{"id":110296,"date":"2002-11-15T00:00:00","date_gmt":"2002-11-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mahendran-vs-state-rep-by-on-15-november-2002"},"modified":"2015-09-24T07:37:55","modified_gmt":"2015-09-24T02:07:55","slug":"mahendran-vs-state-rep-by-on-15-november-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mahendran-vs-state-rep-by-on-15-november-2002","title":{"rendered":"Mahendran vs State Rep. By on 15 November, 2002"},"content":{"rendered":"
Madras High Court<\/div>\n
Mahendran vs State Rep. By on 15 November, 2002<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDated: 15-11-2002\n\nCoram\n\nThe Honourable Mr.Justice M. KARPAGAVINAYAGAM\n\nCRIMINAL APPEAL No.776 of 1995\n\n\n1. Mahendran\n2. Endammal                                                     ..Appellants\n\n\n-Vs-\n\nState rep. by\nInspector of Police,\nGudimangalam Police Station,\nCoimbatore District.                                    ..Respondent\n\n\n        Criminal Appeal against the judgment dated 18.9.1995 made  in  S.C.No.\n122  of  1990  on  the  file  of  the  Court  of the Assistant Sessions Judge,\nUdumalpet, Coimbatore District.\n\n\n!For Appellants :  Mr.  K.  Mohan Ram\n\n^For Respondent :  Mr.  O.  Srinath,\n                Govt.  Advocate.\n\n:J U D G M E N T\n<\/pre>\n
        Mahendran, the son and Endammal, the mother  were  convicted  for  the
\noffences under Section 4 of the Dowry Prohibition Act and under Sections 498-A
\nand 304-B of  I.P.C.    and  each  sentenced  to  undergo R.I.  for ten years.
\nChallenging the same, they have filed this appeal.\n<\/p>\n
        2.  The case of the prosecution in brief is as follows: “(a)       The
\ndeceased  Velumani  got  married  to the first appellant Mahendran in the year
\n1984.  Dr.Natarajan, P.W.1  is  her  brother  working  as  a  Professor  in  a
\nGovernment College.  At the time of marriage, 20 sovereigns of gold jewels and
\nother articles  were  provided  as  Seervarisai to her.  Out of the wedlock, a
\nfemale child was born.\n<\/p>\n
        (b) The deceased Velumani was staying  with  her  husband,  the  first
\nappellant  as  well  as  with  her  mother-in-law,  the  second  appellant and
\nfather-in-law.  Not satisfied with the dowry already provided, the  appellants
\nharassed  the  deceased  asking  her  to get some more jewel and also to get a
\nMoped from her parents.  At the request of the deceased, P.W.1 and his parents
\ngave some more jewels and also money for purchase of Moped.\n<\/p>\n
        (c) Even then, the torture continued demanding more money and  jewels.
\nUnable  to  bear  the torture, the deceased Velumani lodged a police complaint
\nagainst her husband and her  mother-in-law,  the  appellants  on  3.9.1985  to
\nP.W.16 Sub  Inspector of Police at Peelamedu Police Station.  The complaint is
\nEx.P7.  Ultimately, both the parties agreed to settle the matter and  made  an
\nendorsement of compromise in Ex.P8.\n<\/p>\n
        (d) Thereafter,  they  lived  together.    Even  then,  the harassment
\ncontinued.  About this harassment, the deceased used to complain to P.W.1  and
\nP.W.4 Ranganathan,  her  brothers.  Even when she was pregnant, she was driven
\nout from the matrimonial home asking for more jewels.  The  deceased  went  to
\nthe  house  of P.W.1 and after birth of the child, the accused demanded jewels
\nfor the child as well as cash.  Due to these happenings,  P.W.1’s  mother  was
\nhospitalised and ultimately, she died on 17.8.1988.  Even after this incident,
\nthe harassment at the hands of the appellants continued.\n<\/p>\n
        (e) On 25.9.1988 early morning, the deceased Velumani along with her 9
\nmonths  old  child  went  to the nearby well and jumped into it for committing
\nsuicide.  On hearing the sound, P.W.2 Ramachandran who is residing nearby  got
\ninto  the  well  and was able to save only the child, but Velumani got drowned
\nherself and died.  The messages were sent to P.W.1 and P.W.4, the brothers  of
\nVelumani.\n<\/p>\n
        (f)  P.W.1  and  others came to the house of the accused and on seeing
\nthe dead body of the deceased, went and gave the complaint  Ex.P1  to  P.W.19,
\nthe Deputy  Superintendent of Police.  The complaint was originally registered
\nfor the offence under Section 174 Cr.P.C.  First appellant also gave complaint
\nand the same was registered under section 17 4  Cr.P.C.    Then,  P.W.18,  the
\nExecutive Magistrate held the inquest and submitted his report Ex.P11.  P.W.19
\nD.S.P.  took up further investigation.\n<\/p>\n
        (g)  In  the  meantime,  D.W.1,  the  Sub  Collector  also conducted a
\nseparate enquiry and submitted his report stating that the death  was  due  to
\ndowry torture.   Continuing  the  investigation, P.W.19 D.S.P.  examined other
\nwitnesses.  P.W.20 another D.S.P.  took up further investigation and filed the
\ncharge sheet against both the accused under Section 4 of the Dowry Prohibition
