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Judgment
S. Palanivelu, J.—The essential facts of the prosecution case areas follows:
1(a) P.W. 1 is mother of the deceased by name Samshath Begum. P.W. 2 and 3 are sister and brother of the deceased respectively. The first
accused is the husband of the deceased Samshath Begum. 2nd and 3rd accused are brother and mother of the 1st accused respectively. The
marriage between the first accused and the deceased took place on 8.5.1997. The Jaw was set in motion by the complaint lodged by P.W. 1 in
Exhibit P-3 in which she has stated that at the time of marriage they gave their daughter 10 sovereigns of gold jewels, Rs. 30,000/- cash and other
household articles such as cot, almirah and also a plot situate in Kavcry Nagar, near Trichy Airport, that after the marriage, they came to know that
first accused was not affectionate towards his wife, that the accused demanded jewels and vehicle, that the matter was intimated to the superior
officials of first accused, who advised to take a separate house, that at one point of time, the first accused drove his wife from his house and that
P.W. 1 and when her daughter came to take medicine, he prevented them and locked the house and on 15.8.1998, they lodged a complaint
before the Women Police Station, Trichy and in the enquiry, the police advised him to take separate house, that on 31.12.1998 P.W. 1 came to
his daughter''s house and asked first accused, that he came after some time and abused her by stating who asked her to come to the house and to
go to her native place by bus and he went to the house without taking food, that her daughter told P.W. 1 that her husband told that even if he
were detained in jail for 7 years, he would not be bothered, that on 1.1.1999 at 6.00 p.m. she received a phone call from first accused that
Samshath Begum died and she came to H.A.P.P. quarters and found her daughter dead and hence necessary action may be initiated against first
accused.
1(b) On receipt of the information, the Sub-Inspector of Police P.W. 14 proceeded to the H.A.P.P. Quarters where he saw the lady deed with
burn injuries in Type-1 C-7 house which is in second floor. He got statement from P.W. 1 and registered a case in Cr. No. 1 of 1999 u/s 174 Cr.
P.C. Since the death occurred in one year and nine months from the date of marriage, he sent copy of F.I.R. to the R.D.O., Trichy, P.W. 16 and
he sent another copy of F.I.R. to Thiruvcrumbur Deputy Superintendent of Police P.W. 17. He again went to the place of occurrence, prepared
Observation Mahazar Exhibit P-5, Rough Sketch Exhibit P-10. He seized the plastic can of 5 litres capacity with kerosene, White colour urea bag
and a match box under cover of Mahazar Exhibit P-6. He also gave requisition to the Medical Officer, Trichy Government Hospital for conducting
Post Mortem. P.W. 16 R.D.O. after getting the F.I.R., proceeded to the scene of crime and directed to send the corpse to the Government
Hospital, Trichy for post mortem. He examined the witnesses and he held inquest over the dead body of the deceased and prepared Exhibit P-14
stating that the cause of the death may the demand of dowry by the accused.
1(c) He would say in his chief examination that the relatives of the deceased were again and again pressurising him to write in his report that she
died on account of harassment of demand of dowry by the accused and hence against his conscience he opined as such. He also says that the
District Collector also asked him to prepare the inquest as requested by the relatives of the deceased. However, he told that he might give opinion
as justifiable. P.W. 18 the District Collector has deposed that he did not advise P.W. 16 to act as per the request of the relatives of the deceased.
P.W. 15 Additonal Professor, attached to the Medical College Hospital, Trichy, conducted Post Mortem on the dead body of the deceased and
issued Exhibit P-11 Post Mortem Certificate. She sent the internal organs for toxicological examination. In Exhibit P-13, Toxicological Report it is
stated that six internal organs were examined, but poison was not detected in any of them. After perusing the toxicological report, the doctor gave
final opinion in Exhibit P-12 that the deceased would appear to have died due to the effects of Extensive Burns.
1(d) P.W. 17, the Deputy Superintendent of Police, got the F.I.R. and went to the scene of crime. After getting the report from the R.D.O. he
altered the case into one u/s 498(A) and 304(B) I.P.C. and examined the witnesses and recorded their statements. Acting on a tip off, he arrested
all the three accused in Trichy Airport and sent them for judicial custody. After completion of the investigation he filed charge sheet u/s 498(A) and
304(B) I.P.C. against all the three accused.
