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Kaliyaperumal And Muthulakshmi-vs-State, Rep. By Inspector Of Police on 16 September, 2002

Madras High Court Kaliyaperumal And Muthulakshmi-vs-State, Rep. By Inspector Of Police on 16 September, 2002
Equivalent citations:2003 (1) ALT Cri 564, 2003 CriLJ 300, I (2003) DMC 233
Author: M Karpagavinayagam
Bench: M Karpagavinayagam

JUDGMENT

M. Karpagavinayagam, J.

1. Kaliyaperumal and Muthulakshmi (A2 and A3) were convicted for the offences under Sections 304B and 498A I.P.C. and sentenced to undergo R.I. for 9 years for the offence under Section 304B I.P.C. and R.I. for 3 years and to pay a fine of Rs.2,500/- each for the offence under Section 498A I.P.C.

2. Originally, the charges were framed against three persons including the appellants for the above offences alleging that Devesena, the wife of A1 Ashok Kumar and the daughter-in-law of the appellants committed suicide within 7 years of her marriage due to the dowry torture. The trial Court on conclusion of trial, acquitted A1, the husband of the victim and convicted the appellants, the father-in-law and mother-in-law of the victim for the offences under Sections 304B and 498A I.P.C. Hence, this appeal by the appellants.

3. The case of the prosecution in brief is as follows:

“(a) Devasena, the deceased is the daughter of P.W.3 Narayanasamy and P.W.4 Valli Ammal. She was given in marriage to Ashok Kumar, the son of the appellants on 27.1.1989. At the time of marriage, 15 sovereigns of jewels and a cash of Rs.10,000/- were demanded as Seervarisai. Though the parents of the victim agreed to hand over the same, they were able to give only 12 sovereigns of jewels and cash of Rs.7,000/- at the time of marriage. However, they agreed to give the balance soon.

(b) After marriage, both the husband and wife lived together in a joint family along with the appellants. Ashok Kumar, the husband was working in abroad. Whenever he left India, he used to take his wife and leave her with her parents P.Ws.3 and 4.

(c) After one year, the deceased daughter complained to her parents P.Ws.3 and 4 that she was being tortured by her father-in-law and mother-in-law demanding the dowry which was agreed to be given. Even then, P.Ws.3 and 4 were not able to arrange for the same. When torture was unbearable, the deceased came out of the matrimonial home and stayed in her parents’ house. The first appellant came and beat the deceased with chappel and took her back to the matrimonial home.

(d) P.Ws.3 and 4 having felt insulted that their daughter was beaten by the first appellant in a public street, they went to the house of the appellants along with the villagers in order to question the father-in-law as to why the victim was beaten with chappel. At that time, the first appellant abused both P.Ws.3 and 4 and others and asked them to go away stating that they had no right to question their act, since the agreed Seervarisai articles, namely 3 sovereigns of jewels and Rs.3,000/- cash were not given to them. Therefore, P.Ws.3 and 4 along with the others had to come back home.

(e) On 9.12.1992, P.W.3 received the information that their daughter died in the matrimonial home. Therefore, they came to the house of the appellants. At that time, P.W.1, the Village Administrative Officer was present. On the basis of the statement given by P.W.3, the father of the victim, P.W.1 prepared Ex.P1 report and sent the same to the police officer.

(f) P.W.9 Head Constable received the report and registered the case under Section 174 Cr.P.C. Then, the intimation was sent to the R.D.O. to conduct inquest. Accordingly, R.D.O. came to the spot and conducted inquest and obtained statements from the accused, the parents of the deceased and other witnesses.

(g) Thereafter, he sent Ex.P8 report to P.W.11 D.S.P. for further action. The enquiry of the R.D.O. revealed that the death was due to dowry torture at the hands of her husband, father-in-law and mother-in-law. Thereafter, P.W.11 took up further investigation. P.W.2 Doctor conducted post-mortem and issued Ex.P2,the post-mortem certificate along with Ex.P3 final opinion that the death was due to pesticide poison.

(h) After finishing the investigation, P.W.11 filed the charge sheet against all the three accused, namely husband, father-in-law and mother-in-law.”

4. As noted above, the appellants alone were convicted for the offences under Sections 304B and 498A I.P.C.

5. Challenging the said conviction, Mr.K.Chandrasekaran, the learned counsel appearing for the appellants would submit that the finding with regard to the offences under Sections 304B and 498A I.P.C. was not correct, since the same was rendered on the basis of wrong appreciation of the evidence.

6. However, the counsel for the appellants would strenuously submit that the appellants cannot escape from the liability in respect of the offence under Section 498A I.P.C., in view of the materials regarding torture as found in the letters written by the husband (A1) to the victim and parents of the victim, P.Ws.3 and 4, but however, the appellants cannot be convicted for the offence under Section 304B I.P.C., as there is no evidence to show that the victim was subjected to cruelty with reference to the dowry demand soon before her death.

7. On the other hand, the learned Government Advocate would submit that the evidence of P.Ws.3 and 4, the parents of the victim and the evidence of P.W.5, who went along with P.Ws.3 and 4 to the house of the appellants to question the act of the first appellant in having beaten the victim with chappel would clearly indicate that all these tortures were meted out to the victim by the appellants only due to the failure of the parents of the victim P.Ws.3 and 4 to give the balance of dowry as agreed by them at the time of marriage and therefore, the conviction under both the offences is valid.

8. I have carefully considered the submissions made by the counsel for the parties and also gone through the records.

9. The counsel for the appellants would cite two authorities 1997 S.C.C. (Cri.) 759 (SHAM LAL v. STATE OF HARYANA) and 2002 S.C.C.(Cri) 48 (SATVIR SINGH v. STATE OF PUNJAB) in order to substantiate his plea that the offence under Section 304B I.P.C. is not made out.

