Full Judgment Text
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CASE NO.:
Appeal (crl.) 779 of 2005
PETITIONER:
T. Aruntperunjothi
RESPONDENT:
State Through S.H.O., Pondicherry
DATE OF JUDGMENT: 05/04/2006
BENCH:
S.B. Sinha & P.P. Naolekar
JUDGMENT:
J U D G M E N T
S.B. SINHA, J :
Davamani (the deceased) was the wife of the appellant herein. She
admittedly committed suicide on 14.03.1994. They were married on
04.09.1992. The deceased gave birth to a female child at Pondicherry in
July 1993. The appellant for one reason or the other did not bring her back
from her maternal home for a period of about eight months. She was
brought back in February 1994. According to the appellant, the deceased
proposed to go back to her mother’s house to see her mother which he
refused stating that she had come back only a month back.
It is not in dispute that at the time when the deceased committed
suicide neither the appellant nor his mother was present in the house.
Somehow or the other the people of the neighbourhood came to know about
it. They broke open the door and found the dead body. The deceased
committed suicide at about 1 p.m.. The mother of the appellant came back
at 3.30 p.m.
It also stands admitted that the family members of the deceased,
namely, her mother (PW-7), sister (PW-8), maternal uncle (PW-6), another
relative (PW-9), and brother (who was not examined), came to the house and
allowed the cremation of the dead body in his village. They took back all
the articles which were given to her at the time of or after the marriage. No
first information report was lodged by them. The police was informed by
the appellant himself whereupon a case under Section 176 of the Code of
Criminal Procedure was initiated. The matter was also considered by
panchayat. One Rajarajan Veerasamy, Deputy Tahsildar-cum-Executive
Magistrate, (PW-14), conducted an enquiry. He examined the prosecution
witnesses and others. He submitted a report before the Station House
Officer, Mettupalayam Police Station on or about 15.03.1994 wherein he is
said to have raised some suspicion as regards the death of the said
Davamani. In his report, it was stated :
"\005.Further, their statements also stress the harassment
for want of dowry. The Panchayatars statement does not
clear the doubts as they are not aware of any facts and
they could not confirm that there are no problems
between the deceased and her husband. There is an
injury on the right hand side of the neck of the deceased
and an internal injuries could be traced out only in the
post mortem report.
In my opinion, I suspect that there could be
harassment for demand of dowry by the in-laws and
husband of the deceased, based on the statements
recorded in this regard. Hence, in my opinion, this could
be a case of dowry death\005"
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On the basis of the suspicion expressed by him, a case under Section
304B of the Indian Penal Code came to be registered against the appellant
alone. His mother was not made an accused. She was made a prosecution
witness. She was examined on behalf of the prosecution as PW-1. It is
furthermore not in dispute that an investigation into the offence was required
to be carried out by a Superintendent of Police. Upon the said report of PW-
14, Smt. Anita Roy, Superintendent of Police (PW-10), took up the
investigation. She was not conversant with the local language. She went to
the village Kilinchikuppam and examined the mother, sister and brother of
the deceased. The Circle Inspector Munisam and Head Constable
Ramaswami (PW-15) accompanied her. Admittedly, the evidences of the
witnesses were recorded by the said PW-15. They were said to have been
translated in English. Although, according to PW-10, she verified the said
statements, but did not state as to how she did it. PW-10 and PW-11 being
not available at that time in the village, were asked to come to Pondicherry.
PW Nos. 7, 10 and 11 visited Pondicherry on 8.05.1994. Their statements
were said to have been recorded by PW-15, in her presence. The said
statements were also allegedly translated. She again allegedly verified the
said statements without disclosing the mode and manner thereof. Upon
completion of the investigation a chargesheet was filed.
The learned Sessions Judge framed the following charge against the
appellant:
"That you from 4.9.1992 to 14.3.1994 had
subjected your wife Davamani to cruelty and harassment
in connection with dowry demand and had driven her to
commit suicide by hanging at her residence at
Shanmugapuram on 14.3.1994 between 8-15 and 13-00
hours which occurred within seven years of her marriage
and that you thereby committed an offence punishable
under Section 304B of the Indian Penal Code and within
my cognizance."
In support of its case, the prosecution examined Kasiammal (PW-1),
Amudha (PW-2), Arumugham (PW-3), Seethapathy (PW-6), Amaravathi
(PW-7), Chandrakantha (PW-8) and Jaya (PW-9) .
