IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 15-11-2002
Coram
The Honourable Mr.Justice M. KARPAGAVINAYAGAM
CRIMINAL APPEAL No.776 of 1995
1. Mahendran
2. Endammal ..Appellants
-Vs-
State rep. by
Inspector of Police,
Gudimangalam Police Station,
Coimbatore District. ..Respondent
Criminal Appeal against the judgment dated 18.9.1995 made in S.C.No.
122 of 1990 on the file of the Court of the Assistant Sessions Judge,
Udumalpet, Coimbatore District.
!For Appellants : Mr. K. Mohan Ram
^For Respondent : Mr. O. Srinath,
Govt. Advocate.
:J U D G M E N T
Mahendran, the son and Endammal, the mother were convicted for the
offences under Section 4 of the Dowry Prohibition Act and under Sections 498-A
and 304-B of I.P.C. and each sentenced to undergo R.I. for ten years.
Challenging the same, they have filed this appeal.
2. The case of the prosecution in brief is as follows: “(a) The
deceased Velumani got married to the first appellant Mahendran in the year
1984. Dr.Natarajan, P.W.1 is her brother working as a Professor in a
Government College. At the time of marriage, 20 sovereigns of gold jewels and
other articles were provided as Seervarisai to her. Out of the wedlock, a
female child was born.
(b) The deceased Velumani was staying with her husband, the first
appellant as well as with her mother-in-law, the second appellant and
father-in-law. Not satisfied with the dowry already provided, the appellants
harassed the deceased asking her to get some more jewel and also to get a
Moped from her parents. At the request of the deceased, P.W.1 and his parents
gave some more jewels and also money for purchase of Moped.
(c) Even then, the torture continued demanding more money and jewels.
Unable to bear the torture, the deceased Velumani lodged a police complaint
against her husband and her mother-in-law, the appellants on 3.9.1985 to
P.W.16 Sub Inspector of Police at Peelamedu Police Station. The complaint is
Ex.P7. Ultimately, both the parties agreed to settle the matter and made an
endorsement of compromise in Ex.P8.
(d) Thereafter, they lived together. Even then, the harassment
continued. About this harassment, the deceased used to complain to P.W.1 and
P.W.4 Ranganathan, her brothers. Even when she was pregnant, she was driven
out from the matrimonial home asking for more jewels. The deceased went to
the house of P.W.1 and after birth of the child, the accused demanded jewels
for the child as well as cash. Due to these happenings, P.W.1’s mother was
hospitalised and ultimately, she died on 17.8.1988. Even after this incident,
the harassment at the hands of the appellants continued.
(e) On 25.9.1988 early morning, the deceased Velumani along with her 9
months old child went to the nearby well and jumped into it for committing
suicide. On hearing the sound, P.W.2 Ramachandran who is residing nearby got
into the well and was able to save only the child, but Velumani got drowned
herself and died. The messages were sent to P.W.1 and P.W.4, the brothers of
Velumani.
(f) P.W.1 and others came to the house of the accused and on seeing
the dead body of the deceased, went and gave the complaint Ex.P1 to P.W.19,
the Deputy Superintendent of Police. The complaint was originally registered
for the offence under Section 174 Cr.P.C. First appellant also gave complaint
and the same was registered under section 17 4 Cr.P.C. Then, P.W.18, the
Executive Magistrate held the inquest and submitted his report Ex.P11. P.W.19
D.S.P. took up further investigation.
(g) In the meantime, D.W.1, the Sub Collector also conducted a
separate enquiry and submitted his report stating that the death was due to
dowry torture. Continuing the investigation, P.W.19 D.S.P. examined other
witnesses. P.W.20 another D.S.P. took up further investigation and filed the
charge sheet against both the accused under Section 4 of the Dowry Prohibition
Act and under Section 498-A I.P.C.”
3. The Sessions Court on considering the materials available on
record, framed the charges for the offences under Section 4 of the Dowry
Prohibition Act and under Sections 498-A and 304-B of I.P.C.
4. On the side of prosecution, P.Ws.1 to 20 were examined, Exs.P1 to
P12 were marked. On the side of defence, D.W.1 was examined and Exs.X1 to X3
were marked.
