IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1426 of 2003()
1. SAIFUDEEN, S/O.MUHAMMED ABDUL KHADER,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
For Petitioner :SRI.KRB.KAIMAL (SR.)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.RAMKUMAR
Dated :16/10/2009
O R D E R
V. RAMKUMAR , J.
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Crl. Appeal No. 1426 of 2003
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Dated this the 16th day of October, 2009.
JUDGMENT
The 1st accused in S.C. No. 291 of 1998 on the file of
the Additional Sessions Court, Fast Track – I,
Thiruvananthapuram, challenges the conviction entered and
the sentence passed against him for an offence punishable
under Section 304 (B) IPC.
2. The case of the prosecution can be summarised as
follows:-
A1 (Saifudeen) who is the brother of A2 (Shyla Beevi)
and son of A3 (Salma Beevi) married deceased Jaseera
Beevi, the daughter of CW1 (Ibrahim Kunju) on 08.09.1996
as per the Muslim customary rites at Meera Sahib Hall
situated near the A.R.P Camp, Pallipuram. After the
marriage, Jaseera Beevi was residing in her matrimonial
home by name Kurakkode Edavilakathu House situated in
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Edavilakom Muri of Veiloor village. Besides A1, his sister
A2 and mother A3 were also residing in the said house.
While so, A2 and A3 used to continuously subject deceased
Jaseera Beevi to cruelty stating that the gold ornaments
given to her at the time of her marriage by CW1 were old
and of low quality and that they did not weigh 15
sovereigns. Similarly, A1 subjected Jaseera Beevi to cruelty
both physically and mentally demanding her to sell the 15
cents of property which was given to her at the time of her
marriage by her father CW1 and to make available to him
the sale proceeds. Asking her to sell the said property and
bring him the sale proceeds, A1 at the instigation of A2 and
A3 took his wife Jaseera Beevi to her house and left her
there. CW1, the father of Jaseera Beevi thereupon
promised to pay A1 Rs.1,50,000/- and agreeing to the same,
A1 took his wife back to the matrimonial home. During the
subsequent period also, Jaseera Beevi was constantly
harassed by saying that the sum of Rs.1,50,000/- was not
Crl. Appeal No. 1426/2003 : 3 :
sufficient and she should bring a sum of Rs.3,00,000/- from
her father. A2 and A3 made her life miserable with A1. On
28.11.1996 at 11 a.m., Jaseera Beevi while proceeding to
her house was assaulted by A1 from the vicinity of
Karichara bridge. On account of the mental anguish and
extreme despair due to the feeling that she would not have
any more peaceful marital life, at about 11 noon, on
28.11.1996, at Cherukayalkara in Edavilakom Muri of
Veiloor village Jaseera Beevi committed suicide by jumping
in front of an ITD goods train from Irumpanam to
Thirunelveli which came from north to south along the
Thiruvananthapuram – Kollam railway line. The accused
have thereby committed the offence of dowry death
punishable under Section 304 B r/w Section 34 IPC.
3. On the accused pleading not guilty to the charge
framed against them by the court below, the prosecution
was permitted to adduce evidence in support of its case.
The prosecution altogether examined 11 witnesses as P.Ws
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1 to 11 and got marked 6 documents as Exts. P 1to P6 and
5 material objects as Mos 1 to 5.
4. After the close of the prosecution evidence, the
accused were questioned under Sec. 313 (1)(b) Cr.P.C. with
regard to the incriminating circumstances appearing
against them in the evidence for the prosecution. They
denied those circumstances and maintained their
innocence.
5. The 1st accused made the following submissions
before court:-
After the marriage between himself and Jaseera Beevi,
they were residing in his house. Their post-marital life was
very cordial and loving. There was absolutely no sort of
difference of opinion or problem between them. On
28.11.1996, he had gone to Kazhakuttom after bidding leave
to his wife. When he returned to the shop, Jaseera Beevi
expressed a desire to go home. He did not permit her to go
and instead, asked her to go to the shop at Kazhakuttom for
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doing certain work in the shop. Thereafter, it was while he
was returning with certain articles from the shop that he
came to know that Jaseera Beevi was dead due to train
accident. He went to the place of occurrence. He had
participated in the funeral also. The parents of Jaseera
Beevi had demanded her gold ornaments. They were
returned to them through the Mangalapuram Police as
insisted by him and a receipt was also obtained. Thereafter,
the present case was foisted against him, his sister and
mother alleging that the gold ornaments were not returned.