In this case three witnesses were also examined on behalf of the
prosecution who instead of supporting its case directly or indirectly
supported the case of the appellant herein. PW-1 is the mother of the
appellant. PW-2 is a neighbour and PW-3 was a teacher of the village, who
himself had even, according to prosecution witnesses, been demanding
dowry. We would refer to their depositions before the court a little later.
We would, however, at this stage notice the deposition of those
witnesses who supported the case of the prosecution completely.
PW-7 is the mother of the deceased. She was, presumably her best
friend. It is expected that the deceased would share her agonies with her
mother only.
Three periods are involved in this case. The marriage took place on
04.09.1992. The deceased stayed with her husband for about seven months,
i.e., upto February 1994. According to PW-7 they were living happily
during that period. The deceased went back to her mother’s place for
delivery of a child. She delivered a child in a hospital. According to the
deceased’s mother the appellant came and saw the child. She was later on
discharged from the hospital after informing the appellant. The deceased
stayed with her mother from March 1993 to February 1994.
The incident took place on 14.03.1994.
So far as demand of dowry is concerned, allegedly a demand was
made of 8 sovereign of gold. One witness PW-9, Jaya, however, states that
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the accused party demanded 9 sovereigns. It was stated by other prosecution
witnesses that 6.5 sovereign of gold was given at the time of marriage,
whereas according to PW-9 only five sovereign of gold was given. Another
demand by way of dowry was said to be in the form of a silk saree as it was
missing at the time of marriage and the groom’s family wanted them to
purchase a new saree.
We may notice that no witness stated that the demand of dowry was
made by the appellant himself. Evidence brought on record by the
prosecution as regard the alleged demand of dowry is : (i) PW-3
Arumugham had been demanding dowry; (ii) a demand was made also by
the brother of the accused; and (iii) the hearsay evidence of PWs that the
deceased herself told that she was being harassed for demand of dowry.
It is of some significance to note that the mother of the deceased
categorically stated. :
"\005The accused has not demanded for the jewels and
saree. The teacher only demanded. The teacher is
responsible for my daughter’s death."
It is furthermore of some significance to note that a categorical
statement was made by PW-7 that when PW-3 had visited her house and
demanded a silk saree and jewels, she had told him that she would ask her
son-in-law regarding the same which demonstrate that she had confidence in
him. It is not her case that at any point of time she had asked the appellant
as regard any demand of dowry made by him.
PW-6 is the maternal uncle of the deceased. His evidence cannot at
all be relied upon as what he stated in his deposition had not been stated by
him before the investigating officer or before the Deputy Tehsildar. He, in
his deposition, went beyond the prosecution case. According to him, the
accused and his family demanded TVS Moped, Cot, Bureau, Grinder and
vessels made of stainless steel. No such case was made out by the family
members of the deceased. According to him, when he visited the deceased
six months after the marriage, she had allegedly informed him about being
beaten by the appellant and demanding of remaining 1.5 sovereign of gold
jewels. He spoke about giving of = sovereign of gold during Valaikappu
function.
The said function is indisputably held when the woman is about seven
months’ pregnant. It may, therefore, be that = sovereign of gold might have
been given as a customary gift. He is said to have been informed that it was
PW-3 alone who came to his sister’s house and demanded the balance of
jewels and a silk saree which had been missing at the time of marriage.
Even this witness, thus, did not say that the said teacher was making any
demand on behalf of the appellant.
As noticed hereinbefore, according to PW-7, she believed that the
cause of death of the deceased was the demand of dowry made by PW-3.
PW-8 is the sister of the deceased. She visited her sister three months
after marriage and was allegedly told by her that her in laws had been
demanding the balance of jewels which had been agreed to by them. At that
time admittedly no allegation was made by her as regard harassment meted
out to her by anybody far less the appellant herein.
PW-9 is the aunt of the deceased. She was examined by the
Superintendent of Police three months after the death of the deceased
Davamani. She of course told about the alleged torture meted out to the
deceased by the appellant for not giving the balance jewels but her evidence,
in our considered view, is not reliable. Evidence led by prosecution, thus,
failed to establish involvement of the Appellant as regards the alleged
demand of dowry.
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We may now scrutinize the evidence led by the prosecution as regards
the alleged harassment of the deceased.