\nAct and under Section 498-A I.P.C.”\n<\/p>\n
        3.  The Sessions Court  on  considering  the  materials  available  on
\nrecord,  framed  the  charges  for  the  offences under Section 4 of the Dowry
\nProhibition Act and under Sections 498-A and 304-B of I.P.C.\n<\/p>\n
        4.  On the side of prosecution, P.Ws.1 to 20 were examined, Exs.P1  to
\nP12 were  marked.  On the side of defence, D.W.1 was examined and Exs.X1 to X3
\nwere marked.\n<\/p>\n
        5.  Originally, the trial Court acquitted the  accused.    Challenging
\nthe  same, the first informant P.W.1 Dr.Natarajan filed a revision before this
\nCourt.  After hearing the counsel for the parties, this Court  on  considering
\nthe  materials  available  on  record,  remitted  back  the  matter  for fresh
\nconsideration.  After remittal, the accused examined one  Srinivasa  Naidu  as
\nD.W.2.   Ultimately,  the  trial  Court convicted the accused for the offences
\nunder Section 4 of the Dowry Prohibition Act  and  under  Sections  498-A  and
\n304-B of I.P.C.\n<\/p>\n
        6.   Challenging this conviction, the counsel for the appellants would
\nstrenuously argue that Section 4 of the  Dowry  Prohibition  Act  and  Section
\n304-B of  I.P.C.    would  not  get attracted, since there is no material that
\nthere was a torture with reference to the  demand  of  dowry,  that  too  soon
\nbefore the  death.    He  would  further  contend that the evidence adduced by
\nprosecution is not consistent so as to attract the offence under Section 498-A
\nI.P.C.  as well and therefore, the appellants are liable to be acquitted.\n<\/p>\n
        7.  In order to substantiate his plea, the counsel for the  appellants
\nwould  take  me  through the entire evidence and cite the decisions in RAMAIAH
\nAND OTHERS v.  STATE BY KARAMBAKUDI POLICE STATION (1999(1) L.W.  (Crl.)  127)
\nand SHAM LAL  v.   STATE OF HARYANA<\/a> (1997(9) S.C.C.  7 59), wherein this Court
\nas well as the Supreme Court, while dealing with the cases of conviction under
\nSections 304-B and 498-A I.P.C., acquitted the accused in respect  of  Section
\n304-B I.P.C., though confirmed the conviction under Section 498-A I.P.C.\n<\/p>\n
        8.   On  the other hand, the learned Government Advocate by citing the
\nfollowing decisions would strenuously contend that the materials available  on
\nrecord  would  satisfy  the  ingredients  of all the offences and as such, the
\nconviction and sentence imposed by the trial Court against both the appellants
\nare perfectly justified:\n<\/p>\n
        1) SHANTI v.  STATE OF HARYANA (1991 S.C.C.  (Cri)191);\n<\/p><\/blockquote>\n
        2) STATE OF H.P.  v.  NIKKU RAM (A.I.R.1996 S.C.67)<\/a>;\n<\/p><\/blockquote>\n
        3) VENUGOPAL v.  STATE OF KARNATAKA<\/a>(A.I.R.1999 S.C.146);\n<\/p><\/blockquote>\n
        4) KANS RAJ v.  STATE OF PUNJAB<\/a> (2000 S.C.C.(Cri)935);\n<\/p><\/blockquote>\n
        5) SATVIR SINGH v.  STATE OF PUNJAB<\/a> (2002 S.C.C.(Cri)48.<\/p><\/blockquote>\n
        9.  I have carefully considered the submissions made by the respective
\ncounsel and gone through the entire records.\n<\/p>\n
        10.   According  to   prosecution,   the   appellants,   husband   and
\nmother-in-law  respectively,  continuously tortured the deceased from the year
\nof marriage, namely 1984 over dowry demand and even though the  complaint  was
\ngiven  by  the  deceased  against  both of them regarding dowry torture to the
\npolice in 1995 and the same ended in compromise,  the  illegal  dowry  demands
\nwere  continued  and even after the birth of a female child 9 months ago, both
\nof them tortured the deceased demanding more cash  and  jewels  as  dowry  and
\nunable  to  bear  the torture meted out to her at the hands of the appellants,
\nthe deceased along with her 9 months old female child  jumped  into  a  nearby
\nwell  for  committing  suicide  and the child alone was rescued alive, but the
\ndeceased died in the well due to drowning.\n<\/p>\n
        11.  The main plank of the arguments by the counsel for the appellants
\nis that after the compromise was entered into between the parties as per Ex.P8
\non 3.9.1985, there was no dowry torture, according to the  witnesses  examined
\nby the prosecution and as such, the offence under Section 304-B I.P.C.  is not
\nmade  out, in view of the fact that the main ingredient of dowry torture ‘soon
\nbefore the death of the deceased’ is conspicuously  absent.    When  the  said
\ningredient  is absent, the presumption under Section 113-B of the Evidence Act
\nwould not arise and as such, the burden never shifts on the accused  to  rebut
\nthe  said presumption and consequently, the accused are liable to be acquitted
\nfor the offence under Section 4 of the Dowry Prohibition Act and under Section
\n304-B of I.P.C.  He would further contend that the demands stated to have been
\nmade by the accused would not be construed  to  be  dowry,  as  it  would  not