6. The accused did not adduce any defence evidence
when called upon to enter on their defence.
7. The learned Additional Sessions Judge, after trial,
as per judgment dated 29.07.2003 acquitted A2 and A3 of
the offence charged against them, but convicted the
appellant/1st accused of the offence punishable under
Section 304 (B) IPC. For the said conviction, the appellant
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was sentenced to rigorous imprisonment for 7 years. Set
off under Section 428 Cr.P.C was given to him. It is the said
judgment which is assailed in this appeal.
8. I heard the learned counsel for the appellant and
the learned Public Prosecutor.
9. PW1 (Arifa Beevi) is the elder sister of deceased
Jaseera Beevi. Her evidence is to the following effect:-
She is residing near the C.R.P camp, Pallipuram. She
is employed as the senior technician in the Thermo Pen
Board at Puliyarakonam. Jaseera Beevi was her younger
sister. Her father and mother and A1 are the persons
residing in her ancestral house. The marriage of Jaseera
Beevi was on 08.09.1996 at Meera Sahib hall near C.R.P
camp at Pallipuram. For the marriage 15 cents of land,
gold ornaments worth 15 sovereigns, cash worth
Rs.20,000/- and a gold ring were given. It was an
arranged marriage. After the marriage, A1 and Jaseera
Beevi started residing in the house of A1 at Edavilakom.
The parents of A1 and A2 (Shyla Beevi – who is the 4th
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sister of A1) were residing in that house. A3 is the mother
of A1. Two weeks after the marriage, PW1 and her sister-
in-law had called Jaseera Beevi for a get-together. A1 and
Jaseera Beevi visited them after one month of the
marriage. At that time, a gold ring weighing 3/4 of a
sovereign was presented to her sister. At the time of
marriage, PW1 had given her sister a gold ring weighing
3/4 sovereign. Jaseera’s father-in-law was treating her
very affectionately. She also loved her father-in-law very
much. But A2 and A3 used to physically and mentally
harass Jaseera saying that the gold ornaments given to
Jaseera were not weighing 15 sovereigns and that they
were of poor quality. She told PW1 that her husband (A1)
was not loving her and was always beating her and he was
always sleeping at home without going for a job and she
was finding it difficult to stay there. PW1 advised her that
after all it was her matrimonial home and the attitude
would change and she will have to put up with those
difficulties. PW1 is residing separately. When PW1 paid a
visit to her ancestral house Jaseera Beevi was there and
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she told PW1 that A1 had left her there on the 11th. The
reason for leaving her there was that A1 wanted to
purchase 40 cents of land belonging to his sister Sabeena
Beevi and to enable the said wish of A1 to materialise the
15 cents given to Jaseera Beevi was to be immediately sold
and the sale proceeds to be handed over to him. After
about 10 or 12 days, PW2 had a talk with the father of A1
and had agreed to give Rs. 1,50,000/- after disposing of
the property. On the basis of the said offer made by PW2,
A1 took Jaseera Beevi back to the matrimonial home.
About 2 or 3 days thereafter, PW2 had been to the house
of PW1 and he told her that Jaseera has still problem in
her matrimonial home and that they were asking for Rs.3
lakhs for purchasing the property of Sabeena. One day,
that is on 28.11.1996 at about 6 p.m., while PW1 was
returning home from her work place she came to know
that her sister Jaseera was dead. She believes that her
sister died due to the constant persecution by her
husband, mother-in-law and sister (A1 to A3). It was a
dowry harassment. Manichi (PW3) was PW1’s classmate.
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PW3 had told her that when PW3 had gone to take bath,
she had met Jaserra Beevi and they exchanged
pleasantries and thereafter, A1 who was sitting near the
bridge beat Jaseera Beevi and had given her a push and
A1 was dissuaded from further assaulting Jaseera Beevi by
Muhammadali (PW4) and Jaseera Beevi had taken leave of
Manichi. PW1 had given a statement to the police. It was
unable to bear with the cruelty in the house of A1 that her
sister ended her life by jumping in front of a train. MO1
series are the gold bangles of Jaseera Beevi. MO2 is the
gold chain and MO3 is the gold ring, MO4 is the matty
and MO5 series are the pair of ear studs of her sister.