The mother of the deceased did not depose that she had ever been
intimated by the deceased about harassment meted out toher. She is said to
have received the information from her son who was not examined. Her
evidence, thus, being hearsay in nature is inadmissible in evidence. She
allegedly came to know about the alleged harassment through her son and
daughter only. PW-8, however, does not say that she had ever stated the
same to her mother. PW-7’s statement as regard harassment, thus, is not
admissible at all.
We have noticed hereinbefore that when PW-8 visited the deceased
for the first time, i.e., three months after the marriage, she did not speak
about any harassment. Only when she allegedly came to see her sister after
the delivery of the child and asked as to how she was, she allegedly cried
stating that she was in apprehension of danger to life. She is said to have
made a similar statement before the police also but in relation thereto no date
or month was mentioned. She deposed that she allegedly had told the
Tahsildar that the deceased was beaten up by the appellant; but no such
statement appeared to have been made. She in her evidence categorically
stated that :
"\005When I invited my sister to come to my house along
with her husband, she told that her husband would come
only after his mother in law come and go to his
house\005."
The explanation offered by the accused is exactly the same. We for
the reasons mentioned hereinbefore, do not intend to place any reliance on
the statement of PW-9 even on this score.
We may at this juncture may notice the peculiar features of the case.
PW-1, the mother of the accused and PW-3, the teacher, who were
responsible for the demand of dowry had not been made accused in the case.
They have been examined as prosecution witnesses. PW-1 has not even
been declared hostile. She was examined by the prosecution, as presumably
before the police because she had deposed against the accused and in
support of the prosecution. As regards the suicide committed by the
deceased, she offered an explanation not as a defence witness but as a
prosecution witness stating that after a month of her coming back after
delivery of child, the deceased had requested her son to permit her to go to
her parents’ house, but he had told her that she could do so only after her
parents come to their house but despite the same she had been insisting to
visit her parents. According to PW-1 she was a short tempered girl. She
categorically stated that she committed suicide for not being allowed to go to
her parents house by the appellant and there was no other reason therefor.
PW-2 is another witness, who was examined by the prosecution. She
was the last person to see the deceased. According to her at about 12.30
p.m., she visited her house. She was in normal mood. She also bears
testimony that the couple had been leading a happy life. She had also not
been declared hostile by the prosecution.
PW-3 is the teacher, who according to PW-7 was solely responsible
for causing her daughter’s death. He was declared hostile. He had been
examined by the police as also by the Superintendent of Police. He
categorically stated that there had never been any problem as regard dowry
nor any complaint was made by the appellant to the deceased’s family about
missing of the silk saree. Although he was declared hostile, only some
suggestions were given to him. In fact he had not been cross-examined in the
true sense of the term. His attention had not been drawn to his earlier
statements, if any, before the police or before the Deputy Tahsildar. Why he
was examined as a prosecution witness and why he was declared hostile is
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not known.
In the aforementioned factual backdrop, we have to consider as to
whether a case has been made out for conviction of the appellant under
Section 304-B of the Indian Penal Code, which reads as under :
"304B. 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, 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) Whosoever 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."
The essential ingredients of the said offence, therefore, are (i) death of
a woman must have been caused by any burns or bodily injury or otherwise
than under normal circumstances; (ii) such death must have been occurred
within seven years of marriage (iii) soon before her death she was subjected
to cruelty or harassment by her husband or relative of her husband; (iv) such
cruelty or harassment must be in connection with the demand of dowry; and
(v) such cruelty is shown to have been meted out to the woman soon before
her death.
The significant words are "soon before her death". Here, it was, thus,
necessary for the prosecution to establish that the deceased must have been
subjected to cruelty or harassment by her husband or relative of her husband
soon before her death.
It is now well-settled in view of a catena of decisions of this Court
that what would constitute ’soon before her death’ depends upon the facts
and circumstances of each case.
We would examine some of them.
In State of A.P. v. Raj Gopal Asawa and Another [(2004) 4 SCC 470],
it is stated :
"10. Section 113-B of the Evidence Act is also
relevant for the case at hand. Both Section 304-B IPC
and Section 113-B of the Evidence Act were inserted as
noted earlier by Dowry Prohibition (Amendment) Act 43
of 1986 with a view to combat the increasing menace of
dowry deaths. Section 113-B reads as follows:
"113-B. Presumption as to dowry death.\027When 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.\027For the purposes of this section ’dowry
death’ shall have the same meaning as in Section 304-B
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of the Indian Penal Code (45 of 1860)."