When the accused were examined u/s 313 Cr. P.C. with regard to the incriminating materials available against them, they denied complicity to the
offences. They neither examined any witness nor marked any document on their side. The Trial Court, after analyzing the evidence on record,
convicted all the three accused u/s 498(A) I.P.C. and sentenced the first accused to undergo Rigorous Imprisonment for three years and to pay a
fine of Rs. 3000/- in default to undergo imprisonment for six months; A2 and A3 were sentenced to under go R.I. for one year each and to pay a
fine of Rs. 1,000/- each in default to undergo imprisonment for three months, and A1 to A3 were acquitted of the charges u/s 304(B) I.P.C.
Aggrieved against the acquittal of the accused u/s 304(B) IPC, the State has preferred Crl. A. No. 647 of 2003 and the complainant/P.W. 1 has
preferred revision in Crl. R.C. (MD) No. 861 of 2004 and against the conviction u/s 498(A) IPC, the accused 1 to 3 have preferred appeal in Crl.
A. (MD) No. 454 of 2010.
Point for consideration:
Whether the prosecution has brought home the guilt of the accused under the charges framed beyond all reasonable doubt?
Point:
P.W. 1 is mother, P.W. 2 is sister and P.W. 3 is brother of the deceased Samshed Begum. She was married to the first accused on 8.5.1997.
2nd and 3rd accused are his brother and mother. It is alleged by the prosecution that the deceased was subjected to continuous cruelty
immediately after the marriage by the first accused. On 1.1.1999, she doused herself with kerosene, lit fire in the house of the first accused and
thereafter she succumbed to burn injuries in the hospital. P.W. 1 categorically narrates the events, stage by stage which took place aftermath the
marriage with reference to the cruelty perpetrated upon her daughter under demand of dowry. She says in her chief examination that even though it
was offered to give 30 sovereigns of gold jewels and Rs. 30,000/- cash at the time of marriage, apart from Seer Varisai articles, the relatives of the
accused received Rs. 30,000/- on the date itself and the first accused told that instead of 30 sovereigns it was sufficient to give 5 sovereigns and in
view of the balance of jewels a plot may be given to the deceased and hence, P.W. 1 and her family members had executed a registered
relinquishment deed with respect to a plot sprawling to an extent of 2400 sq. ft. situate near Trichy Airport, dated 28.4.1997, in favour of the
deceased under Exhibit P-1. For the bridegroom they gave 10 sovereigns of gold jewels.
She further adds that even after 7 days of marriage the deceased used to tell her that she was not happy, that the accused had been harassing
her stating that the jewels and cash provided were not enough, besides demanding a motor cycle and dining table. The third accused, the mother-
in-law of the deceased used to say that the ""Seer"" was not enough, that had she died she would marry some other girl to the first accused and the
first accused also told her to die after pouring kerosene and if she were dead, he would marry some other lady. She also told P.W. 1 that her
husband also used to bang her head against the wall and hence, she sustained head ache and that she was not provided with food.
Since the deceased was in depression on account of above said cruelty, P.W. 1 took her to Dr. Tajudeen (P.W. 13) and she was treated there
as inpatient for three days. After panchayat she was taken to the house of the accused. Then she was conceived. However, the family members of
the first accused disliked it and she was not allowed to take food. It was informed by the deceased to P.W. 1 over phone. P.W. 1 met her and
gave nutritious food, fruits and biscuits. The first accused was working in E.M. Section as Fitter in Heavy Alloy Penetrator Project, (Ministry of
Defence), Trichy, shortly known as H.A.P.P. There was an hospital in the factory and she was not taken to the infirmary by her husband and he
also did not include her name as dependent for the purpose of treatment.