5. Originally, the trial Court acquitted the accused. Challenging
the same, the first informant P.W.1 Dr.Natarajan filed a revision before this
Court. After hearing the counsel for the parties, this Court on considering
the materials available on record, remitted back the matter for fresh
consideration. After remittal, the accused examined one Srinivasa Naidu as
D.W.2. Ultimately, the trial Court convicted the accused for the offences
under Section 4 of the Dowry Prohibition Act and under Sections 498-A and
304-B of I.P.C.
6. Challenging this conviction, the counsel for the appellants would
strenuously argue that Section 4 of the Dowry Prohibition Act and Section
304-B of I.P.C. would not get attracted, since there is no material that
there was a torture with reference to the demand of dowry, that too soon
before the death. He would further contend that the evidence adduced by
prosecution is not consistent so as to attract the offence under Section 498-A
I.P.C. as well and therefore, the appellants are liable to be acquitted.
7. In order to substantiate his plea, the counsel for the appellants
would take me through the entire evidence and cite the decisions in RAMAIAH
AND OTHERS v. STATE BY KARAMBAKUDI POLICE STATION (1999(1) L.W. (Crl.) 127)
and SHAM LAL v. STATE OF HARYANA (1997(9) S.C.C. 7 59), wherein this Court
as well as the Supreme Court, while dealing with the cases of conviction under
Sections 304-B and 498-A I.P.C., acquitted the accused in respect of Section
304-B I.P.C., though confirmed the conviction under Section 498-A I.P.C.
8. On the other hand, the learned Government Advocate by citing the
following decisions would strenuously contend that the materials available on
record would satisfy the ingredients of all the offences and as such, the
conviction and sentence imposed by the trial Court against both the appellants
are perfectly justified:
1) SHANTI v. STATE OF HARYANA (1991 S.C.C. (Cri)191);
3) VENUGOPAL v. STATE OF KARNATAKA(A.I.R.1999 S.C.146);
4) KANS RAJ v. STATE OF PUNJAB (2000 S.C.C.(Cri)935);
5) SATVIR SINGH v. STATE OF PUNJAB (2002 S.C.C.(Cri)48.
9. I have carefully considered the submissions made by the respective
counsel and gone through the entire records.
10. According to prosecution, the appellants, husband and
mother-in-law respectively, continuously tortured the deceased from the year
of marriage, namely 1984 over dowry demand and even though the complaint was
given by the deceased against both of them regarding dowry torture to the
police in 1995 and the same ended in compromise, the illegal dowry demands
were continued and even after the birth of a female child 9 months ago, both
of them tortured the deceased demanding more cash and jewels as dowry and
unable to bear the torture meted out to her at the hands of the appellants,
the deceased along with her 9 months old female child jumped into a nearby
well for committing suicide and the child alone was rescued alive, but the
deceased died in the well due to drowning.
11. The main plank of the arguments by the counsel for the appellants
is that after the compromise was entered into between the parties as per Ex.P8
on 3.9.1985, there was no dowry torture, according to the witnesses examined
by the prosecution and as such, the offence under Section 304-B I.P.C. is not
made out, in view of the fact that the main ingredient of dowry torture ‘soon
before the death of the deceased’ is conspicuously absent. When the said
ingredient is absent, the presumption under Section 113-B of the Evidence Act
would not arise and as such, the burden never shifts on the accused to rebut
the said presumption and consequently, the accused are liable to be acquitted
for the offence under Section 4 of the Dowry Prohibition Act and under Section
304-B of I.P.C. He would further contend that the demands stated to have been
made by the accused would not be construed to be dowry, as it would not
satisfy the definition of dowry and even assuming that it is a dowry, P.W.5
would state that all the demands were met and as such, there is no material to
show that the torture continued due to the dowry demand.
12. Before dealing with this contention in the light of the materials
available in this case, let us first refer to the relevant provisions in order
to appreciate the said contention.
13. Section 304-B I.P.C. reads as follows:
“304-B. Dowry death.–(1) Where the death of a woman is caused by any
burns or bodily injury or occurs otherwise than under normal circumstances
within seven years of her marriage and it is shown that soon before her death
she was subjected to cruelty or harassment by her husband or any relative of
her husband for, or in connection with, any demand for dowry, such death shall
be called “dowry death”, and such husband or relative shall be deemed to have
caused her death.