The necessity for insertion of the two provisions has been
amply analysed by the Law Commission of India in its
21st Report dated 10-8-1988 on "Dowry Deaths and Law
Reform". Keeping in view the impediment in the pre-
existing law in securing evidence to prove dowry-related
deaths, the legislature thought it wise to insert a provision
relating to presumption of dowry death on proof of
certain essentials. It is in this background that
presumptive Section 113-B in the Evidence Act has been
inserted. As per the definition of "dowry death" in
Section 304-B IPC and the wording in the presumptive
Section 113-B of the Evidence Act, one of the essential
ingredients, amongst others, in both the provisions is that
the woman concerned must have been "soon before her
death" subjected to cruelty or harassment "for, or in
connection with, the demand for dowry". Presumption
under Section 113-B is a presumption of law. On proof of
the essentials mentioned therein, it becomes obligatory
on the court to raise a presumption that the accused
caused the dowry death. The presumption shall be raised
only on proof of the following essentials:
(1) The question before the court must be whether the
accused has committed the dowry death of a woman.
(This means that the presumption can be raised only if
the accused is being tried for the offence under Section
304-B IPC.)
(2) The woman was subjected to cruelty or
harassment by her husband or his relatives.
(3) Such cruelty or harassment was for, or in
connection with, any demand for dowry.
(4) Such cruelty or harassment was soon before her
death."
[See also Harjit Singh v. State of Punjab [(2006) 1 SCC 463]
In Kamesh Panjiyar alias Kamlesh Panjiyar v. State of Bihar [(2005)
2 SCC 388], this Court opined :
"12. Consequences of cruelty which are likely to drive
a woman to commit suicide or to cause grave injury or
danger to life, limb or health, whether mental or physical
of the woman is required to be established in order to
bring home the application of Section 498-A IPC.
Cruelty has been defined in the Explanation for the
purpose of Section 498-A. Substantive Section 498-A
IPC and presumptive Section 113-A of the Evidence Act
have been inserted in the respective statutes by the
Criminal Law (Second Amendment) Act, 1983. It is to be
noted that Sections 304-B and 498-A IPC cannot be held
to be mutually inclusive. These provisions deal with two
distinct offences. It is true that cruelty is a common
essential to both the sections and that has to be proved.
The Explanation to Section 498-A gives the meaning of
"cruelty". In Section 304-B there is no such explanation
about the meaning of "cruelty". But having regard to the
common background to these offences it has to be taken
that the meaning of "cruelty" or "harassment" is the same
as prescribed in the Explanation to Section 498-A under
which "cruelty" by itself amounts to an offence. Under
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Section 304-B it is "dowry death" that is punishable and
such death should have occurred within seven years of
marriage. No such period is mentioned in Section 498-A.
If the case is established, there can be a conviction under
both the sections. (See Akula Ravinder v. State of A.P.1)
Period of operation of Section 113-A of the Evidence Act
is seven years, presumption arises when a woman
commits suicide within a period of seven years from the
date of marriage."
In the decision of this Court in Sudhakar and Another v. State of
Maharashtra [(2000) 6 SCC 671] whereupon Mr. R. Sundaravardan relied,
this Court opined that the proximity test is one of the tests which must be
held to be applicable for the purpose of consideration as to whether such a
statement of a deceased should be relied upon or not. Therein, Sethi, J.,
speaking for a 3-Judge Bench of this Court held that only because allegedly
the deceased made a statement giving out circumstances in which she was
allegedly raped by two accused, which was recorded by police 11 days after
the occurrence whereas she committed suicide about 5-1/2 months
thereafter, it would not lead to the conclusion that rape upon her was the
reason for commission of her committing suicide, stating:
"11. There is no legal evidence on record that the
prosecutrix at or about the time of making the
statement had disclosed her mind for committing
suicide allegedly on account of the humiliation to
which she was subjected to on account of the rape
committed on her person. The prosecution
evidence does not even disclose the cause of death
of the deceased. The circumstances stated in
Exhibit P-59 do not suggest that a person making
such a statement would, under the normal
circumstances, commit suicide after more than
five-and-a-half months. The High Court was,
therefore, not justified in relying upon Exhibit P-
59 as a dying declaration holding that the said
statement was in series of circumstances of the
transaction which resulted in the death of the
deceased on 21-12-1994. The conviction of the
persons accused of offences cannot be based upon
conjectures and suspicions. Statement Exhibit P-59
if not treated as a dying declaration, there is no
cogent and reliable evidence which can connect
the accused with the commission of the crime\005"
The said decision is, therefore, of no assistance to the prosecution.
