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Judgment
T. Jayarama Chouta, J.—The three appellants were accused Nos. 1 to 3 in Sessions Case No. 17 of 1991 on the file of the learned Sessions Judge at Pudukottai. They have been tried for the offence punishable u/s 498-A and 304-B IPC. and were found guilty of both the charges and were convicted and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.500/-, in default of payment of fine, to undergo further rigorous imprisonment for three months, and 7 years rigorous imprisonment respectively with the further direction that the above sentences to run concurrently. This conviction and sentence have been challenged in this Criminal Appeal.
The prosecution case in brief is as follows:
Accused No.2 is the mother of accused Nos.1 and 3. Accused No.3 is the elder brother of accused No.1. Accused No.1 had married one Madhavi, the deceased in this case on 27.6.1988. P.W.I is the father of deceased Madhavi and P.W.2 is the cousin brother of P.W.I who arranged the said marriage. The accused immediately after the marriage started demanding dowry in the form of Motor Cycle and jewels from the parents of the deceased. There used to be petty quarrels between the accused and the deceased Madhavi and the deceased Madhavi was sent to her parents house on two or three occasions and every time she was sent back by her parents to the house of the accused. On 1.5.1990, the deceased had given a complaint before P.W.6 who was working as a constable attached to the Dowry Prohibition Cell, Pudukottai complaining against her husband and her in-laws regarding the dowry and harassment. P.W.6 registered the said petition in No.35 ADC/90 and an entry was made in the General Diary. However, the M.1.A. of that area settled the matter between the parties and hence the said case was closed. In the said panchayat, it was decided that the said demand of the accused should be met by the parents of deceased during the Deepavali. Accordingly, the deceased Madhavi was sent to the house of the accused.
On 1.6.1990 P.W.8 went to the house of the accused at about 10:00 a.m. to invite them for his cousin sister''s marriage. At that time, he noticed the deceased Madhavi in the house of the accused. There was a dispute between the first accused and the deceased regarding attending the marriage of the cousin sister of P.W.8, in his presence. It is the further case of the prosecution that on that name day between 11.30 and 1.30 pm. deceased Madhavi consumed insecticide poisonous substance and because of the said consumption she died near a temp. P.W.I, the father of the deceased given a complaint as per Ex.P.1 in which he has stated that the death of his daughter was unnatural. On the basis of the complaint given by P.W.I before P.W.16, the Sub Inspector of Police, Veenumbakudi Police Station on 2.6.1990 at 8:00 p.m. sent requisition to P.W.14, the Revenue Divisional Officer attached to Pudukottai to hold an enquiry since the death of Madhavi took place within seven years of her marriage. According to P.W.14 he held inquest on 2.6.1990 at about 1.30 pm. as per Ex.P.13 in the presence of witnesses. He recorded the statement of the first accused as per Ex.P.14. He has also recorded the statement of P.W.I and other witnesses. He made arrangement for conducting the postmortem examination of deceased Madhavi. P.W.I3, the doctor who was attached to the Government Hospital of Allangudi on receipt of the requisition from P.W.14 through P.W.I2 a Police Constable conducted the autopsy at 11:00 a.m. on 3.6.1990. He has furnished his opinion after obtaining the chemical analysis report that the deceased would appear to have died of consuming Organo Phosphorus (Dimethoate) an poisonous insecticide 40 to 45 hours prior to postmortem examination. He issued certificate Ex.P.1 1. After conducting the enquiry P.W.14 R.D.O. submitted his report as per Ex.P.16.
P.W.I7, the Sub Inspector of Police of Alangudi Police Station, took up further investigation on 2.6.1990 and visited the scene of occurrence and prepared observation mahazar as per Ex.P.6 in the presence of P.W.I 1, and has also drawn rough sketch Ex.P.22. He recorded the statement of some witnesses and on receipt of the report from P.W.14, he altered the Section from 174 Cr.P.C. to 304-B and 498-A IPC, and prepared express report as per Ex.P.25 and forwarded the same to superiors as well as to the Court. P.W.I8, the Deputy Superintendent of Police of Karambakudi took up investigation on 4.6.1990 and visited the scene of occurrence and recorded the statement of P.Ws.3, 5, 9 and other witnesses. On 6.6.1990 he examined P.Wsl, 2, 7, 8, 10 and 11. He also recorded the statement of Venkatachalam, the former M.1.A. who conducted the panchayat on 13.6.1990. He arrested all the three accused at 8:15 a.m., at Vandanviduthi and set them form and. He received the postmortem certificate and the report of the chemical analysis. He has been transferred and the said case was taken up by P.W.19 another Deputy Superintendent of Police who conducted further investigation and recorded the statements of few witnesses. After completing investigation and after obtaining the opinion from the Additional Public Prosecutor is submitted a charge sheet against the accused for offences punishable u/s 498-A and 304-B IPC.