\nsatisfy  the  definition  of dowry and even assuming that it is a dowry, P.W.5
\nwould state that all the demands were met and as such, there is no material to
\nshow that the torture continued due to the dowry demand.\n<\/p>\n
        12.  Before dealing with this contention in the light of the materials
\navailable in this case, let us first refer to the relevant provisions in order
\nto appreciate the said contention.\n<\/p>\n
        13.  Section 304-B I.P.C.  reads as follows:\n<\/p>\n
        “304-B.  Dowry death.–(1) Where the death of a woman is caused by any
\nburns or bodily injury or occurs otherwise  than  under  normal  circumstances
\nwithin  seven years of her marriage and it is shown that soon before her death
\nshe was subjected to cruelty or harassment by her husband or any  relative  of
\nher husband for, or in connection with, any demand for dowry, such death shall
\nbe  called “dowry death”, and such husband or relative shall be deemed to have
\ncaused her death.\n<\/p>\n
        Explanation.– For the purposes of  this  sub-section,  “dowry”  shall
\nhave the same meaning as in Section 2 of the Dowry Prohibition Act, 19 61.\n<\/p>\n
        (2) ….  ”\n<\/p>\n
        14.   The  above  section lays down that where the death of a woman is
\ncaused by any burns or bodily injury or occurs  otherwise  than  under  normal
\ncircumstances  within  seven  years  of her marriage and it is shown that soon
\nbefore the death of the woman she was subjected to cruelty  or  harassment  by
\nher  husband  or his relations for or in connection with any demand for dowry,
\nsuch death shall be called “dowry death”.   As  per  the  explanation  to  the
\nsection,  the  meaning of the dowry has been defined in Section 2 of the Dowry
\nProhibition Act.  This is as follows:\n<\/p>\n
        “2.  Definition of “dowry”.– In this Act, “dowry” means any  property
\nor valuable security given or agreed to be given either directly or indirectly\n<\/p>\n
—\n<\/p>\n
        (a) by one party to a marriage to the other party       to         the
\nmarriage; or\n<\/p>\n
(b) by the parents of either party to a marriage                or   by    any
\nother person, to either party to                the  marriage  or to any other
\nperson.\n<\/p>\n
        at or before or any time after the marriage             in  connection
\nwith the marriage of the said   parties, but does not include dower or mahr in
\n                the case of persons to whom the Muslim Personal
\n        Law (Shariat) applies.”\n<\/p>\n
        15.  Keeping in view the object of these sections, a new Section 113-B
\nwas  introduced  in the Evidence Act to raise a presumption as to dowry death.
\nIt reads as under:\n<\/p>\n
        “113-B.  Presumption as to dowry death.– When the question is whether
\na person has committed the dowry death of a woman and it is  shown  that  soon
\nbefore  her  death  such woman had been subjected by such person to cruelty or
\nharassment for, or in connection with, any demand for dowry, the  court  shall
\npresume that such person had caused the dowry death.\n<\/p>\n
        Explanation.–For  the  purpose  of  this section, “dowry death” shall
\nhave the same meaning as in Section 304-B of the Indian Penal Code.”\n<\/p>\n
        16.  In order to seek a conviction against a person for the offence of
\ndowry death, the prosecution is obliged to prove the following essentials:\n<\/p>\n
        (1) The death of a woman should be caused by burns or   bodily  injury
\nor otherwise than under normal  circumstances;\n<\/p>\n
        (2) Such death should have occurred within seven years  of         her
\nmarriage;\n<\/p>\n
        (3) She must have been subjected to cruelty or  harassment   by    her
\nhusband or any relative of her  husband;\n<\/p>\n
        (4) Such cruelty or harassment should be for or in      connection
\nwith demand for dowry; and
\n        (5) To such cruelty or harassment the deceased should   have      been
\nsubjected soon before her death.\n<\/p>\n
        17.   As  and  when  the  aforesaid  essentials  are  established,   a
\npresumption  of dowry death shall be drawn against the accused under Section 1
\n13-B of the Evidence Act.  It has to be kept in mind  that  presumption  under
\nSection 113-B is a presumption of law.\n<\/p>\n
        18.   No  presumption under Section 113-B of the Evidence Act would be
\ndrawn against the accused, if it is  shown  that  after  the  alleged  demand,
\ncruelty  or harassment the dispute stood resolved and there was no evidence of
\ncruelty and harassment thereafter.  However, mere lapse of some time by itself
\nwould not provide to an accused a defence, if the course of  conduct  relating
\nto  cruelty or harassment in connection with the dowry demand is shown to have
\nexisted earlier in time not too late and not to stale before the date of death
\nof the woman.\n<\/p>\n
        19.  “Soon before”  is  a  relative  term  which  is  required  to  be