Explanation.– For the purposes of this sub-section, “dowry” shall
have the same meaning as in Section 2 of the Dowry Prohibition Act, 19 61.
(2) …. ”
14. The above section lays down that 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 the death of the woman she was subjected to cruelty or harassment by
her husband or his relations for or in connection with any demand for dowry,
such death shall be called “dowry death”. As per the explanation to the
section, the meaning of the dowry has been defined in Section 2 of the Dowry
Prohibition Act. This is as follows:
“2. Definition of “dowry”.– 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 a 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.”
15. Keeping in view the object of these sections, a new Section 113-B
was introduced in the Evidence Act to raise a presumption as to dowry death.
It reads as under:
“113-B. 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 purpose of this section, “dowry death” shall
have the same meaning as in Section 304-B of the Indian Penal Code.”
16. In order to seek a conviction against a person for the offence of
dowry death, the prosecution is obliged to prove the following essentials:
(1) The death of a woman should be caused by burns or bodily injury
or otherwise than under normal circumstances;
(2) Such death should have occurred within seven years of her
marriage;
(3) She must have been subjected to cruelty or harassment by her
husband or any relative of her husband;
(4) Such cruelty or harassment should be for or in connection
with demand for dowry; and
(5) To such cruelty or harassment the deceased should have been
subjected soon before her death.
17. As and when the aforesaid essentials are established, a
presumption of dowry death shall be drawn against the accused under Section 1
13-B of the Evidence Act. It has to be kept in mind that presumption under
Section 113-B is a presumption of law.
18. No presumption under Section 113-B 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. However, 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 to stale before the date of death
of the woman.
19. “Soon before” is a relative term which is required to be
considered under specific circumstances of each case. No straitjacket formula
can be laid down by fixing any time-limit. This expression is pregnant with
the idea of proximity test. 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 has to be understood and determined
under the peculiar circumstances of each case.
20. In relation to dowry death, 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
of dowry is shown to have persisted, it shall be deemed to be “soon before
death”.
21. Proximate and live link between the effect of cruelty based on
dowry demand and the consequential death is required to be proved by the
prosecution. In other words, there should be a perceptible nexus between her
death on the dowry-related harassment or cruelty inflicted on her.
22. The phrase “soon before her death” is an elastic expression. It
can refer to a period either immediately before her death or within a few days
or even a few weeks before it. 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 harassment or cruelty 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 interval
was sufficient to satisfy the concept of “soon before her death”.
23. In the light of the above principles laid down in SHANTI v.
STATE OF HARYANA (1991 S.C.C.(Cri) 191, STATE OF H.P. v. NIKKU RAM
(A.I.R.1996 S.C.67), KANS RAJ v. STATE OF PUNJAB (2000 S.C.C.(Cri) 9 35) and
SATVIR SINGH v. STATE OF PUNJAB (2002 S.C.C.(Cri) 48), we have to see whether
all ingredients contemplated under Section 304-B I.P.C. have been satisfied.
24. P.W.1 Natarajan and P.W.4 Ranganathan are the residents of
Aavarampalayam. The deaceased was staying along with the husband and
mother-in-law at Kallapalayam. On getting the information that the deceased
died by falling into a well situate nearby to the house of the accused, both
of them along with the relatives went to the scene and enquired the residents
of the village and came to know that she was tortured by the first accused,
resulting in her committing suicide. P.Ws.1 and 4 cannot speak about what
actually happened in the village of the accused, as they belong to different
village. However, both of them speak about the demand of dowry over which the
deceased was tortured earlier. According to them, at the time of marriage,
they gave jewels and cash and within two months, the deceased came back to
their house and informed them that the accused demanded more money for
purchase of Moped and other things. P.W.1 gave Rs.2,000/- for purchase of
Moped, but even then, the torture continued demanding more money and jewels.
25. Every time, P.Ws.1 and 4, the brothers used to pacify both the
deceased and the first accused and made them unite by trying to meet the
demand made by the accused. However, the deceased was driven out again by the
first accused asking for more dowry. Consequently, the deceased gave a
complaint Ex.P7 to P.W.16, the Sub Inspector of Police on 3.9.1985. In Ex.P7,
it has been specifically mentioned that the accused demanded the amount for
the purchase of Moped and after beating the deceased, the first accused
obtained gold chain of 4 sovereigns from the deceased and sold the same and
again she was driven out insisting that she must get jewels of 10 more
sovereigns.