At the time of Jaseera Beevi’s marriage A2 was taking rest
after child’s birth. It was 15 days after the marriage of
Jaseera Beevi that PW1 and her sister in law went there.
She has not gone there thereafter. When they went there
A2 and A3 were there. They did not demand anything
from her either during the said occasion or any time
thereafter. She has seen them ill-treating her sister in her
presence. On the day on which A1 and Jaseera Beevi had
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paid a visit to PW1’s house A1 had beat Jaseera Beevi on
her back and had dragged her. The reason for the said
beating was on the ground that she had come late. PW1
did not tell this to the Police. She had told her parents
about the dowry issue of her sister and that Jaseera Beevi
was being ill-treated for not selling the property. A1 had
been to the ancestral home of PW1 along with Jaseera
Beevi thrice. She had heard that after going there, one
week after their marriage, A1 had left Jaseera Bevi in her
house on 11.11.1996. The reason for leaving Jaseera
Beevi in her house was for selling 15 cents of land and
making the sale proceeds available to him. This
information was conveyed to her by Jaseera Beevi on the
15th. Jaseera Beevi was given 15 cents of land by way of
gift deed executed by her father prior to her marriage.
That document is in her house and it can be produced. It
is not correct to say that not even a cent of land was given
to Jaseera Beevi. MOs.1 to 5 were the ornaments which
Jaseera Beevi was always wearing. After the death of
Jaseera Beevi, the other ornaments kept in her table were
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handed over to PW1’s father by the Police on the strength
of a receipt. It was PW2 who had told her that
Rs.1,50,000/- was not enough and they wanted Rs.3 lakhs.
Her sister had told her that A1 used to physically assault
her. She had not told this to the Police. But she is not
lying before court. Jaseera Beevi had told her about the
physical assault made by A1. PW3 Manichi is her friend.
One has to cross the Kaniyapuram and Murikkumpuzha
road and the railway line for going to the ancestral home
of PW1 from the house of A1. There is a pathway leading
to the railway line and it is after crossing the railway line
that they go to their ancestral home. There are walls on
the either side of the pathway. One can go through that
way also. It is possible to go beneath the bridge as well.
It is not correct to say that Jaseera Bevi died accidentally
while crossing the railway line. It is not correct to say that
her sister did not suffer any ill-treatment or harassment
from the accused persons and that they were all living
peacefully. One she heard was that the accused used to sit
in the shop belonging to his father. After the marriage he
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was not in the habit of going to the shop and is sleeping as
if he were under the influence of drugs. Jaseera Beevi had
told her that she was sad, because her husband was not
going to work and there was no property of his own.
10. PW2 (Basheer) is a driver by avocation. He had
married the elder sister of Jaseera Beevi. He also spoke
about the marriage of Jaseera Beevi and the dowry given
to A1 at the time of her marriage. The relevant portion of
his evidence reads as follows:-
A1’s father was having a grocery shop. After the
marriage of Jaseera Beevi, PW2 had gone to A1’s house to
invite them for a get together. A1 was not in his house.
A1 was invited from his shop. They did not respond to the
invitation saying that they do not have time. He used to go
to the ancestral home of Jaseera Beevi. 15 cents of land
was carved out and given. He was also involved in getting
the documents prepared. CW1 the father of Jaseera Beevi
had told him that A1 had left Jaseera in her ancestral
home. When PW2 asked him the reason, CW1 told him
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that A1 had asked him to sell the 15 cents of land and give
him the sale proceeds. PW2 had mediated in the matter as
was authorized. He had gone to A1’s shop. At that time
A1 was not there but his father was available in the shop.