\nconsidered under specific circumstances of each case.  No straitjacket formula
\ncan be  laid  down by fixing any time-limit.  This expression is pregnant with
\nthe idea of proximity test.  These words would imply that the interval  should
\nnot be  too  long  between the time of making the statement and the death.  It
\ncontemplates the reasonable time which has to  be  understood  and  determined
\nunder the peculiar circumstances of each case.\n<\/p>\n
        20.   In  relation  to  dowry  death,  the  circumstances  showing the
\nexistence of cruelty or harassment to the deceased are  not  restricted  to  a
\nparticular instance  but  normally refer to a course of conduct.  Such conduct
\nmay be spread over a period of time.  If the cruelty or harassment  or  demand
\nof  dowry  is  shown  to have persisted, it shall be deemed to be “soon before
\ndeath”.\n<\/p>\n
        21.  Proximate and live link between the effect of  cruelty  based  on
\ndowry  demand  and  the  consequential  death  is required to be proved by the
\nprosecution.  In other words, there should be a perceptible nexus between  her
\ndeath on the dowry-related harassment or cruelty inflicted on her.\n<\/p>\n
        22.  The  phrase “soon before her death” is an elastic expression.  It
\ncan refer to a period either immediately before her death or within a few days
\nor even a few weeks before it.  If the interval elapsed between the infliction
\nof such harassment or cruelty and her death is wide, the Court would be  in  a
\nposition  to  gauge  that in all probabilities the harassment or cruelty would
\nnot have been the immediate cause of her death.  It is hence for the Court  to
\ndecide, on the facts and circumstances of each case, whether the said interval
\nwas sufficient to satisfy the concept of “soon before her death”.\n<\/p>\n
        23.   In  the  light  of  the  above principles laid down in SHANTI v.
\nSTATE OF HARYANA (1991  S.C.C.(Cri)  191,  STATE  OF  H.P.    v.    NIKKU  RAM
\n(A.I.R.1996 S.C.67),  KANS RAJ<\/a> v.  STATE OF PUNJAB (2000 S.C.C.(Cri) 9 35) and
\nSATVIR SINGH v.  STATE OF PUNJAB<\/a> (2002 S.C.C.(Cri) 48), we have to see whether
\nall ingredients contemplated under Section 304-B I.P.C.  have been satisfied.\n<\/p>\n
        24.  P.W.1 Natarajan  and  P.W.4  Ranganathan  are  the  residents  of
\nAavarampalayam.   The  deaceased  was  staying  along  with  the  husband  and
\nmother-in-law at Kallapalayam.  On getting the information that  the  deceased
\ndied  by  falling into a well situate nearby to the house of the accused, both
\nof them along with the relatives went to the scene and enquired the  residents
\nof  the  village  and came to know that she was tortured by the first accused,
\nresulting in her committing suicide.  P.Ws.1 and 4  cannot  speak  about  what
\nactually  happened  in the village of the accused, as they belong to different
\nvillage.  However, both of them speak about the demand of dowry over which the
\ndeceased was tortured earlier.  According to them, at the  time  of  marriage,
\nthey  gave  jewels  and  cash and within two months, the deceased came back to
\ntheir house and informed  them  that  the  accused  demanded  more  money  for
\npurchase of  Moped  and  other  things.  P.W.1 gave Rs.2,000\/- for purchase of
\nMoped, but even then, the torture continued demanding more money and jewels.\n<\/p>\n
        25.  Every time, P.Ws.1 and 4, the brothers used to  pacify  both  the
\ndeceased  and  the  first  accused  and  made them unite by trying to meet the
\ndemand made by the accused.  However, the deceased was driven out again by the
\nfirst accused asking for more  dowry.    Consequently,  the  deceased  gave  a
\ncomplaint Ex.P7 to P.W.16, the Sub Inspector of Police on 3.9.1985.  In Ex.P7,
\nit  has  been  specifically mentioned that the accused demanded the amount for
\nthe purchase of Moped and  after  beating  the  deceased,  the  first  accused
\nobtained  gold  chain  of 4 sovereigns from the deceased and sold the same and
\nagain she was driven out insisting  that  she  must  get  jewels  of  10  more
\nsovereigns.\n<\/p>\n
        26.   This  complaint was enquired into by P.W.16,the Sub Inspector of
\nPolice and both A1 and the deceased made an endorsement under Ex.P8 that  they
\nwould settle the matter among themselves and accordingly, the case was dropped
\nagainst the accused.    This  was  on  3.9.1985.    Thus, it is clear from the
\nevidence of P.Ws.1 and 4, the brothers, and P.  W.16 Sub Inspector  of  Police
\nthat  there  was  a demand of dowry and the complaint of dowry demand given to
\nthe police ended in compromise and consequently, both joined together.\n<\/p>\n
        27.  The first accused himself would  admit  in  Section  313  Cr.P.C.
\nstatement  that after the enquiry over the complaint, he pacified the deceased
\nand then took her to his house and again  continued  their  matrimonial  life.