26. This complaint was enquired into by P.W.16,the Sub Inspector of
Police and both A1 and the deceased made an endorsement under Ex.P8 that they
would settle the matter among themselves and accordingly, the case was dropped
against the accused. This was on 3.9.1985. Thus, it is clear from the
evidence of P.Ws.1 and 4, the brothers, and P. W.16 Sub Inspector of Police
that there was a demand of dowry and the complaint of dowry demand given to
the police ended in compromise and consequently, both joined together.
27. The first accused himself would admit in Section 313 Cr.P.C.
statement that after the enquiry over the complaint, he pacified the deceased
and then took her to his house and again continued their matrimonial life.
Admittedly, this was within one year after the marriage.
28. There is no dispute in the fact that the marriage took place on
3.6.1984. The deceased died on 25.9.1988. Therefore, it has to be seen
whether the demand of dowry and torture over the same continued subsequent to
the compromise entered into between them till her death. Admittedly, even
according to the accused, when the deceased died, the child which was born to
them was 9 months old. According to P. Ws.1 and 4, even subsequent to the
compromise, the demand of dowry in the form of cash and jewels was continued
and unable to bear the torture, the deceased would use to come back to the
parental home and collect the money from P.Ws.1 and 4 to satisfy the demand of
the accused.
29. This evidence has been corroborated by P.W.5, residing in the
same village, who is a friend of P.W.1’s family. The evidence of P.W.5 would
reveal that even after the compromise, the deceased came to the house of
P.Ws.1 and 4 and received the cash and jewels and handed over the same to the
accused. According to P.W.5, the suffering over the dowry torture by the
deceased had also made her mother to lay down in death bed and ultimately, she
died on 17.8.1988. Even after her death, some more amount was demanded and
after all the ceremonies were over, the deceased was sent to the matrimonial
home along with money. These things would show that the torture as well as
the demand of dowry had continued till her death.
30. It is contended by the counsel for the appellants that even
assuming that some cash and jewels were demanded, it cannot be construed to be
dowry demand, as it would not satisfy the requirements of definition of dowry.
31. To meet the above contention, it is worthwhile to refer to some
of the observations made by the Supreme Court in the decision reported in
A.I.R.1996 S.C.67 (supra):
“The definition as amended by the aforesaid two Acts does not,
however, leave any thing to doubt that demands made after the solemnization of
marriage would be dowry. This is because the definition as amended reads as
below:-
“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 a 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 person to whom the Muslim Personal Law (Shariat) applies.”
(Explanations omitted being not relevant)
The aforesaid definition makes it clear that the property or the
valuable security need not be as a consideration for marriage, as was required
to be under the unamended definition. This apart, the addition of the words
“any time” before the expression “after the marriage” would clearly show that
even if the demand is long after the marriage the same could constitute dowry,
if other requirements of the section are satisfied.”
32. The above said observation would clearly indicate that any
property or valuable security demanded as a dowry even long after the
marriage, the same should the construed to be dowry as defined in the section.
33. In this regard, the evidence of P.W.2 assumes importance. P.W.2
Ramachandran is the beighbour of the accused. According to him, one or two
months prior to the occurrence when he asked the deceased as to the frequent
quarrels in her house, the deceased told him that she was being tortured by
the accused asking her to get more dowry for the accused. The relevant
portion of his evidence is as follows:
@ehd; ntYkzpaplk; mof;fo rz;il nghLfpwha; vd;W nfl;lnghJ. khkpahUk;.
fztUk; jk;gp tPl;ow;Fk;. mz;zd; tPl;ow;Fk; ngha; rPh; th’;fp th vd; W
bjhe;jut[ gz;qtjhf brhd;dhs;/ ,J rk;gtj;jpw;F 1. 2 khj’;fSf;F Kd; dhy;
,t;tpjkhf brhd;dhs;/@
(When I asked Velumani as to why you are quarrelling frequently, she
told that her mother-in-law and husband were torturing her to go to the houses
of her brothers and get dowry from them. She told like this 1 or 2 months
prior to the occurrence.)