After some time A1 also came there. They had talked for
some time and after which the agreement was that if a
sum of Rs,1,50,000/- was given, they would execute a deed
in his favour for 15 cents. He agreed to pay the money
within one month and told CW1 about it. The other
sisters of A1’s wife were also informed. After about 3 to 4
days when he had been to the shop of A1’s father he came
to know that Jaseera Beevi was taken back. About 4 to 5
days thereafter A1’s father had called him and told that it
was not possible to purchase the property of Sabeena for
Rs.1,50,000/- and that they wanted 3 lakhs. PW2 told him
that it was not possible for him to agree to this demand.
Then A1’s father told him that if the money was not paid,
A1 would leave Jaseera in her ancestral home and that
almost every day there were quarrels between A1 and
Jaseera on account of this issue. PW2 offered to sell the
Crl. Appeal No. 1426/2003 : 14 :
property to anybody else. PW2 informed the matter to
Jaseera’s father. When he came to know of the death of
Jaseera he was aware that it was due to the constant
harassment by A1 and his family members. He had given
a statement to Police. The fact that Jaseera Beevi was
treated with cruelty was once told by PW1 when the latter
had gone to his house. She had also told him that A1 had
beaten Jaseera when they had paide a visit to PW1’s
house. The distance between the house of A1 and A1’s
shop was about 100 meters. He had been to the shop of
A1’s father 2 or 3 times. That was in connection with the
mediation talk. Besides his father, A1 was also insisting
that the property was to be sold and the sale proceeds
made available to him. The document in favour of Jaseera
Beevi is with CW1 who might have shown it to the Police.
11. PW3 (Manichi) is a resident of Sree Pathanam
colony. She was having a grocery shop. She knew both
Jaseera Beevi as well as PW1. The last time she saw
Jaseera Beevi was on 28.11.1996 at a time when she had
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come to take bath in the Cheruvakkal thodu. The time was
about 11 a.m. She had seen Jaseera Beevi coming from
Kurakkoot area. Both of them had pleasantries Jaseera
told her that she was coming from her matrimonial home.
Thereafter Jaseera Beevi went towards the bridge
[Eventhough this witness was cited to prove that from the
vicinity of bridge A1 had beaten Jaseera Beevi, she did not
support this part of the prosecution This witness was treated as
hostile to the prosecution and was cross-examined by the Public
Prosecutor.] What Jaseera Beevi told her was about her
problems in the matrimonial home and that her husband
was compelling her to sell her property and almost every
day there used to be quarrels. PW3 deposed that it was on
28.11.1996 when she met Jaseera Beevi that she came to
know that Jaseera was married. Cheruvarakkal Thodu and
Kalluvarambal Thodu are one and the same. On that day
Jaseera was wearing black churidar with a shawl.
12. PW4 (Mohammedali) is running a pan shop at a
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place called Karichara. He knows deceased Jaseera Beevi.
He had attended her marriage. She died on 28.11.1996.
On that day he was proceeding on his bicycle to
Murikkumpuzha for purchasing commodities. He had seen
Jaseera Beevi near the bridge. She was accompanied by
her husband (A1) and both were engaged in a quarrel. He
intervened in their scuffle and separated them. At that
time PW3 (Manichi) was taking bath in the Cheruvikkal/
Kalluvarambil thodu. He went to Murikkumpuzha and
returned back at about 1 p.m. By that time news was
spread that a lady had been run over by the train. When he
went there he found that it was Jaseera Beevi. He had
attended her funeral. He told to Jaseera’s father about what
he saw. The reason for her death could be the discord
between Jaseera Beevi and her husband. Jaseera Beevi was
found near the Varambha of the thodu below the bridge.
He was proceeding from south to north towards
Murikkumpuzha. The bridge is also running north-south.
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On either side of the bridge there are thodus. On can enter
the railway line by proceeding along the ridge (varamba).
It is called Cheruvarakkal thodu. There are bathing-ghats
at several points. The height difference between thodu and
the bridge would be about the height of two persons. There
is a hand rail on the either side of the bridge. He did not go
near the quarrelling spouses on 28.11.1996. He put his
cycle on the stand. A1 was wearing a shirt and mundu and
Jaseera Beevi was wearing saree and blouse. He is not able
to clearly remember the dress worn by A1 and Jaseera
Beevi.