\nAdmittedly, this was within one year after the marriage.\n<\/p>\n
        28.   There  is no dispute in the fact that the marriage took place on
\n3.6.1984.  The deceased died on 25.9.1988.   Therefore,  it  has  to  be  seen
\nwhether  the demand of dowry and torture over the same continued subsequent to
\nthe compromise entered into between them till her  death.    Admittedly,  even
\naccording  to the accused, when the deceased died, the child which was born to
\nthem was 9 months old.  According to P.  Ws.1 and 4, even  subsequent  to  the
\ncompromise,  the  demand of dowry in the form of cash and jewels was continued
\nand unable to bear the torture, the deceased would use to  come  back  to  the
\nparental home and collect the money from P.Ws.1 and 4 to satisfy the demand of
\nthe accused.\n<\/p>\n
        29.   This  evidence  has  been corroborated by P.W.5, residing in the
\nsame village, who is a friend of P.W.1’s family.  The evidence of P.W.5  would
\nreveal  that  even  after  the  compromise,  the deceased came to the house of
\nP.Ws.1 and 4 and received the cash and jewels and handed over the same to  the
\naccused.   According  to  P.W.5,  the  suffering over the dowry torture by the
\ndeceased had also made her mother to lay down in death bed and ultimately, she
\ndied on 17.8.1988.  Even after her death, some more amount  was  demanded  and
\nafter  all  the ceremonies were over, the deceased was sent to the matrimonial
\nhome along with money.  These things would show that the torture  as  well  as
\nthe demand of dowry had continued till her death.\n<\/p>\n
        30.   It  is  contended  by  the  counsel for the appellants that even
\nassuming that some cash and jewels were demanded, it cannot be construed to be
\ndowry demand, as it would not satisfy the requirements of definition of dowry.\n<\/p>\n
        31.  To meet the above contention, it is worthwhile to refer  to  some
\nof  the  observations  made  by  the Supreme Court in the decision reported in
\nA.I.R.1996 S.C.67 (supra):\n<\/p>\n
        “The definition as  amended  by  the  aforesaid  two  Acts  does  not,
\nhowever, leave any thing to doubt that demands made after the solemnization of
\nmarriage would  be  dowry.  This is because the definition as amended reads as
\nbelow:-\n<\/p>\n
        “In this Act “Dowry” means any property or valuable security given  or
\nagreed to be given either directly or indirectly–\n<\/p>\n
        (a) By one party to a marriage to the other party to the marriage; or\n<\/p>\n
        (b)  By  the  parents  of  either  party to a marriage or by any other
\nperson to either party to the marriage or to any other person;\n<\/p>\n
        at or before or any time after the marriage  in  connection  with  the
\nmarriage  of  the said parties, but does not include dower or mahr in the case
\nof person to whom the Muslim Personal Law (Shariat) applies.”\n<\/p>\n
        (Explanations omitted being not relevant)
\n        The aforesaid definition makes it  clear  that  the  property  or  the
\nvaluable security need not be as a consideration for marriage, as was required
\nto be  under  the unamended definition.  This apart, the addition of the words
\n“any time” before the expression “after the marriage” would clearly show  that
\neven if the demand is long after the marriage the same could constitute dowry,
\nif other requirements of the section are satisfied.”\n<\/p>\n
        32.   The  above  said  observation  would  clearly  indicate that any
\nproperty or valuable  security  demanded  as  a  dowry  even  long  after  the
\nmarriage, the same should the construed to be dowry as defined in the section.\n<\/p>\n
        33.  In  this regard, the evidence of P.W.2 assumes importance.  P.W.2
\nRamachandran is the beighbour of the accused.  According to him,  one  or  two
\nmonths  prior  to the occurrence when he asked the deceased as to the frequent
\nquarrels in her house, the deceased told him that she was  being  tortured  by
\nthe accused  asking  her  to  get  more  dowry  for the accused.  The relevant
\nportion of his evidence is as follows:\n<\/p>\n
        @ehd; ntYkzpaplk; mof;fo rz;il nghLfpwha; vd;W nfl;lnghJ.   khkpahUk;.
\nfztUk; jk;gp  tPl;ow;Fk;.    mz;zd;  tPl;ow;Fk;  ngha;  rPh;  th’;fp  th vd; W
\nbjhe;jut[ gz;qtjhf brhd;dhs;\/ ,J  rk;gtj;jpw;F  1.    2  khj’;fSf;F  Kd;  dhy;
\n,t;tpjkhf brhd;dhs;\/@
\n        (When  I  asked Velumani as to why you are quarrelling frequently, she
\ntold that her mother-in-law and husband were torturing her to go to the houses
\nof her brothers and get dowry from them.  She told like this  1  or  2  months
\nprior to the occurrence.)\n<\/p>\n
        34.   If the above statement is true, it is clear, as stated by P.Ws.1
\nand 4, that A1 was never satisfied even though both of them tried to meet  the
\ndemands as far as possible.\n<\/p>\n
        35.   According  to  P.W.6 Sarojini and P.W.8 Perumalsamy, the quarrel
\nwith the deceased by the first accused was a regular affair.  On the  date  of
\noccurrence, the  deceased  was beaten inside the house of the accused.  P.W.6,
\nthe sister of P.W.2 came out on hearing the sound of the deceased.  After  few
\nminutes, she went back to her house thinking that it was a routine quarrel.\n<\/p>\n
        36.  P.W.8 Perumalsamy, the father of P.W.2, who is another neighbour,
\nwould state  that  at about 7.00 a.m.  on the date of occurrence, he heard the
\nnoise from the house of the accused and found that  the  deceased  was  crying
\nasking the first accused not to beat her any more as it was paining.\n<\/p>\n
        37.   This  was  witnessed  by  P.W.9 Muthammal, another neighbour who
\nheard the sound of the deceased crying that she may not be  beaten  any  more.