The deceased was brought to her parents house after performing Valaikappu. She sent a letter Exhibit P-2 to the General Manager, H.A.P.P.
requesting him to include her name as wife of first accused and his nominee in all the official records stating that her husband did not take her to
hospital attached to the factory who failed to include her name as his wife and nominee and that he has developed intimacy with another girl and try
to marry her and include her name in the official records. On 12.3.1998 a girl baby was born to deceased. The friction was continuing and after
mediation she was taken to the husband/1st accused house. Even afterwards she was not even given proper food and the child was not provided
with proper nutrition. She was in the house of accused only for 20 days with her child and as she informed P.W. 1 that she was ill-treated, P.W. 1
brought her to her house. The child health card and the identity card for taking treatment in the hospital were in the house of the first accused. They
went there. But, both the second and third accused prevented them from entering to the house in addition to abusing them with words of
dishonour. The deceased alone went into the house. The first and second accused drove them from the house.
Two days later, the deceased lodged complaint Exhibit P-3 with the All Women Police Station, Trichy City on 13.8.1998. The police called the
parties and the deceased was sent with first accused after the understanding that he should search separate house for his parents and live with his
wife and child in H.A.P.P. Quarters. Exhibit P-4 is the letter of undertaking given by first accused to the inspector of police.
Even during the period when the deceased was living with her husband, he used to say that she had separated his parents from him and he did
not provide essential things to the house such as grocery etc., and she was also not given proper food. In December, the deceased called P.W. 1
over phone and he informed that her husband had not treated her happily. P.W. 1 asked her sons P.W. 3 Sahul Hameed and Syed Mustaffa to go
and meet the deceased. They met her and told P.W. 1 that the deceased was assaulted by her husband and her face was seen swelling. He also
told that the first accused demanded colour TV and Washing Machine.
The deceased also told P.W. 1 that she was ill-treated by the husband demanding the said articles. P.W. 1 incurred loan and purchased the
television and washing machine in Trichy Vasanth and Co. and she with P.W. 2 went to H.A.P.P. Quarters on 25.12.1998 and gave them to the
deceased. The deceased rang up on the next day and told P.W. 1 that her husband said that he demanded colour TV but black and white TV was
given and that instead of giving washing machine with two switches, a washing machine with one switch alone was given and both of them had to
be returned and the articles demanded should be brought. On 31.12.1998, P.W. 1 went to the quarters and met her daughter. She wept and
stated that her husband told her that he was prepared to go to jail even for 7 years after silencing her and even if he last the job, it would just be a
loss of hair to him. While she was speaking to the deceased, the first accused came to the house and asked P.W. 1 not to come to the house by
berating her.
On the next day i.e. On 1.1.1999 at about 9.30 a.m. the deceased called P.W. 1 over phone stating that she could not remain there, that she
was assaulted by the first accused and she told to take her to the house, for which P.W. 1 told that since it was Ramzan time, she would come by
6 ''o'' clock in the evening. But at 6.00 p.m. he received a phone call from her son-in-law''s house asking them to come to the quarters at once.
P.W. 1 went there and saw the deceased dead with bums. She has also added that the Television, Washing Machine and Seer Varisai articles
were returned to her by the officials of H.A.P.P.
In the cross examination, the accusations found in the chief examination of P.W. 1 have been denied, but not the incidents happened on and
after 25.12.1998.
The evidence of P.Ws. 2 and 3 are also in tune with that of P.W. 1. They also deposed about the cruelty upon the deceased and the events
which took place on and after 25.12.1998 specifically. Significant it is to note that the demand of T.V. and Washing Machine by the first accused
and the receipt of articles from P.Ws. 1 and 2 and the events which happened on and after 25.8.1998, including the versions on the part of the first
accused which drove her to commit suicide, were not denied in their cross examinations.
P.W. 6 is an auto driver, who used to take the deceased and P.W. 1 in his auto. He says that on one occasion, the deceased had stated that
her husband assaulted her on her ear and when they went to the house of the first accused, he along with his brother stopped them at the entrance
and picked up quarrel and that on 25.12.1998 she took P.W. 1 in his auto along with T.V. and Washing Machine and he came to know that after
a few days the deceased died.
P.W. 7 is a retired railway employee. He knows the family of P.W. 1. He says that on enquiry, the deceased told him that she was tortured in
her father-in-law''s house.
P.W. 11 the Inspector of Police in the All Women Police Station says about the lodging of complaint by deceased and the settlement between
them. P.W. 13 doctor would say that when she came to him for treatment, the deceased told him that she was tortured in her mother-in-law''s
house and was treated as inpatient, since she was very weak.