13. PW5(Aysha Beevi) is the mother of the deceased.
She was aged 70 years while giving evidence in the year
2003. The main part of her testimony is as follows:
She is residing at Karichara. Deceased Jaseera Beevi
was her youngest daughter. Jaseera Beevi was given in
marriage to A1 who is the son of A3(Salma Beevi). At the
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time of marriage 15 sovereign of gold ornaments, 15 cents
of land and cash worth Rs.20,000/- were given as dowry.
The marriage was on 8.9.1996. After the marriage she was
residing with the accused. About one or two weeks prior to
her death, A1 had left her in the house of PW5. Her
daughter told her that the reason for her husband leaving
her there was on the allegation that the gold ornaments
were of poor quality and they did not get 15 cents of land
given to her sold and sale proceeds given to him. It was
after the intervention of PW2 (Basheer) that she was taken
back on the promise that the property would be sold within
one month and the sale proceeds would be given. The
death of Jaseera Beevi is on the eighth day after she was
taken back. She had jumped in front of a running train and
committed suicide. It was unable to bear with the ill-
treatment given by A1 to A3 with regard to the gold
ornaments given to Jaseera Beevi that she committed
suicide. Nobody was entrusted for mediating the matter
Crl. Appeal No. 1426/2003 : 19 :
but her nephew (PW2) had intervened and promised to pay
the money after selling the property. The demand was for
Rs.3 lakhs. She is not giving false evidence at the
instigation of PW2(Basheer).
14. PW6(Vijayan) hailing from Veiloor is the eye-
witness to Jaseera Beevi jumping in front of a running train
and committing suicide. The main part of his testimony is
as follows:-
He resides at Varikkumukku. He knows Jaseera Beevi.
He along with one Shukkur, Salim, Sasi(PW7) etc. were
engaged in a chat at Cheruvakkara. While so, he proceeded
towards the railway track for passing urine. At that time he
saw Jaseera Beevi walking near the railway track. This took
place about 5 or 6 years ago. He does not remember the
date. A goods train came from Trivandrum side. When the
train reached closer, Jaseera Beevi jumped in front of the
train. Then he called his friends and showed it. She was
wearing a black churidar and yellow shawl. She was
Crl. Appeal No. 1426/2003 : 20 :
wearing ornaments. The time was about 12 noon. It was
the railway track at Cherukayalkara. It is a hilly area at
that spot. The railway track is at the foot of the hill. The
height would be about that of two persons. The matter was
informed to Jaseera Beevi’s relatives through telephone.
Basheer (PW2) is his neighbour. Jaseera Beevi was wearing
a black churidar and top with an yellow shawl. PW6 and
others were standing about 10 or 35 meters away from the
pathway which proceeds westwards from the
Cherukayalkara bus stop. There is compound wall on
either side of the said pathway. The railway line has a
curve at that spot.
15. PW7 (Sasi) is a resident of Varikkumukku at
Murikkumpuzha. He is an attestor to Ext.P2 Inquest report
prepared by the Tahsildar, Thiruvananthapuram. He was in
the company of PW6 when the occurrence took place.
16. PW8 (Dr.R.Meera Nair) who was a lecturer in
Forensic Medicine, Medical College, Thiruvananthapuram
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conducted the autopsy of the dead body of Jaseera Beevi on
29.11.1996. Ext.P3 is the post mortem certificate prepared
by PW8. Ext.P3 shows that the body of Jaseera Beevi was
brought in five parts as follows:-
1. Crushed soft tissue and bones of right elbow.
2. Crushed soft tissue and bones of right hand.
3. Crushed soft tissue and bones of left leg and foot from
knee downwards.
4. Right foot and
5. rest of the body.
There were 17 injuries on the body. Six of her ribs on
the right side were fractured. The cause of death as
concluded in Ext.P3 was that it was due to multiple injuries.
There were grease stains on the under aspect of left foot.
PW8 has deposed that the multiple injuries noted in
Ext.P3 could be caused by the hitting of a running train
against a person walking through the railway track. She
clarified it in re-examination by saying that the injuries
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were possible when the person was walking through the
railway track facing the train and and that the hitting must
have been against the front portion of the body.
17. PW9 (S.Bahuleyan) was the Tahsildar of
Thiruvananthapuram who was also having the powers of the
Executive Magistrate. Inquest over the dead body of the
deceased Jaseera Beevi was held by PW9. Ext.P2 is the
inquest report.