The said case was committed before the Sessions Judge at Pudukottai by the Judicial Magistrate No.2, Pudukottai. After committal, the learned Sessions Judge framed charges u/s 498A and 304B of the Indian Penal Code against all the accused. The accused pleaded not guilty. On behalf of the prosecution, P.Ws.1 to 19 were examined and Exs. P.1 to P.23 were got marked and M.Os. 1 to 10 were produced. On behalf of the accused, three defence witnesses were examined. The plea of the accused was one of total denial. The learned Sessions Judge after conclusion of the trial and after examining the accused by putting all the incriminating circumstances which were against them in their statement u/s 313 Cr.P.C. convicted and sentenced them as mentioned above.
I heard the learned advocate for Mr. S. Shunmugavelayutham on behalf of the appellants and the Government Advocate on behalf of the respondent. They took me through the material evidence and the relevant documents. The learned advocate for the appellant submitted that the Court below was not justified in convicting the appellants for the offences punishable u/s 498-Aand 304-B IPC, on the basis of the evidence of P.Ws.1 and 2. He has further pointed out that there was no material produced by the prosecution to show that the deceased Madhavi was being ill-treated by the accused for the dowry and because of the said harassment she committed suicide by consuming poisonous substance. He has further submitted that the prosecution witnesses No.3, 4 and 5 were the neighbours of the accused who have supposed to speak regarding the ill-treatment matted out by the deceased, did not support the prosecution case. According to the learned Advocate for the appellant there was no ill-treatment and infact the deceased Madhavi was treated well by the accused as could be seen from the evidence of D.Ws.1 to 3. He pointed out that the learned Sessions Judge was not correct in discarding the evidence of D.Ws.1 to 3 and believing the version given by P.Wsl and 2, to convict the appellants, for the offence u/s 498A and 304-B of the Indian Penal Code. However, the learned Government Advocate submitted that the learned Sessions Judge was justified in placing reliance on the evidence of P.Ws.1, 2, 6, 7 and 10 to hold that there was ill-treatment to the deceased by the accused regarding the dowry. He has also further pointed out that because or this ill-treatment, the deceased Madhavi on 1.6.1990 between 11:30 and 1:30 p.m. consumed poisonous insecticide which caused her death and hence the learned Sessions Judge was justified in convicting the appellant for the offence u/s 498-A and 304-B IPC. Healso submitted that the judgment of the learned Sessions Judge does not suffer from any legal infirmity. On these grounds he pointed out that there is no merit in this appeal and the appeal is liable to be dismissed.
It was not disputed before the trial Court that Madhavi died by consuming Organo Phosphorus insecticide poison prior to postmortem as spoken to by P.W.13, the doctor and the postmortem certificate Ex.P.1l issued by him. The prosecution has placed reliance on the evidence of P.Ws.1, and 2 to hold that the appellants were treating the deceased cruelly and the said harassment is with a view to coercing her to meet the demand for jewels as well as the motor bike. P.W.I is non of the than the father of the deceased Madhavi. He has stated in his evidence that his daughter Madhavi used to complained to him that the first accused was harassing her and was demanding jewels as well as the motor cycle. Similar is the evidence of P.W.2, who is the cousin brother of P.W.I who had arranged the marriage between the first accused and Madhavi. He has also given evidence that the deceased was complaining that the accused were harassing and demanding down. P.Ws.3 ta 5 who were the neighbours of the accused have been examined for the same purpose. But they have not supported the prosecution case. P.W.6 is a constable attached with the Dowry Prohibition Cell, Pudukottai. He has given evidence that on 1.5.1990 when he was in the office, the deceased Madhavi came to him and gave a complaint against her husband and her father-in-law with regard to the harassment given to her by demanding down. He has registered the said petition in No.35 ADC/90 and made an entry in the General Diary. But by the intervention of the then M.1.A., since the matter was settled, no further action was taken on the said petition. P.W.7 is the panchayatdar who deposed before the Court that on the intervention of Venkatachalam the former M.1.A., the dispute between the accused and the deceased was settled some 15 days prior to the occurrence and they decided that the demand of the accused should be complied with by the parents of the deceased at the time of Deepavali and afterwards they resided peacefully. P.W.8 is the relation of deceased Madhavi who speaks about the presence of deceased on 1.6.1990 at about 10:00 a.m. when he had gone to the house of the accused to deliver the marriage invitation of his cousin sister. He has deposed that there was some exchange of words between accused No.1 and deceased Madhavi, at that time he was not knowing for what purpose the exchange took place. A suggestion was put to this witness that the deceased wanted to attend the marriage immediately, but the accused No.1 told her only after obtaining