10. On going through the said judgments, it is clear that in order to attract Section 304B I.P.C., it has to be established that the death of the deceased was caused in the abnormal circumstances within 7 years of marriage and soon before the death, the deceased must have been subjected to cruelty by the accused persons in connection with the demand for dowry.

11. The first ingredient in this case would stand established, since the death of the deceased took place within 7 years of marriage. Similarly, the second ingredient also has been established, since the death was caused due to suicide as per the report of Ex.P3 issued by P.W.2 Doctor.

12. Though it is the case of defence that the deceased died by consuming pesticide poison, since she was suffering from stomach-ache during the menses period, the same has not been established by the defence. As a matter of fact, there is no cross-examination to P.W.2 Doctor. Furthermore, no attempt has been made by the defence to prove that prior to the death, she used to suffer from stomach-ache and for that, she was given any treatment by Doctor.

13. In regard to the third ingredient, it has to be established that she was subjected to cruelty in connection with the demand for dowry soon before her death. On the basis of the words “soon before her death”, it has been argued by the counsel for the appellants that there is no material produced by prosecution that she was tortured in connection with the dowry demand soon before her death.

14. In this context, it would be appropriate to refer to Section 113B of the Evidence Act:

“113-B. 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 has caused the dowry death.”

15. The reading of the above section would make it clear that for invoking the legal presumption, prosecution has to prove that “soon before her death” she was subjected to such cruelty or harassment in connection with demand for dowry.

16. In this case, there are materials that 15 days prior to the death of the deceased, when P.Ws.3,4 and 5 along with others went to the house of the appellants to question his act of beating the deceased, the first appellant specifically had stated that they had no business to come and question them, since they did not give the balance of the dowry, namely 3 sovereigns of jewels and cash of Rs.3,000/- as agreed by them. This would make it clear that even the deceased was subjected to torture and harassment by the appellants mainly on the reason that the balance of the dowry was not handed over to them as agreed at the time of marriage.

17. This aspect of the evidence has been spoken to by P.Ws.2, 3 and 4. In view of the fact that they did not accuse the husband (A1) with reference to the demand for dowry, the trial Court acquitted A1. When these witnesses did not choose to accuse A1 husband, there is no reason as to why they speak falsehood against the appellants.

18. As a matter of fact, Ex.P8 series containing four letters written by the first accused to his wife, the deceased and to P.W.3, the father of the deceased would reveal that to what extent, the first accused himself felt and had sympathy for the deceased for the torture she was subjected to at the hands of his parents. These things would make it clear that from the year 1989, the torture at the hands of the appellants started and continued till her death.

19. In fact, in one of the letters, it is stated, while addressing P.W.3 that the deceased informed A1 that she would commit suicide, if she is left with the parents of A1. When there is evidence through P.Ws.3 to 5, who speak about the statement of the deceased that she was being tortured by the appellants demanding the balance of the dowry and abuse of the appellants hurled on P.Ws.2 to 5 that they had no right to question the act of beating the deceased as the balance of the dowry was not given, it can be said that the deceased committed suicide only due to the dowry torture and the last incident relating to the dowry torture has been established through their evidence which can be considered as the incident soon before her death.

20. As the Supreme Court would hold that the phrase “soon before her death” is an elastic expression and can refer to a period either immediately before her death or within a few days or even a few weeks before it. In other words, number of days alone is not a criterion and there should be a perceptible nexus between her death and the dowry-related harassment inflicted on her. If the interval elapsed between the infliction of such harassment and her death is wide, then the Court would be in a position to gauge that in all probabilities the harassment or cruelty would not have been the immediate cause of her death. Under those circumstances, it is to be decided only on the facts and circumstances of each case, whether the said interval in that particular case is sufficient to hold that there is an incident of torture relating to the demand for dowry soon before her death.

21. Admittedly, the deceased was living in the matrimonial home when she committed suicide. It has been established by the prosecution through the materials that only due to the failure of keeping the promise to give the balance of dowry, the victim was tortured by the appellants. It is not the prosecution case that the entire demand relating to dowry was met as agreed by P.Ws.3 and 4. On the other hand, it is the case of prosecution that even though the Seervarisai articles of 12 sovereigns of jewels and cash of Rs.7,000/- were given, P.Ws.3 and 4 were not able to mobilise the money to give the balance.

22. That apart, it is the specific evidence of P.W.5 supported by P.Ws.3 and 4 that when one of the villagers was ready to hand over his ring and chain to the appellants when they demanded for the balance of the dowry, the appellants did not want anything from the villagers, but they wanted only the balance of dowry from P.W.3 and 4.

23. These things would show that the demand for dowry in entirety as agreed by P.Ws.3 and 4 was not met and as such, issue of demand was existing and consequently, the victim was put under continuous harassment by the appellants. Therefore, the conviction under Section 304B as well as under Section 498A is valid and the same is upheld.

24. The minimum sentence for the offence under Section 304B I.P.C. is 7 years. In this case, R.I. for 9 years has been imposed for Section 304B I.P.C. In view of the fact that the appellants are now aged about 62 years and 52 years respectively, it would be proper to reduce the sentence of imprisonment from 9 years to 7 years being the minimum sentence for the offence under Section 304B I.P.C. and accordingly reduced and in respect of the offence under Section 498A I.P.C., the sentence is confirmed.

25. With the above modification in the sentence of imprisonment alone, the appeal is dismissed. The trial Court is directed to take steps to secure the custody of the appellants (A2 and A3) to undergo the remaining period of sentence.

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