18. PW10( Sreekumar) was the Sub Inspector of Police,
Mangalapuram. He proved Ext.P4 First Information
Statement given by CW1, the father of deceased Jaseera
Beevi and registered the case as Crime No.324 of 1994
under the caption “unnatural death” under Section 174
Cr.P.C. During the course of investigation, he filed Ext.P5
report to include Section 304B read with 34 IPC and to
delete Section 174 Cr.P.C; and also to add the names of A1
to A3 in the array of accused. He arrested A1 on
18.1.1997 at 8.30 A.M from Purakode. During cross-
Crl. Appeal No. 1426/2003 : 23 :
examination he admitted that he did not see the document
as per which 15 cents of land was given to the deceased.
19. PW11(Sasidharan) was the Dy.S.P, Attingal. He
had only verified the investigation conducted by PW10. The
charge was laid by CW24. PW11 also admitted that he did
not see the document relating to 15 cents of land given to
the deceased. He has deposed that CW1 had told him that
the deceased told CW1 that the accused were continuously
harassing her saying that the gold given to her was old.
20. The learned counsel for the appellant made the
following submissions before me in support of his fervent
plea for the acquittal of the appellant:-
There is absolutely no evidence of any demand for
dowry deposed to by any of the prosecution witnesses.
Except the oral vibrations of PWs.1,2 and 5 that 15 cents of
land was given to the deceased at the time of her marriage,
there is no acceptable evidence to prove the same. PW2
even claim to have seen the document. He had allegedly a
Crl. Appeal No. 1426/2003 : 24 :
role to play while 15 cents of land was given to the
deceased. PW1 even offered to produce the document but
no document by way of gift has been produced before court.
If so, the testimony of the prosecution witnesses that the
accused persons had been pestering insisted the deceased
to sell the property and to make over the sale proceeds so
as to enable him to purchase his sister’s property cannot be
believed for a moment. It is true that PW1 had deposed
that A1 had beaten the deceased in her presence. But that
beating was not in connection with any demand for dowry,
but it was for coming late. The deceased was evidently
going northwards along the eastern edge of the railway
track which is lying north-west. That explains the presence
of grease on the bottom of her left foot. If she had been
walking along the railway track both her legs ought to have
been smeared with grease. The mere fact that her left leg
alone was smeared with grease as revealed by Ext.P3 post
mortem report shows that she might have been walking
Crl. Appeal No. 1426/2003 : 25 :
along the edge of the railway track where alone grease
could ordinarily be found. Going by the testimony of PW6,
the deceased was jumping before the running train from
sideways. But the evidence of PW8 and the Post mortem
report would indicate that the deceased must have been
proceeding facing the running train. If that version is
accepted the testimony of PW6 that she jumped onto the
running train from the side of the track could not be true.
CW1 the father of the deceased Jaseera Beevi has not been
examined by the prosecution. He was the person who
lodged the First Information Statement. It was to him that
the deceased had allegedly disclosed her bitter experience
in the matrimonial home. The non-examination of CW1 is,
therefore, very crucial. When there is no acceptable
evidence to show that the deceased was ill-treated soon
before her death and such ill-treatment was in connection
with any demand for dowry, merely because she died 2
months of her marriage, it cannot be said that the offence
Crl. Appeal No. 1426/2003 : 26 :
under Section 304(B)IPC is attracted. There is no warrant
for invoking the provision under Section 113B of the
Evidence Act. The conviction entered overlooking the
above aspects cannot be sustained, The appellant relies on
the decisions State of Kerala v. Mohanan Pillai (1991(1)
KLT 494), Biswajit Halder @Babu Halder and others v.