permission from the other accused she can proceed to the marriage. Anyway it does not pertain to the demand of dowry or harassment on account of dowry. From the evidence of these witnesses it is clear that the accused were ill-treating the deceased by demanding the dowry. However, there is no material collected by the prosecution to show that even after the panchayat were in the parties have agreed to settle their dispute during Deepavali, there was ill-treatment by the accused to the deceased. P.W.I even though has stated that even after the panchayat there used to be ill-treatment by the accused to the deceased, but he had admitted in cross examination that during that period he has not visited the house of the accused where the deceased was residing. It was not the case that he has been informed by the deceased either through somebody or through correspondent that she was being ill-treated. Hence I do not attach much importance to the statement of their witness that even after the panchayat the accused were ill-treating the deceased. The above materials collected by the prosecution are sufficient to hold that the deceased Madhavi was being ill-treated by the accused. So I Have to hold that the learned Sessions Judge was justified in convicting the appellants for an offense punishable u/s 498A IPC.
Now coming to the charge u/s 304-B IPC, is concerned, I see that there was no material produced by the prosecution to show that soon before her death, the deceased Madhavi was subjected to cruelty or harassment by her husband or any relative of her husband for or in connection with any demand for dowry. Admittedly there was a panchayat held between the accused and the parents of the deceased in which both parties have greed that he demand of the accused should be had by the parents of the deceased during Deepavli period. As mentioned above, there is no convincing material to show that after the panchayat which was held on 22.5.1990 till her death on 1.6.1990 there is any material to show that accused had ill-treated or harassed, the deceased for or in connection with any demand for dowry. In this connection the learned advocate Mr. Shunmugavelayutham has invited my attention to a decision reported in Sham Lal Vs. State of Haryana, In the said decision, the Supreme Court has observed in paragraph-11 as follow:-
It is imperative, for invoking the aforesaid legal presumption, to prove that ''soon before her death" she was subjected to such cruelty or harassment. Here, what the prosecution achieved in proving at the most was that there was persisting dispute between the two sides regarding the dowry paid or to be paid, both in kind and in cash, and on account of the failure to meet the demand for dowry, Neelam Rani was taken by her parents to their house about one and a half years before her death. Further evidence is that an attempt was made to patch up between the two sides for which a panchayat was held in which it was resolved that she would go back to the nuptial home pursuant to which she was taken by the husband to his house. This happened about ten to fifteen days prior to the occurrence in this case. There is nothing on record to show that she was either treated with cruelty or harassed with the demand for dowry during the period between her having been taken to the parental home and her tragic end.
The Supreme Court after considering Section 113-B of the Evidence of Act has observed as above. Section 113-B of the Evidence Act reads as follows:-
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
In the absence of any such evidence it is not permissible to take recourse to the legal presumption envisaged in Section 113-B of the Evidence Act. That rule of evidence is prescribed in law to ovate the prosecution of the difficulty to further prove that the offence was perpetrated by the husband, as then it would be the burden of the accused to rebut the presumption. In the present case, the prosecution case proved that the death of Madhavi took place with seven years of her marriage. Similarly that her death was caused by consuming poisons insecticide is also proved. But as far as the ingredient that soon before her death she was subjected to cruelty or harassment for or in connection with the demand for dowry is lacking. According to me, the prosecution has failed to produce sufficient materials. It has come in the evidence of prosecution witnesses themselves that there was a panchayat between the accused family and the family of the deceased in which they have come to terms that the demand of the accused must be net by the parents of the deceased during Deepavali time. This panchayat had taken place 15 days prior to the date of her death. There is no material to show during that period the accused were harassing the deceased to as to commit suicide by her. Under those circumstances. I am of the opinion that the decision cited by the learned advocate for the appellants will clearly apply to the facts of the present case. Accordingly, the conviction and sentence passed by the learned Sessions Judge u/s 304-B I.P.C. are set aside.
After reassessing the entire evidence, I set aside the conviction and sentence passed by the learned Sessions Judge u/s 304-BIPC, but I confirmed the conviction and sentence imposed on the appellants u/s 498-A IPC. With the above modification, the Criminal Appeal is disposed of.