\nBut  however, she did not enter into the house of the accused in order to help
\nher, since they happened to notice the quarrel and beating sound frequently.\n<\/p>\n
        38.  This would show that there was a consistent quarrel in which  the
\ndeceased  was  tortured  by the first accused, in the light of the evidence of
\nP.W.2, who stated that he was informed by the deceased herself  that  she  was
\nbeing harassed by the first accused demanding more dowry.\n<\/p>\n
        39.  As held by the Supreme Court in 2000 S.C.C.(Cri) 935 (supra), the
\nstatements  of  the  deceased  made to any person which are directly connected
\nwith or related to her death, the said statements  would  clearly  fall  under
\nSection  32  of  the  Evidence  Act and as such, it is admissible and the same
\nwould apply not only to the case of homicide, but also to the case of suicide.\n<\/p>\n
        40.  Under the above well laid proposition, the evidence of P.W.2  who
\nis  an  independent witness and also residing next to the house of the accused
\nwould clinchingly prove that the deceased  was  subjected  to  harassment  and
\ntorture continuously for long time over the demand of dowry.\n<\/p>\n
        41.  Regarding the falling into the well and committing suicide by the
\ndeceased  along  with  the female child, we have got the evidence of P.Ws.2, 3
\nand 6 to 9.  Their houses are situated very near to the house of the  accused.
\nThis is clear from the perusal of the observation mahazar Ex.P2.\n<\/p>\n
        42.   According  to  P.W.2, on hearing the sound, he went to the scene
\nand he was told that the deceased along with the child jumped into  the  well.
\nAt that  point  of  time,  the first accused was standing nearby.  Then, P.W.2
\nwith the help of a rope got into the well  and  attempted  to  save  both  the
\ndeceased and child.  However, he was able to rescue the child alone.\n<\/p>\n
        43.   This  evidence  has been supported by other witnesses, namely P.
\nWs.3 and 6 to 9.  Moreover, the evidence of these witnesses with reference  to
\nthis aspect  of  the  evidence  has never been challenged.  On the other hand,
\nD.W.2 Srinivasa Naidu who was examined on the  side  of  the  accused  himself
\nwould  state  that  the deceased jumped into the well along with the child and
\nP.W.2 got into the well and was able to rescue the child alone.\n<\/p>\n
        44.  According to the witnesses, the first accused did  not  make  any
\nattempt either to rescue the deceased and the child or to assist P.W.2 .  Next
\nday  only,  the  body  of  the  deceased  was  taken  out from the well on the
\ncomplaint Ex.P1 given by P.W.1, and the complaint Ex.P10 given  by  the  first
\naccused, the  case was registered under Section 174 Cr.P.C.  by P.W.17,the Sub
\nInspector of Police.\n<\/p>\n
        45.  P.W.18 Tahsildar conducted inquest next day  and  sent  a  report
\nEx.P11  stating  that the deceased committed suicide by jumping into the well.
\nIn the subsequent enquiry conducted by D.W.1 Sub  Collector,  D.W.1  sent  the
\nreport Ex.X1 stating that the deceased died in the abnormal circumstances.\n<\/p>\n
        46.   The above factors would make it obvious that the prosecution has
\nestablished that the deceased died in the abnormal circumstances by committing
\nsuicide and her death had occurred within seven  years  of  her  marriage  and
\nbefore  that,  the  deceased  was subjected to harassment by the first accused
\ndemanding dowry soon before her death, thereby made out the case under Section
\n304-B I.P.C.    Consequently, the  presumption  under  Section  113-B  of  the
\nEvidence Act has raised.\n<\/p>\n
        47.   This  presumption,  as  indicated above, is a presumption of law
\nwhereby the burden shifts on the first accused to rebut the said presumption.\n<\/p>\n
        48.  Let us now see whether such a presumption has been rebutted.\n<\/p>\n
        49.  The first document is the complaint which was given by the  first
\naccused to  P.W.17 Sub Inspector of Police.  He admitted that he gave the said
\ncomplaint to P.W.17.  In the said complaint, it has been  specifically  stated
\nthat  the  deceased  fell  into  the well on her own accord unable to bear her
\nstomach pain.  Strangely, this defence has never been put as suggestion to any
\nof the witnesses examined by the prosecution.  Similarly, this defence has not
\nbeen pleaded even when the accused were questioned under Section  313  Cr.P.C.
\nOn the  side  of the defence, D.W.2 Srinivasa Naidu was examined.  He has also
\nnot pleaded this defence.\n<\/p>\n
        50.  In this context, it is to be noticed that D.W.2 was not  examined
\nas  a  defence  witness  in  the  earlier trial which ended in the year 19 91.
