demand of dowry and such
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an incident has not been established. In fact, let alone
establishing the same beyond reasonable doubt, there does not
seem to be any evidence, attracting the crucial ingredients of
Section 304(B) of the Code. In the circumstances, I am of the
view that the conviction of the 1st accused under Section 304
(B) of the Code is unsustainable.
13. But I am in agreement with the court below
that the 1st accused has committed the offence under Section
498(A) of the Code. The constant demand for dowry with the
wife and denying his company to the wife for the purpose of
dowry are matters, which will constitute physical harassment
within the meaning of Section 498(A) of the Code. Learned
counsel for the appellant submits that there is no acceptable
evidence to show that Pushpam was being subjected to any
physical harassment. The offence under Section 498(A) of the
Code is not dependent on any physical harassment. Cruelty for
the purpose of Section 498(A) would include any willful
conduct, which is likely to drive the woman to commit suicide.
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Pushpam was only 22 years at the time of her death. She had
a 9 month old child. There was no other cause for her, which
would have impelled her to commit suicide. She was aggrieved
by the demand for dowry as spoken to by witnesses. In these
circumstances, I am of the view that the prosecution has
established that the 1st accused is guilty of the offence under
Section 498(A) of the Code.
14. In the circumstances, the 1st accused/appellant
is liable to be convicted for the offence under Section 498(A)
of the Code.
15. I heard learned counsel for the appellant/1st
accused and learned Public Prosecutor on the question of
sentence as well.
16. The court below had not awarded any separate
sentence for the offence under Section 498(A) of the Code.
In circumstances where the court below had sentenced the
appellant to undergo rigorous imprisonment for a period of 7
years under Section 304(B), the court below has not awarded a
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separate sentence under Section 498(A). Now that the
conviction for the offence under Section 304(B) is being set
aside and the conviction under Section 498(A) is being upheld,
it is necessary to impose a separate sentence on the 1st
accused/appellant for the offence under Section 498(A) of the
Code.
17. I take note of the fact that the property having
an extent of 15 cents had been conveyed in favour of the 1st
accused and the deceased as per Ext.P2 document. It has
come out in evidence that the only child of Pushpam and 1st
accused, 9 months old child at the time of the death of
Pushpam, is being looked after by the mother of Pushpam,
PW.1. It seems that the 1st accused has not taken any earnest
steps to look after the child. In the circumstances, I am of the
view that the 1st accused must be sentenced to pay a
reasonably high amount as fine and the said fine amount must
be paid to the only child of the deceased, who is now being
looked after by PW.1, as compensation under Section 357.
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In the result, the appeal is allowed in part. The
conviction and sentence imposed on the appellant/1st accused
under Section 304(B) of the Code is set aside. The conviction
of the 1st accused for the offence under Section 498(A) of the
Code is affirmed. The appellant/1st accused is sentenced to
undergo rigorous imprisonment for a period of 9 months. He is
also directed to pay a fine of Rs.50,000/-. The fine amount
shall be deposited within three months from today. If the fine
amount is not paid, he shall undergo simple imprisonment for a
further period of 6 months. The fine amount, if deposited,
shall be handed over to the child of Pushpam and the 1st
accused, who is now a minor and in the custody of PW.1, by
depositing it in the name of the minor in a Nationalized Bank.
The child would be entitled to withdraw the said amount only
when she becomes a major. It is made clear that if the fine
amount is deposited, such deposit will have no impact on the
liability of the 1st accused for maintaining his daughter. This
direction to pay compensation to the child is only imposed
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under Section 357(3) of the Code of Criminal Procedure and
the Family Court, if called upon to adjudicate the liability of
the 1st accused for maintenance, shall do so, regardless of the
direction issued hereunder to see that the fine amount
deposited by the 1st accused is paid over to the child as
compensation.
Sd/-
(V.GIRI)
JUDGE
sk/
//true copy//
P.S. to Judge