34. If the above statement is true, it is clear, as stated by P.Ws.1
and 4, that A1 was never satisfied even though both of them tried to meet the
demands as far as possible.
35. According to P.W.6 Sarojini and P.W.8 Perumalsamy, the quarrel
with the deceased by the first accused was a regular affair. On the date of
occurrence, the deceased was beaten inside the house of the accused. P.W.6,
the sister of P.W.2 came out on hearing the sound of the deceased. After few
minutes, she went back to her house thinking that it was a routine quarrel.
36. P.W.8 Perumalsamy, the father of P.W.2, who is another neighbour,
would state that at about 7.00 a.m. on the date of occurrence, he heard the
noise from the house of the accused and found that the deceased was crying
asking the first accused not to beat her any more as it was paining.
37. This was witnessed by P.W.9 Muthammal, another neighbour who
heard the sound of the deceased crying that she may not be beaten any more.
But however, she did not enter into the house of the accused in order to help
her, since they happened to notice the quarrel and beating sound frequently.
38. This would show that there was a consistent quarrel in which the
deceased was tortured by the first accused, in the light of the evidence of
P.W.2, who stated that he was informed by the deceased herself that she was
being harassed by the first accused demanding more dowry.
39. As held by the Supreme Court in 2000 S.C.C.(Cri) 935 (supra), the
statements of the deceased made to any person which are directly connected
with or related to her death, the said statements would clearly fall under
Section 32 of the Evidence Act and as such, it is admissible and the same
would apply not only to the case of homicide, but also to the case of suicide.
40. Under the above well laid proposition, the evidence of P.W.2 who
is an independent witness and also residing next to the house of the accused
would clinchingly prove that the deceased was subjected to harassment and
torture continuously for long time over the demand of dowry.
41. Regarding the falling into the well and committing suicide by the
deceased along with the female child, we have got the evidence of P.Ws.2, 3
and 6 to 9. Their houses are situated very near to the house of the accused.
This is clear from the perusal of the observation mahazar Ex.P2.
42. According to P.W.2, on hearing the sound, he went to the scene
and he was told that the deceased along with the child jumped into the well.
At that point of time, the first accused was standing nearby. Then, P.W.2
with the help of a rope got into the well and attempted to save both the
deceased and child. However, he was able to rescue the child alone.
43. This evidence has been supported by other witnesses, namely P.
Ws.3 and 6 to 9. Moreover, the evidence of these witnesses with reference to
this aspect of the evidence has never been challenged. On the other hand,
D.W.2 Srinivasa Naidu who was examined on the side of the accused himself
would state that the deceased jumped into the well along with the child and
P.W.2 got into the well and was able to rescue the child alone.
44. According to the witnesses, the first accused did not make any
attempt either to rescue the deceased and the child or to assist P.W.2 . Next
day only, the body of the deceased was taken out from the well on the
complaint Ex.P1 given by P.W.1, and the complaint Ex.P10 given by the first
accused, the case was registered under Section 174 Cr.P.C. by P.W.17,the Sub
Inspector of Police.
45. P.W.18 Tahsildar conducted inquest next day and sent a report
Ex.P11 stating that the deceased committed suicide by jumping into the well.
In the subsequent enquiry conducted by D.W.1 Sub Collector, D.W.1 sent the
report Ex.X1 stating that the deceased died in the abnormal circumstances.
46. The above factors would make it obvious that the prosecution has
established that the deceased died in the abnormal circumstances by committing
suicide and her death had occurred within seven years of her marriage and
before that, the deceased was subjected to harassment by the first accused
demanding dowry soon before her death, thereby made out the case under Section
304-B I.P.C. Consequently, the presumption under Section 113-B of the
Evidence Act has raised.
47. This presumption, as indicated above, is a presumption of law
whereby the burden shifts on the first accused to rebut the said presumption.
48. Let us now see whether such a presumption has been rebutted.
49. The first document is the complaint which was given by the first
accused to P.W.17 Sub Inspector of Police. He admitted that he gave the said
complaint to P.W.17. In the said complaint, it has been specifically stated
that the deceased fell into the well on her own accord unable to bear her
stomach pain. Strangely, this defence has never been put as suggestion to any
of the witnesses examined by the prosecution. Similarly, this defence has not
been pleaded even when the accused were questioned under Section 313 Cr.P.C.