The oral account of P.W. 16 the then R.D.O., Trichy in this case is somewhat peculiar. He says that the family members of the deceased
pressurised him to prepare a report to the effect that kerosene was poured upon the deceased and was set fire and she was pushed into the house
and killed. But, he refused to write like that and hence they refused to give statement, that they informed the District Collector on the same day
who sent for him and directed him to draft report as desired by the family members of the deceased, but P.W. 16 was definite that he only would
write the real state of affairs and hence the District Collector told him that it was his discretion, that his (P.W. 16) conscience knew that there
would not have been any dowry torture and only at the repeated request of the family members of the deceased, he came out with opinion in his
report that dowry demand might be the cause for the death. He was treated as hostile witness and was examined by prosecution in cross. He is the
fact finding authority. But, in view of the evidence given by him as aforementioned, the cause of death could not be ascertained. The then District
Collector P.W. 18 would strongly deny the statement of P.W. 16 that it is false to state that he advised P.W. 16 to render report in favour of the
parents of the deceased, that he did not speak to him on this affair and the P.W. 16 did not report him that he was pressurised and threatened by
the parents of the deceased.
The oral evidence of P.Ws. 1 to 3 are corroborated by P.Ws. 6, 7 and 13. Merely because P.W. 6 is an auto driver, his evidence could not
be brushed aside. The evidence of the independent witnesses are natural and convincing and in view of this Court they duly corroborate the oral
accounts of P.Ws. 1 to 3. Even in the absence of the oral testimonies of P.Ws. 6, 7 and 13, the evidence of P.Ws. 1 to 3 would stand
independently since they are reliable in the presence of other materials available in this case, such as the letter given by the deceased to the General
Manager of H.A.P.P. in Exhibit P-2, Complaint given by her before the police in Exhibit P-3 and also the undertaking written by the first accused
on 15.8.2012 in Exhibit P-7. It is not stated that Exhibit P-7 was obtained under threat. On the same date, the deceased was also gave a letter to
the police which is available along with Exhibit P-7. Another circumstances to sec the truth in the evidence of P.W. 1 is her complaint statement in
Exhibit P-3. The occurrence took place at about 6.00 p.m. On 1.1.1999, P.W. 1 was informed, who came to H.A.P.P. Quarters immediately, the
police also visited the scene of occurrence and the Sub-Inspector of Police P.W. 14 recorded statement from her in Exhibit P-4 at 8.00 p.m. On
1.1.1999, in which she has stated the demand of dowry, cruelty perpetrated upon the deceased and the events which took place on 31.12.1998
and 1.1.1999. This Court does not find smell rat on the allegations contained in Exhibit P-3. In the report of R.D.O. the panchayatdars appear to
have stated that the deceased was died subjected to the cruelty by the accused.
The learned II Additional Assistant Sessions Judge, Trichirappalli, has analysed the evidence and reached a conclusion that the charge u/s
498(A) I.P.C. has been proved by the prosecution and found the accused guilty under the charge, recorded their conviction and passed sentences.
Insofar as the charge u/s 304(B) I.P.C. is concerned, the trial Court did not accept the case of the prosecution and acquitted the accused of the
charge. The reason assigned by the trial Court is that, at the outset the case was registered u/s 174 Cr. P.C. and thereafter on 15.2.1999, the case
was altered to one u/s 498(A) I.P.C. and on 18.2.1999 it was further altered into one u/s 304(B) I.P.C. and the statements recorded by the
investigating officer P.W. 13 were not placed for perusal and the reason for the police to alter the case into one u/s 304(B) I.P.C. is not known,
for which there may be some extraneous circumstances for the parencs to bring the case u/s 304(B) I.P.C. and there is no basis for charging the
accused under the Section. Further, even P.W. 1, discontent with the investigation by P.W. 17 requested for CBCID police enquiry, which shows
that P.W. 17 did not take the investigating officer in a right direction and hence, charge u/s 304(B) I.P.C. is not sustainable.