\nAfter the order of remand passed by this Court, the accused examined the  said
\nwitness as  D.W.2  in the year 1995.  According to D.W.2, in the early morning
\nof 25.9.1988, the deceased picked up quarrel with Pappu,  a  woman  neighbour,
\nsince  she  developed illicit intimacy with her husband (A1) and when this was
\ninformed by A2 to A1, there was a quarrel and thereafter, the  deceased  along
\nwith the  child  fell  into  the well.  He himself would admit in his evidence
\nthat P.W.2 Ramachandran came to the scene and got into the  well  and  rescued
\nthe child.\n<\/p>\n
        51.   As  indicated above, this plea has never been suggested to P.W.2
\nin his cross-examination.  He also would admit that the houses of P.  Ws.2, 3,
\n6 and 7 are situated very near to the house of the accused.  He stated in  the
\ncross-examination that  he  mentioned this incident to Sub Collector.  But, it
\nwas never elicited from D.W.1 Sub Collector that such a statement was given by
\nD.W.2 Srinivasa Naidu to him.  On the other hand, D.W.1  would  state  in  his
\nreport Ex.X1 that death of the deceased was not due to the illicit intimacy of
\nA1 with Pappu, but it was only due to the dowry torture.\n<\/p>\n
        52.   There  was  no reason as to why the said Srinivasa Naidu (D.W.2)
\nwas not examined in the earlier trial.  Furthermore, the plea of  the  defence
\nmade  through  D.W.2  in  the  year  1995  before  the  trial  Court  is quite
\ncontradictory to the facts mentioned in Ex.P10, the  complaint  given  by  the
\nfirst accused in the year 1988, i.e.  on the date of occurrence, 25.9.1988.\n<\/p>\n
        53.  Even during the questioning under Section 313 Cr.P.C., his answer
\nto  the  question  No.4  is  not  consistent  with the contents of Ex.P10, his
\ncomplaint.  As per Ex.P10, he went to the garden on  25.9.1988  at  7.00  a.m.
\nand came back to the house and at that time, the deceased jumped into the well
\ndue to  her stomach pain.  No reference about the child was mentioned therein.
\nBut, in the statement under Section 31 3 Cr.P.C., he  said  that  on  2.9.1988
\nnight itself, he left the village for attending to his job and as such, he was
\nnot available  when  the occurrence had taken place.  But, according to D.W.2,
\nthe first accused was standing there, when the deceased along with  the  child
\njumped into the well.\n<\/p>\n
        54.   All  the  other  witnesses  who  were  present  at  the  time of
\noccurrence had stated that the first accused did not make any attempt to  save
\nthe deceased  and  child.    When  such  is  the  evidence  by the prosecution
\nwitnesses, the first accused must have explained as to why he did not make any
\nattempt to rescue the deceased and child.\n<\/p>\n
        55.  The only suggestion put to all the local  witnesses,  namely,  P.
\nWs.2,  3  and  6 to 9 that they wanted to get the land of the accused on lease
\nand they could not succeed and so, they became inimical towards them.\n<\/p>\n
        56.  This suggestion has no basis and the same has been rightly denied
\nby the witnesses.  If P.W.2 had any enmity with the accused family,  he  would
\nnot have made attempt to save both the deceased and child.  On the other hand,
\nD.W.2  himself  would admit that P.W.2 alone got into the well and rescued the
\nchild.  Even D.W.2 did not state anything about the enmity between the accused
\nfamily and the witnesses.\n<\/p>\n
        57.  As a matter of fact,  the  second  accused  would  state  in  her
\nstatement under  Section 313 Cr.P.C.  that P.W.8 Perumalsamy is her rpj;jg; gh
\n(junior paternal uncle).  Thus, it is clear that all these witnesses  are  not
\nonly  the  local  residents,  who  are  having the houses nearby, but also the
\nrelatives of the accused and as such, there is no necessity for them to  speak
\nfalsehood against  the  first  accused.    Hence,  it  has to be held that the
\npresumption, which has been drawn under Section 113-B of the Evidence Act  has
\nnot been rebutted.\n<\/p>\n
        58.   The  counsel  for  the  appellants  would  cite two authorities,
\nnamely, 1999(1) L.W.  (Crl.) 127(supra) rendered by  this  Court  and  1997(9)
\nS.C.C.  759  (supra).    In both these decisions, it has been held on facts by
\nthis Court as well as the Supreme Court that subsequent to the  compromise  in
\nthe  panchayat,  no  evidence  was let in by the prosecution to establish that
\ndowry torture continued thereafter and under those circumstances, the  accused
\nwere acquitted in respect of Section 304 -B I.P.C., though they were convicted
\nfor Section  498-A I.P.C.  But, those decisions would not apply to the present
\nfacts of the case, as, in my view,  as  indicated  above,  the  dowry  torture
\ncontinued on the deceased by A1 even after the compromise till her death.\n<\/p>\n
        59.  However, the evidence which is available on record with reference
\nto  the  complicity  of A2, the mother of A1, in my view, is not sufficient to
\nfind her guilty for the above offences.   P.Ws.1  and  2  would  make  general
\nallegation  with  reference  to  the demand not only against the mother-in-law
\n(A2), but also against the father-in-law, who  has  not  been  arrayed  as  an
\naccused.\n<\/p>\n
        60.   P.W.4,  another  brother  of  P.W.1  would  speak about A1 alone
\nregarding the dowry demand and torture.  P.W.5, a friend of P.W.1’s family did
\nnot implicate A2 at all.  P.W.2, who is the star witness in this  case,  would
\nstate  that  A1  was  simply standing near the well and A2 alone cried stating
\nthat her daughter-in-law had put a stone on head by  jumping  into  the  well.