State of West Bengal (2008(1)SCC 2002) and Inderpal
V. State of Madhya Pradesh (2001(10)SCC 736).
21. I am afraid that I cannot agree with the above
submissions. The testimony of P.W.1, the elder sister of the
deceased clearly shows that the deceased had told her that
A2 and A3 were constantly ill-treating her physically and
mentally saying that the gold given at the time of her
marriage was less than 15 sovereigns and that they were of
poor quality. It is true that the said allegation is against A2
and A3 who have been acquitted by the court below. But
then, instead of A1 defending her or going to her rescue, he
was also beating her and snoring in the house without
Crl. Appeal No. 1426/2003 : 27 :
going for any work. The further statement of P.W1 shows
that A1 left Jaseera Beevi in her parental home and the
reason for the same was that the 15 cents of land given to
her by her father was not sold and the sale proceeds handed
over to A1 to enable him to purchase 40 cents of land
belonging to his sister Sabeena. This statement of P.W.1
was not challenged in cross-examination. No doubt, it was
put to her that not even a cent of land was given to her.
That suggestion was emphatically denied by her. The
conduct of A1 was that unless and until he was given a
promise through P.W.2 (Basheer) that the property would
be sold for Rs. 1,50,000/- and the sale proceeds would be
given to him, he was not prepared to take his wife to her
matrimonial home. Eventhough he took her back to his
house, P.W2 says that the simmering problem did not end
there and that the demand was enhanced to Rs. 3,00,000/-.
It was in the cross-examination of P.W.1 that A1 elicited
that at a time when Jaseera Beevi and A1 paid a visit to
Crl. Appeal No. 1426/2003 : 28 :
P.W1’s house A1 had beaten Jaseera in her presence and
the beating was on her back and she was thereafter
dragged. No doubt, the reason given for the beating was
that it was for coming late. The subsequent statement of
P.W.1 also shows that it was the demand for more money
that became a torment for Jaseera in her matrimonial home
and P.W.1 had occasion to mention the same to her parents.
At page 11 of her deposition, PW1 re-iterated that it was
with a demand for sale of 15 cents of property and hand
over the sale proceeds to A1 that Jaseera was taken to her
parental home on 11-11-1996. At page 12 of her
deposition PW1 has stated that the deceased had told her
that A1 used to inflict corporal assault on her . The
testimony of P.W.2 that 15 cents of land had been
measured and carved out and it was with his involvement
that the document was prepared was not challenged in
cross-examination. P.W.2 has also credibly deposed
before Court that A1 had demanded to P.W.2 that 15
Crl. Appeal No. 1426/2003 : 29 :
cents of land had to be sold and sale proceeds to be
handed over to him. The further statement of P.W.2 at
page 5 of his deposition is that initially the demand was
for Rs. 1,50,000/- and A1’s father later on told him that it
would be insufficient and that Rs.3,00,000/- was
subsequently demanded. The above testimony of PW2 has
not been challenged in cross-examination. Eventhough
P.W.3 (Manichi) did not fully support the prosecution by
telling the court that she did not see A1 beating his wife
Jaseera Beevi from the vicinity of the bridge on 28-11-1996,
she, however, stated that Jaseera who was her friend told
her at about 11 a.m. on 28-11-1996 that her husband was
compelling her to sell her properties and almost every day
there used to be quarrels and problems in their house.
This according to P.W.3 could be the reason for her death.
It was the heart-rending plight of Jaseera in her
matrimonial home which she had divulged to her friend
Manichi which struck Manichi to hold the belief that
Crl. Appeal No. 1426/2003 : 30 :
Jaseera died because of ill-treatment and the unlawful
demand for more money. If what was uppermost in the
mind of A1 and his family members was the non-fulfillment
of their demand to sell the property given to Jaseera Beevi
and the consequent handing over the sale proceeds and if
this was the reason for his taking her to her parental home
and leaving there, the scuffle between the spouses
witnessed by Muhammedali (PW4) could also be a
manifestation of A1’s rancour towards his wife in not
obeying his directions. If that part of his testimony that
he intervened and separated them from fighting is
eschewed from consideration in view of his statement
during cross-examination that he did not go near them, the
fact remains that he had seen the quarrel between the
spouses. The root cause for the quarrel as spoken to by
P.Ws.1 to 3 could only be the demand for sale of the
property given to Jaseera by her father and to hand over the
sale proceeds to A1 for purchasing her sister’s property.
Crl. Appeal No. 1426/2003 : 31 :
This demand was also for or in connection with a demand
for dowry. The accusation by A2 and A3 (sister and mother
of A1) that the gold given did not measure 15 sovereign and
was of inferior quality, was not taken exceptions to by A1.