In the considered opinion of this Court, the above said reasons are not appreciable which could not be accepted because abundant materials
were available to the police even at the threshold, for charging the accused u/s 304(B) I.P.C. When this, type of cases are registered, usually the
police register the case u/s 174 Cr. P.C. When the investigation is in progress, as warranted by circumstances, they are altering the case to the
correct provision of law. In this case, the attitude of P.W. 17 could not be found fault with. There could be no compelling reasons for P.W. 17 to
bring the case u/s 304(B) I.P.C. also. Even at the outset, he was having the materials to alter the case u/s 304(B) I.P.C. In the absence of motive
nor ill-feeling attributed to P.W. 17, it is not proper to find fault with him. The statement of wit- nesses recorded by P.W. 17 u/s 161 Cr. P.C. are
sufficient for him to alter the case into one u/s 304(B) I.P.C. In view of the above said observation, this Court is of the considered view that
bringing the charge u/s 304(B) I.P.C. on record is appropriate.
As far as the proof available for Section 304(B) I.P.C. as regards the culpability of the accused is concerned, this Court finds that even though
the second and third accused were found guilty of the offence u/s 498(A) I.P.C., their acts could not be brought within the purview of Section
304(B) I.P.C. There is no allegation against them that soon before the death, they played role in driving the deceased to take this extreme step to
commit suicide. Insofar as the first accused, the husband of the deceased is concerned, reliable evidence are available to infer that soon before her
death, he demanded dowry in the form of articles. He returned the TV and washing machine stating that instead of colour television and washing
machine with 2 switches, he was given a black and white T.V. and a washing machine with one switch, besides which he also mutilated the
sentiments of the deceased by stating that he was ready to go to the prison for 7 years after doing away with her and the employment was nothing
for him.
P.W. 1 gave TV and washing machine on 25.12.1998. The first accused asked the P.W. 1 to take them back and bring new version of
articles as stated above. On 1.1.1999 at about 9.30 a.m. the deceased spoke to P.W. 1 over phone stating that she could not continue to live with
her husband and in the evening of the said day, she committed suicide. The consecutive events stated supra would indicate that soon before the
death, there was a dowry demand, coupled with cruelty on the part of the first accused which promoted the deceased to commit suicide. Hence
the first accused is guilty u/s 304(B) I.P.C.
P.W. 1 was quizzed in her cross examination that on account of unbearable headache she committed suicide. When the first accused was
examined u/s 313 Cr. P.C. he filed a written statement and produced certain prescriptions which do not show the name of the deceased. Two
prescriptions are in the name of Mana Begum and other prescriptions stand in the name of the 3rd accused.
In the outpatient book issued by H.A.P.P. Hospital for the deceased, it is seen that on 31.12.1998, the deceased took treatment for headache.
She was advised to take plenty of oral fluid and added salts besides the tables Slugeron, Calmpose 5 mg and Stometil. Vertigo was diagnosed on
her. The dictionary meaning of vertigo is, ""a sensation of whirling and loss of balance, associated particularly with looking down from a great height,
or caused by disease affecting the inner ear or the vestibular nerve; giddiness.
On 28.12.1998 also, she had complained of head ache land loss of sleep. Hence, she was given prescription to take tablets Metopar,
calmpose and Neurobian. Entries are available in the book from 24.6.1998. But on the above said two occasions alone, she complained of vertigo
and head ache. It shows that she might not have been suffering with continuous intolerable headache so as to take a decision of ending her life.
The learned counsel for the appellant would contend that the evidence of P.Ws. 1 to 3 are not believable, that there is no adequate
corroboration for their evidence, that the evidence available in this case would not indicate the guilt of the accused u/s 498(A) and 304(B) IPC,
that no charge under the provisions of Dowry Prohibition Act has been framed, that the settled decisions would show that a demand for the
household article cannot be treated to the demand of dowry, that there is no clinching evidence to show that there was dowry torture soon before
the death and that the accused may be absolved of all charges.
The learned counsel appearing for P.W. 1 who is the petitioner in the revision petition would contend that there is nothing wrong on the part of
the trial Court to find the accused guilty u/s 498(A), that plausible materials are available to prove the guilt of the accused u/s 304(B) IPC and that
the reasons as recorded by the trial Court for rejecting the charge u/s 304(B) IPC are not satisfactory.
