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Govindaraj-vs-State Represented By Its Deputy on 11 March, 2003

Madras High Court Govindaraj-vs-State Represented By Its Deputy on 11 March, 2003
Author: A Packiaraj
Bench: A Packiaraj

ORDER

A. Packiaraj, J.

1. The petitioner had been convicted for offence under Section 498A and sentenced to undergo Rigorous Imprisonment for one year and to pay a fine of Rs.100/- in default to undergo Rigorous Imprisonment for one month and under Section 304B IPC, sentenced to undergo 7 years Rigorous Imprisonment and to pay a fine of Rs.900/-, in default to undergo 6 months Rigorous Imprisonment (sentences to run concurrently) by the Assistant Sessions Judge, Ariyalur in S.C. No. 36/2000, against which he preferred appeal in C.A. No. 4 of 2000 before the Principal Sessions Judge, Perambalur, who confirmed the conviction and sentence passed by the trial court. Aggrieved by the same, the present revision has been filed.

2. Since two courts have already gone into the facts and evidences and given concurrent findings, finding the accused guilty, it may not be necessary for me to advert to the facts of the case in detail, as this is only a revision, suffice to state that originally the police had filed the charge sheet against two persons, namely the petitioner herein and his mother, as A-1 and A-2 respectively, for the above said offences. The Assistant Sessions Judge convicted both the accused for offence under Section 498A and 304B IPC. But in the appeal, A-2 was acquitted as there was no evidence against her.

3. The case of the prosecution in a nut shell is as follows:-

“a) P.W.1 gave his daughter in marriage to the petitioner, on 27.08.1998, which is not disputed by the accused. The couple lived happily only for a few months. At the time of marriage, 15 sovereigns of gold jewels were agreed to be paid by the parents of the bride but only 10 sovereigns have been given, undertaking to give the remaining 5 sovereigns later.

b) After the marriage, the deceased was living with her husband and in-laws at Nochikulam. On 25.11.1998, P.W.1 had been to the marriage of his brother’s grand daughter at Ariyalur and from there he went to Nochikulam to pay a visit to his daughter. There, he found the deceased to be in a distressed mood and on questioning her, she told him that her husband had beaten her. He expressed his reservations on her absence in that marriage for which, she replied that she had no jewels. On repeated questioning, the deceased told him that her husband had taken away the jewels and was living a wayward life by selling them. So, P.W.1 asked her to come for a short stay in his house for which the deceased told him that she would come after 10 days.

c) But on 26.11.1998, the following day, at 5 p.m., P.W.1 heard the news that the deceased had hung herself and committed suicide. He rushed to Nochikuppam and saw his dead daughter and smelling fishy in his daughter’s death, he went to Ariyalur police station at about 10 pm on the same day and gave Ex.P-1, report to P.W.9, Head constable, who recorded the same and registered it in crime number 603 of 1998 for offence under Section 304B.

d) Since death had taken place within 7 years of the marriage, the matter was referred to the Revenue Divisional Officer for conducting the inquest and accordingly, he held the inquest. According to him, there was no demand of dowry or harassment, but only a case of suicide.

e) The body of the deceased was sent for postmortem, where P.W.7 Doctor, conducted the autopsy and opined that the in view of the marks in front of the neck, the deceased would have died of asphyxia about 24 to 30 hours prior to the postmortem examination. P.W.6, Investigating Officer, after concluding the investigation, filed the final report.”

4. The case of the accused, when examined under Section 313 Cr.P.C, was one of denial. According to the petitioner, the deceased committed suicide, as P.W.1, her father, found fault with her for having not attended the marriage and abused her asking her not to face him in future. Angered by the same, she has committed suicide. However, both the courts did not accept this explanation, as it has been made only at the final stages.

5. Be that as it may, the case of the prosecution, as spoken to by P.W.1 is, on the previous day of the death of the deceased, he saw the deceased in a distressed mood and on questioning, she told him that her husband was a drunkard and he was spending all his money drinking and he has also sold her jewels. Obviously, there appears to be some harassment by the accused on account of which she committed suicide.

6. But as far as the offence under Section 304-B IPC is concerned, the main ingredient contemplated under this section is, the death should be due to harassment, by way of seeking dowry. But in the present case, there is absolutely no iota of evidence to show that there was any demand of dowry. Merely treating a person cruelly would not come within the ambit of Section 304-B IPC. The Supreme Court in the decision made in Satvir Singh and others Vs. State of Punjan and another, () has held in paragraph 20 thus:-

“20. Prosecution, in a case of offence under Section 304-B IPC cannot escape from the burden of proof that the harassment or cruelty was related to the demand for dowry and also that such cruelty or harassment was caused “soon before her death”. The word “dowry” in Section 304-B has to be understood as it is defined in Section 2 of the Dowry Prohibition Act, 1961.”

7. The Supreme Court went on further to state that the presumption contemplated under Section 113A of the Evidence Act could also be applicable only in relation to a case where death has occurred due to demand of dowry, which is lacking in this case. Therefore, I am not able to hold that the petitioner is liable to be convicted for an offence under Section 304-B IPC.

8. As far as offence under Section 498A IPC is concerned, there are two elements which are as follows:-

“(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to med such demand”

9. If the harassment is on account of demand of dowry, then it is 498-A(b) which is applicable. But if the wife has been driven to commit suicide on any unlawful conduct of the husband, then the offence comes under section 498-A(a). Therefore, in the present case, the specific case of the prosecution is that the accused was taking the jewels from the deceased and by selling them, had spend it on drinking, which was not liked by his wife. Since she had been protesting against it, I have no hesitation to hold that she was being treated cruelly by her husband on account of his bad habits. Hence he is liable to be punished for an offence under Section 498-A IPC.

10. Accordingly, I set aside the conviction of the petitioner for offence under Section 304-B IPC and also the sentence of 7 years but confirm the conviction under Section 498-A IPC. As far as the sentence of one year is concerned, I am given to understand that the petitioner has served 7 months in jail and in view of the above fact, I deem it fit that the sentence be reduced to one of the period already undergone. But I direct the petitioner to pay a fine of Rs.7000/- within two months from the date of receipt of copy of this order, in default to undergo the remaining period of 5 months Rigorous Imprisonment. With this modification in sentence, the revision is partly allowed.

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