On the side of the defence, D.W.2 Srinivasa Naidu was examined. He has also
not pleaded this defence.
50. In this context, it is to be noticed that D.W.2 was not examined
as a defence witness in the earlier trial which ended in the year 19 91.
After the order of remand passed by this Court, the accused examined the said
witness as D.W.2 in the year 1995. According to D.W.2, in the early morning
of 25.9.1988, the deceased picked up quarrel with Pappu, a woman neighbour,
since she developed illicit intimacy with her husband (A1) and when this was
informed by A2 to A1, there was a quarrel and thereafter, the deceased along
with the child fell into the well. He himself would admit in his evidence
that P.W.2 Ramachandran came to the scene and got into the well and rescued
the child.
51. As indicated above, this plea has never been suggested to P.W.2
in his cross-examination. He also would admit that the houses of P. Ws.2, 3,
6 and 7 are situated very near to the house of the accused. He stated in the
cross-examination that he mentioned this incident to Sub Collector. But, it
was never elicited from D.W.1 Sub Collector that such a statement was given by
D.W.2 Srinivasa Naidu to him. On the other hand, D.W.1 would state in his
report Ex.X1 that death of the deceased was not due to the illicit intimacy of
A1 with Pappu, but it was only due to the dowry torture.
52. There was no reason as to why the said Srinivasa Naidu (D.W.2)
was not examined in the earlier trial. Furthermore, the plea of the defence
made through D.W.2 in the year 1995 before the trial Court is quite
contradictory to the facts mentioned in Ex.P10, the complaint given by the
first accused in the year 1988, i.e. on the date of occurrence, 25.9.1988.
53. Even during the questioning under Section 313 Cr.P.C., his answer
to the question No.4 is not consistent with the contents of Ex.P10, his
complaint. As per Ex.P10, he went to the garden on 25.9.1988 at 7.00 a.m.
and came back to the house and at that time, the deceased jumped into the well
due to her stomach pain. No reference about the child was mentioned therein.
But, in the statement under Section 31 3 Cr.P.C., he said that on 2.9.1988
night itself, he left the village for attending to his job and as such, he was
not available when the occurrence had taken place. But, according to D.W.2,
the first accused was standing there, when the deceased along with the child
jumped into the well.
54. All the other witnesses who were present at the time of
occurrence had stated that the first accused did not make any attempt to save
the deceased and child. When such is the evidence by the prosecution
witnesses, the first accused must have explained as to why he did not make any
attempt to rescue the deceased and child.
55. The only suggestion put to all the local witnesses, namely, P.
Ws.2, 3 and 6 to 9 that they wanted to get the land of the accused on lease
and they could not succeed and so, they became inimical towards them.
56. This suggestion has no basis and the same has been rightly denied
by the witnesses. If P.W.2 had any enmity with the accused family, he would
not have made attempt to save both the deceased and child. On the other hand,
D.W.2 himself would admit that P.W.2 alone got into the well and rescued the
child. Even D.W.2 did not state anything about the enmity between the accused
family and the witnesses.
57. As a matter of fact, the second accused would state in her
statement under Section 313 Cr.P.C. that P.W.8 Perumalsamy is her rpj;jg; gh
(junior paternal uncle). Thus, it is clear that all these witnesses are not
only the local residents, who are having the houses nearby, but also the
relatives of the accused and as such, there is no necessity for them to speak
falsehood against the first accused. Hence, it has to be held that the
presumption, which has been drawn under Section 113-B of the Evidence Act has
not been rebutted.
58. The counsel for the appellants would cite two authorities,
namely, 1999(1) L.W. (Crl.) 127(supra) rendered by this Court and 1997(9)
S.C.C. 759 (supra). In both these decisions, it has been held on facts by
this Court as well as the Supreme Court that subsequent to the compromise in
the panchayat, no evidence was let in by the prosecution to establish that
dowry torture continued thereafter and under those circumstances, the accused
were acquitted in respect of Section 304 -B I.P.C., though they were convicted
for Section 498-A I.P.C. But, those decisions would not apply to the present
facts of the case, as, in my view, as indicated above, the dowry torture
continued on the deceased by A1 even after the compromise till her death.