The learned Additional Public Prosecutor would submit that the prosecution has proved the guilt of accused beyond all reasonable doubt, that
the Court below has not appreciated the evidence of prosecution witnesses with reference to Section 304(B) IPC in a proper perspective and that
there is no valid ground to disturb the conviction by the trial Court for Section 498(A) IPC and that the Court below should have convicted and
sentenced the accused u/s 304(B) IPC also.
A legal presumption is available u/s 113(B) of Evidence Act which is rentable to Section 304(B) IPC. A heavy burden lies on the accused to
prove his innocence. Having regard to the language of Section 113(B) of the Evidence Act, when a question arises as to whether a person has
committed the dowry death of a women and soon before the death, such woman has been subjected to cruelty or harassment by such person, any
demand of dowry, the Court shall presume that such person had caused the dowry death. The following are the relevant provisions to be borne in
mind:
304(B) IPC Dowry death
(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years
of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her
husband for, or in connection with, any demand for dowry such death shall be called ""dowry death"" and such husband or relative shall be deemed
to have caused her death.
Explanation: For the purpose of this sub-section, ""dowry"" shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of
1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend
to imprisonment for life.
113(B) of Evidence Act. 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 has
been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry the Court shall presume that such
person had caused the dowry death.
Explanation. For the purposes of this Section ""dowry death"" shall have the same meaning as in Section 304B of the Indian Penal Code (45 of
1860).
Dowry death has been defined in Section 304(B) IPC and when such death occurs within 7 years of marriage, the presumption u/s 113(B)
arises. The presumption is rebuttable at the instance of the accused. The Honourable Supreme Court has dealt with the terms ""soon before"" in its
judgment in Kans Raj Vs. State of Punjab and Others, which is cited by the learned counsel for the appellant/accused. The relevant portion is as
follows:
It is further contended on behalf of the respondents that the statements of the deceased referred to the instances could not be termed to be
cruelty or harassment by the husband soon before her death. ""Soon before"" is a relative term which is required to be considered under specific
circumstances of each case and no straight jacket formula can be laid down by fixing any time limit This expression is pregnant with the idea of
proximity test. The term ""soon before"" is not synonymous with the term ""immediately before"" and is opposite of the expression ""soon after"" as used
and understood in Section 114, Illustration (a) of the Evidence Act. These words would imply that the interval should not be too long between the
time of making the statement and the death. It contemplates the reasonable time which, as earlier noticed, has to be understood and determined
under the peculiar circumstances of each case.
In Biswajit Haider alias Babu Haider and Others v. State of West Bengal (2008) 1 SCC Crl. 172 : LNI 2007 SC 344 : (2007) 2 MLJ (Crl)
376, the Honourable Supreme Court has held that mere evidence of cruelty and harassment is not sufficient to bring an application of Section
304(B) IPC and it has to be shown that such cruelty or harassment was for or in connection with the demand for dowry.
In Appasaheb and Another v. State of Maharashtra, AIR 2007 SC 762 : (2007) 3 SCC (Cr)468 : LNI 2007 SC 14 : (2007) 1 MLJ (Crl)
Their Lordships have held that the demand made by the accused from the parents of deceased to meet domestic expenses and for purchase
of manure cannot be said to'' be a demand for dowry. Hence, in order to bring the ingredient of Section 304(B) IPC, the allegation of demand of
dowry ought to be established along with that of cruelty. In the case on hand, even though the first accused demanded Television and Washing
Machine, the domestic articles, he insisted his wife to bring colour T.V. and Washing Machine with 2 switches which can be termed to be demand
of dowry. In addition to this demand, he also told the deceased that even he would go to jail for 7 years and his job was nothing for him. The
attitude of the first accused towards his wife, in the considered view of this Court, would attract Section 304(B) I.P.C.