Far from that he too inflicted corporal torture on her and
even took the deceased to her own parental house and left
her there. Going by the Explanation under Section 304
(b) I.P.C. the expression “dowry” is to be understood as
defined under Sec. 2 of the Dowry Prohibition Act, 1961,
which means any property or valuable security given or
agreed to be given either directly or indirectly by one party
to a marriage to the other party to the marriage or by the
parent 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. The
words “in connection with the marriage of the said
parties”, in Section 2 of the Dowry Prohibition Act, were
substituted for the words” in consideration of the
Crl. Appeal No. 1426/2003 : 32 :
marriage”. Therefore, the property demanded, agreed to be
paid or paid need not be in consideration of the marriage.
It is enough if it is done so in connection with the
marriage. If so, the cruelty or harassment by A1 and his
relatives A2 and A3 was in connection with a demand for
dowry as defined under Section 2 of the Dowry Prohibition
Act, 1961. The property demanded or agreed to be given
need not be in consideration of the marriage, but need only
be in connection with the marriage.
22. There cannot be any quarrel regarding the
proposition laid down in 1991 (1) KLT 494 (supra) and
Sudhakar and Another v. State of Maharashtra-2008
(1) SCC 202. That is a proposition which is equally
applicable in the case every prosecution. Unless there is
evidence to make out the offence, the accused facing trial
cannot be convicted for the offence.
23. The harassment and ill-treatment spoken to by P.Ws
1 to 3 , no doubt are as represented to them by the
Crl. Appeal No. 1426/2003 : 33 :
deceased. In the normal course the above statement of
those witnesses should be hit by the rule of hearsay
evidence under Sec. 60 of the Evidence Act. Clause (1) of
Sec. 32 (1) of the Evidence Act is one of the well known
exceptions to the above rule . When the statement is made
by a person either as to cause of death, or as to any of the
circumstances of the transaction which resulted in his
death, in cases in which the cause of that person’s death
comes into question, such statements are relevant whether
the person who made them was or was not at the time
when they were made, under expectation of death, and
whatever may be the nature of proceeding in which the
cause of his death comes into question. The words “any of
the circumstances of the transaction which resulted in his
death” occurring in Sec. 32 (1) of the Evidence Act have
been placed under a wide canvass by the Apex Court in
Patel Harilal Joitaram v. State of Gujarat – 2001 AIR
SCW 4411.
Crl. Appeal No. 1426/2003 : 34 :
The words “statement as to any of the circumstances” are by
themselves capable of expanding the width and contours of the scope
of admissibility. When the word “circumstances” is linked to
‘transaction which resulted in his death, the sub-section casts the net
in a very wide dimension. Anything which has a nexus with his death,
proximate3 or distant, direct or indirect, can also fall within the
purview of the sub-section. As a possibility of getting the maker of the
statements in flesh and blood has been closed once and for all the
endeavour should be how to exclude it therefrom. Admissibility is
the first step and once it is admitted the court has to consider the
court has to consider how far it is reliable. Once that test of reliability
is found positive the Court has to consider the utility of that statement
in the particular case.
Judged by these standards it cannot be said that the statements
of PWs 1 to 3 regarding the torments which Jaseera had to put
up with in her matrimonial home to resist the demand for more
money do not qualify the test of admissibility as well as
reliability as has been laid down by the Apex Court in the above
decision. I have no hesitation to conclude that the court below
was justified in holding that Jaseera Beevi who died within two
months of her marriage was subjected to cruelty or harassment
by her husband for or in connection with a demand .
The prosecution has been able to make out the guilt of the
accused beyond reasonable doubt. The conviction recorded by
the court below, therefore does not call for any interference.
Crl. Appeal No. 1426/2003 : 35 :
24. The sentence imposed on the appellant also
cannot be said to be excessive having regard to the fact that the
court below has only imposed the mandatory minimum. I,
therefore, confirm the sentence as well.
The result of the foregoing discussion is that this appeal
is without merit and is, accordingly, dismissed confirming the
conviction entered and the sentence passed against the
appellant.
Dated this the 16th day of October, 2009
V.RAMKUMAR, JUDGE
sj