The conduct of the family members of the deceased, in the
aforementioned backdrop, assumes importance. They did not make any
complaint themselves. It was the appellant who lodged the first information
report. On the basis of the said first information report, an investigation
must have been commenced. It was stated to be a case of unnatural death.
However, an enquiry was made by the Tahsildar. Before him only for the
first time, some statements had been made by some of the prosecution
witnesses. We have noticed hereinbefore that the members of the Panchayat
did not state anything about the cause of the death. The Tahsildar in his
report mentioned about an injury "on the right hand side of the neck" of the
deceased. No such injury was found in the post mortem report. He in his
evidence as PW-14 categorically stated :
"\005In my report, I have examined some witnesses who
have not stated that Dawamani was ill-treated by her
mother-in-law..."
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His evidence in this behalf is not very clear, when he stated :
"\005I have not received any information when I examined
5 persons who are residing in the local area that the
death might not have been happened due to dowry..."
He further stated :
"\005In my enquiry, Chandrakantha has stated that
Dawamani was beaten up by her husband demanding =
sovereign of gold Jhimki. Chandrakantha went to her
sister house 10 days before the death and she was told by
her sister that she was well. In my report, I have not
stated that Chandrakantha was told by her sister
Dawamani that she was well while weeping. When I
examined Seethapathy he has not stated that Dawamani
was ill treated and beaten up by her husband for dowry.
In the examination of Amarvathy, she has not stated that
Dawamani returned to her mother-in-law’s house for one
month and she was ill treated for dowry\005"
It, therefore, appears that no cogent evidence had been adduced by the
prosecution to establish that the appellant had demanded any dowry. It
would bear repetition to state that according to the mother of the deceased,
PW-7 only PW-3 demanded dowry and only he was responsible for the
death of her daughter. If that be so, he should have also been prosecuted.
The trial court has not given any cogent reason for disbelieving the
evidence of PW-1; upon whom even the prosecution placed reliance. The
statement of PW-1 that the deceased was short tempered girl has not been
discarded. The statement of PW-2 that even = hour before committing
suicide the deceased behaved normally had also not been taken into
consideration. The prosecution did not cross-examine PW-3, except making
some suggestions; although he was declared hostile. Even the trial court did
not discard the explanation given by the accused as regard suicide of the
deceased. It proceeded on the basis that there was no evidence either
directly or indirectly as regard harassment or cruelty committed by the
appellant against his wife and there are only circumstantial evidence
therefor. The necessary ingredients of circumstantial evidence for holding
the appellant guilty of commission of the offence had not been deliberated
upon either by the trial court or by the High Court. Even an attempt had
been made to show that the accused had on an earlier occasion tried to
murder the deceased but the same was found to be false by the trial court
holding that there was no evidence that the "accused had already attempted
to burn away his wife". The trial court opined :
"\005The fact that the deceased was living with her
mother for about eight months after delivery would speak
volumes of the misunderstanding between the accused
and his wife\005."
If it was a case of misunderstanding between the accused and the
deceased, the same would not automatically lead to the conclusion that the
appellant had committed an offence under Section 304-B of the Indian Penal
Code. The law does not raise any such presumption
The trial court proceeded on the basis that as if PW-3 was acting as a
messenger, although there was no evidence in this behalf. It was held by the
trial court that ’the insistence of the PW-3 revealed that what was demanded
by PW-3 was a dowry demand’. We fail to understand as to how a so-called
misunderstanding or a hypothesis could be made the basis for conviction.
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There was no reason to disbelieve that the defence version that the
cause of death was that she had insisted to go to her mother’s house but she
was not allowed, was plausible.
Having regard to the peculiar features of the case, we are of the
opinion that demand of dowry or any harassment being the cause for the
death of the deceased, cannot be said to have been established beyond all
reasonable doubt.
For the reasons aforementioned, the impugned judgment cannot be
sustained, which is set aside accordingly. The appeal is allowed. The
appellant shall be set at liberty forthwith unless wanted in connection with
any other case.