The Honourable Supreme Court also had an occasion to discuss about the meaning of ""cruelty"" provided for Section 498A IPC. In Manju
Ram Kalita v. State of Assam LNI 2009 SC 1363 : (2009) 4 MLJ (Crl) 506, it is observed as follows:
""Cruelty"" for the purpose of Section 498A I.P.C. is to be established in the context of Section 498A IPC as it may be a different from other
statutory provisions. It is to be determined/inferred by considering the conduct of the man, weighing the gravity or seriousness of his acts and to
find out as to whether it is likely to drive the woman to commit suicide etc. It is to be established that the woman has been subjected to cruelty
continuously/persistently or at least in close proximity of time of lodging the complaint. Petty quarrels cannot be termed as ''cruelty'' to attract the
provisions of Section 498A IPC. Causing mental torture to the extent that it becomes unbearable may be termed as cruelty.
In order to establish the cruelty, the prosecution has to show the cruelty had been continuously/persistently perpetrated upon the complainant in
order to attract Section 498(A) IPC. As far as the case on hand is concerned, it is in evidence that after lodging Exhibit P-3 complaint by the
deceased the first accused undertook to live with his wife peacefully and a compromise was reached between the parties in the police station on
15.8.1998. Hence, it is argued that thereafter there was no connection between the deceased and 2nd and 3rd accused and it could not be
believed that she was subjected to cruelty by A2 and A3. But P.W. 1 has stated that even after the deceased and the first accused came
separately, at the instigation of his family members, A1 harassed her. As far as first accused is concerned, sufficient evidence is available to show
that he had been continuously harassing the deceased. Insofar as A2 and A3 are concerned evidence is that at their instigation A1 was subjecting
the deceased to cruelty. In this case, the law was set in motion by the complaint lodged by P.W. 1. The harassment on the deceased had been
continuous which culminated in the commission of offence on the deceased.
In the above said decision in Manju Ram Kalita v. State of Assam (supra) case, the complaint for cruelty lodged by the wife after four years of
leaving the matrimonial home. But the facts in this case are distinguishable. She had lived with her husband separately after 15.8.1998 and there
had been torture by all the accused upon her as evident from the oral testimony of P.W. 1. Even if the cruelty on the part of A2 and A3 is stated
earlier than August 1998, lodging of complaint on 1.1.1999 cannot be said to be after a long time.
The Full Bench of the Apex Court has also discussed the relevant provisions in Shamnasheb M. Multtani Vs. State of Karnataka, The
operative portions are as follows:
The postulates needed to establish the said offence are: (1) Death of a wife should have occurred otherwise than under normal circumstances
within seven years of her marriage; (2) soon before her death she should have been subjected to cruelty or harassment by the accused in
connection with any demand for dowry. Now reading Section 113B of the Evidence Act, as a part of the said offence, the position is this: If the
prosecution succeeds in showing that soon before her death she was subjected by him to cruelty or harassment for or in connection with any
demand for dowry and that her death had occurred (within seven years of her marriage) otherwise than under normal circumstances the Court shall
presume that such person had caused dowry death.
u/s 4 of the Evidence Act whenever it is directed by this Act that the Court shall presume the fact it shall regard such fact as proved unless and
until it is disproved. So the Court has no option but to presume that the accused had caused dowry death unless the accused disproves it. It is a
statutory compulsion on the Court. However it is open to the accused to adduce such evidence for disproving the said compulsory presumption, as
the burden is unmistakably on him to do so. He can discharge such burden either by eliciting answers through cross- examination of the witnesses
of the prosecution or by adducing evidence on the defence side or by both.
The burden is heavily upon the accused to disprove that the death was not caused by any dowry demand, provided if the death occurred
within 7 years of the marriage. As for this case, the first accused has not disproved nor shifted the burden statutorily cart upon him that the death
did not occur due to any demand of dowry. As held by the Honourable Supreme Court in the above said case in Appasaheb and Another v. State
of Maharashtra (supra), a demand for money on account of some financial stringency or for meeting some urgent domestic expenses or purchasing
manure cannot be termed as a demand for dowry as the said word is normally understood. But, the facts in this case remain as that the demand of
Colour TV and Washing Machine with two switches cannot be termed to be a financial stringency to meet any urgent domestic expenses. The first
accused hence, cannot take recourse to the benefit of the said decision.
In a decision of this Court in J. Dayalan Babu and Another v. State rep. by the Inspector of Police CBI/SCB/Navi Mumbai 2010-2-L.W.Crl.