59. However, the evidence which is available on record with reference
to the complicity of A2, the mother of A1, in my view, is not sufficient to
find her guilty for the above offences. P.Ws.1 and 2 would make general
allegation with reference to the demand not only against the mother-in-law
(A2), but also against the father-in-law, who has not been arrayed as an
accused.
60. P.W.4, another brother of P.W.1 would speak about A1 alone
regarding the dowry demand and torture. P.W.5, a friend of P.W.1’s family did
not implicate A2 at all. P.W.2, who is the star witness in this case, would
state that A1 was simply standing near the well and A2 alone cried stating
that her daughter-in-law had put a stone on head by jumping into the well.
P.W.3 also would support this statement. P.W.6, another neighbour had stated
that there was frequent quarrel only between the first accused and the
deceased. Similarly, P.Ws.8 and 9, the other neighbours would not refer to
the presence of A2.
61. Apart from this, on the complaint Ex.P7 given by the deceased on
3.9.1985, the enquiry was conducted by P.W.16 Sub Inspector only with A1 and
the deceased. Both of them gave a letter Ex.P8 stating that they would settle
the matter among themselves. This would show that A2 was not interrogated
with reference to the above complaint by the police as the deceased was not
serious against A2 with reference to the dowry torture. All these things put
together would make it clear that the available materials would not prove the
offences for which A2 was tried.
62. It is also noticed from the evidence that P.W.19, the
Investigating Officer handed over the female child Dhivya Prabha to A2, as the
relative witnesses of the deceased were not prepared to take the child. Even
in the statement under Section 313 Cr.P.C., the second accused stated that the
child Dhivya Prabha is with her. Under those circumstances, A2 is liable to
be acquitted.
63. As far as A1 is concerned, the discussion made with reference to
the materials available on record for the offence under Section 304-B I.P.C.
would apply to the other sections, namely Section 4 of the Dowry Prohibition
Act and Section 498-A of I.P.C. also.
64. As held by the Supreme Court in 1991 S.C.C. (Cri) 191 (supra),
though Sections 304-B and 498-A I.P.C. deal with two distinct offences,
“cruelty” is a common essential to both the sections and if the same is
established, then the accused can be convicted under both the sections, but no
separate sentence need be awarded under Section 498A, in view of the
substantive sentence being awarded for the major offence under Section 304-B.
65. In this case, the trial Court sentenced the accused to undergo
R.I. for 10 years for all the three offences. This is wrong. Section 4 of
the Dowry Prohibition Act would provide for the maximum punishment of two
years R.I. and fine. Section 498-A I.P.C. would provide for the maximum
punishment of three years R.I. and fine. Only Section 304-B I.P.C. would
provide for the punishment for a term which shall not be less than seven years
R.I. and which may extend to imprisonment for life. Therefore, the
imposition of 10 years R.I. for each of the offences is wrong.
66. Under those circumstances, the interest of justice would be met
by imposition of 7 years R.I. being the minimum for the offence under Section
304-B I.P.C. and there need not be any separate sentence for the offences
under Section 498-A I.P.C. and Section 4 of the Dowry Prohibition Act.
67. In fine, the appeal in respect of the second appellant (A2) is
allowed setting aside the conviction and sentence imposed on her and she is
acquitted of all the charges. The bail bond executed by her shall stand
cancelled. The appeal in respect of the first appellant ( A1) is dismissed
confirming his conviction and reducing the sentence from 10 years R.I. to 7
years R.I. for the offence under Section 304 -B I.P.C. The trial Court is
directed to take steps to secure the custody of the first appellant (A1) to
undergo the remaining period of sentence. Thus, the appeal is partly allowed.
15-11-2002
Index: Yes
Internet:Yes
mam
To
1) The Assistant Sessions Judge, Udumalpet.
2) -do- the Principal Sessions Judge, Coimbatore.
3) The Public Prosecutor, High Court, Madras.
4) The Inspector of Police, Gudimangalam Police, Station,
Coimbatore.
5) The Superintendent, Central Prison for Women, Vellore.
6) -do- Central Prison, Coimbatore.
7) The District Collector, Coimbatore.
8) The Inspector General of Police, Chennai-4.