\nP.W.3 also  would support this statement.  P.W.6, another neighbour had stated
\nthat there was frequent  quarrel  only  between  the  first  accused  and  the
\ndeceased.   Similarly,  P.Ws.8  and 9, the other neighbours would not refer to
\nthe presence of A2.\n<\/p>\n
        61.  Apart from this, on the complaint Ex.P7 given by the deceased  on
\n3.9.1985,  the  enquiry was conducted by P.W.16 Sub Inspector only with A1 and
\nthe deceased.  Both of them gave a letter Ex.P8 stating that they would settle
\nthe matter among themselves.  This would show that  A2  was  not  interrogated
\nwith  reference  to  the above complaint by the police as the deceased was not
\nserious against A2 with reference to the dowry torture.  All these things  put
\ntogether  would make it clear that the available materials would not prove the
\noffences for which A2 was tried.\n<\/p>\n
        62.   It  is  also  noticed  from  the  evidence  that   P.W.19,   the
\nInvestigating Officer handed over the female child Dhivya Prabha to A2, as the
\nrelative witnesses  of the deceased were not prepared to take the child.  Even
\nin the statement under Section 313 Cr.P.C., the second accused stated that the
\nchild Dhivya Prabha is with her.  Under those circumstances, A2 is  liable  to
\nbe acquitted.\n<\/p>\n
        63.   As far as A1 is concerned, the discussion made with reference to
\nthe materials available on record for the offence under Section  304-B  I.P.C.
\nwould  apply  to the other sections, namely Section 4 of the Dowry Prohibition
\nAct and Section 498-A of I.P.C.  also.\n<\/p>\n
        64.  As held by the Supreme Court in 1991 S.C.C.  (Cri)  191  (supra),
\nthough Sections  304-B  and  498-A  I.P.C.    deal with two distinct offences,
\n“cruelty” is a common essential to both  the  sections  and  if  the  same  is
\nestablished, then the accused can be convicted under both the sections, but no
\nseparate  sentence  need  be  awarded  under  Section  498A,  in  view  of the
\nsubstantive sentence being awarded for the major offence under Section 304-B.\n<\/p>\n
        65.  In this case, the trial Court sentenced the  accused  to  undergo
\nR.I.  for 10  years  for all the three offences.  This is wrong.  Section 4 of
\nthe Dowry Prohibition Act would provide for  the  maximum  punishment  of  two
\nyears R.I.  and  fine.    Section  498-A I.P.C.  would provide for the maximum
\npunishment of three years R.I.  and fine.  Only Section 304-B  I.P.C.    would
\nprovide for the punishment for a term which shall not be less than seven years
\nR.I.  and  which  may  extend  to  imprisonment  for  life.    Therefore,  the
\nimposition of 10 years R.I.  for each of the offences is wrong.\n<\/p>\n
        66.  Under those circumstances, the interest of justice would  be  met
\nby imposition of 7 years R.I.  being the minimum for the offence under Section
\n304-B I.P.C.    and  there  need not be any separate sentence for the offences
\nunder Section 498-A I.P.C.  and Section 4 of the Dowry Prohibition Act.\n<\/p>\n
        67.  In fine, the appeal in respect of the second  appellant  (A2)  is
\nallowed  setting  aside  the conviction and sentence imposed on her and she is
\nacquitted of all the charges.  The bail  bond  executed  by  her  shall  stand
\ncancelled.   The  appeal  in respect of the first appellant ( A1) is dismissed
\nconfirming his conviction and reducing the sentence from 10 years R.I.   to  7
\nyears R.I.   for  the  offence under Section 304 -B I.P.C.  The trial Court is
\ndirected to take steps to secure the custody of the first  appellant  (A1)  to
\nundergo the remaining period of sentence.  Thus, the appeal is partly allowed.\n<\/p>\n
15-11-2002
\nIndex:  Yes
\nInternet:Yes<\/p>\n
mam<\/p>\n
To\n<\/p>\n
1) The Assistant Sessions Judge, Udumalpet.\n<\/p>\n
2) -do- the Principal Sessions Judge, Coimbatore.\n<\/p>\n
3) The Public Prosecutor, High Court, Madras.\n<\/p>\n
4) The Inspector of Police, Gudimangalam Police, Station,
\nCoimbatore.\n<\/p>\n
5) The Superintendent, Central Prison for Women, Vellore.\n<\/p>\n
6) -do- Central Prison, Coimbatore.\n<\/p>\n
7) The District Collector, Coimbatore.\n<\/p>\n
8) The Inspector General of Police, Chennai-4.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Mahendran vs State Rep. By on 15 November, 2002 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-110296","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nMahendran vs State Rep. By on 15 November, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mahendran-vs-state-rep-by-on-15-november-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mahendran vs State Rep. 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