966 : LNI 2010 Mad 2576 : 2010) 4 MLJ (Crl) 559 T. SUDANTHIRAM, J. has held that the decision of committing suicide was not due to any
ill-treatment by the accused and that there is no demand of dowry and there was no harassment to the deceased and it was only due to her mental
illness and as the death of the deceased occurs 7 years after the date of marriage, Section 113(B) of the Evidence Act could not be invoked
against the accused and as such there is no material to attract the ingredients of the offence u/s 306 I.P.C. The facts available in the said case are
entirely different, where the deceased suffered mental illness and the death occurred beyond 7 years from the date of marriage.
Union of India (UOI) and Others Vs. Ajay Wahi, the Apex Court has also held that u/s 32(1) of the Evidence Act, oral evidence of witness
about what the deceased had said against accused about treatment meted out to her to sustain conviction u/s 498A IPC. The evidence available in
record should relate to the circumstances which are related to the death of the deceased, that even though in that case, the siblings of deceased
P.W. 4 and P.W. 5 has stated that their deceased sister had informed them that the accused had tortured that she had to arrange a job for him or
to get the registry of a house in his name or cash of Rs. 1,00,000/- can be made to him so that he can do some business and that since what has
been deposed by P.Ws. 4 and 5 has no connection with any circumstance of transaction which resulted in her death, their evidence are
inadmissible u/s 32(1) of the Evidence Act. The position existing in the present case is otherwise. Whatever told by the deceased to her mother
P.W. 1 with regard to the demand of dowry in the form of articles, the reaction of the peevished first accused saying that she had to return the
black and white T.V. and washing machine with one switch and further his irritating statement to his wife that even he was prepared to go to jail for
7 years and the loss of his employment would amount to a hair fall alone, prompted the deceased to plunge into the decision of committing suicide.
The learned counsel for the accused also garnered support from a decision of the Supreme Court in Arulvelu and Another v. State and
Another (2010) 1 SCC Crl. 288 : LNI 2009 SC 1874 : (2010) 1 MLJ (Crl) 150 wherein the Honourable Supreme Court has formulated the
principles in dealing with the appeal against acquittal. It is held that the appellate Court should be very slow in setting aside a judgment of acquittal
where two views are possible and that Appellate Court would not be justified in setting aside the trial Court judgment unless it is either perverse or
wholly unsustainable in law and that the accused is presumed to be innocent until guilt is proved, that the trial Court''s acquittal bolsters the
presumption that he is innocent and the appellate Court must keep this fundamental principle in view.
This Court does not find two views in this case. The only view of this Court is that the presumption u/s 113(B) of Evidence Act remains
unrebutted. This Court also finds perversity of findings in the judgment of trial Court as far as the discussion taken up on the offence u/s 304(B)
IPC and the findings are unsustainable in law.
Following the principles laid down by the Honourable Supreme Court, when the facts of the case are carefully approached by this Court, it
comes to light that the first accused is also guilty u/s 304(B) I.P.C. No sufficient evidence are available as against 2nd and 3rd accused with
reference to the offence u/s 304(B) I.P.C. In such view of this matter, the findings and conclusion of the trial Court as regards the charge u/s
304(B) I.P.C. against 1st accused has to be dislodged and the judgment is set aside to that extent. 2nd and 3rd accused are acquitted of the
charge u/s 304(B) IPC. The prosecution has proved the case beyond reasonable doubt against A1. The charge u/s 498(A) IPC against all the
accused has been established. I answer this point accordingly.
In the result, Crl. A. No. 647 of 2003 is allowed in part confirming the judgment Of conviction and sentence of A1 to A3 for the offence u/s
498(A) IPC, finding guilty of first accused u/s 304(B) IPC and finding A2 and A3 not guilty u/s 304(B) IPC and acquitting them of the charge u/s
304(B) IPC. Crl. A. No. 454 of 2010 is dismissed confirming the conviction and sentence passed against A1 to A3 u/s 498(A) IPC. In view of
the above stated disposal of Crl. A. No. 647 of 2003, Crl. R.C. No. 861 of 2004 is disposed of. Since the first accused has been found guilty u/s
304(B) IPC, he is directed to appear before me on 5.3.2012 at 2.00 p.m. for questioning of sentence.