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Mahendran-vs-State Rep. By on 15 November, 2002

Madras High Court Mahendran-vs-State Rep. By on 15 November, 2002

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated: 15-11-2002

Coram

The Honourable Mr.Justice M. KARPAGAVINAYAGAM

CRIMINAL APPEAL No.776 of 1995

1. Mahendran

2. Endammal ..Appellants

-Vs-

State rep. by

Inspector of Police,

Gudimangalam Police Station,

Coimbatore District. ..Respondent

Criminal Appeal against the judgment dated 18.9.1995 made in S.C.No. 122 of 1990 on the file of the Court of the Assistant Sessions Judge, Udumalpet, Coimbatore District.

!For Appellants : Mr. K. Mohan Ram

^For Respondent : Mr. O. Srinath,

Govt. Advocate.

:J U D G M E N T

Mahendran, the son and Endammal, the mother were convicted for the offences under Section 4 of the Dowry Prohibition Act and under Sections 498-A and 304-B of I.P.C. and each sentenced to undergo R.I. for ten years. Challenging the same, they have filed this appeal.

2. The case of the prosecution in brief is as follows: "(a) The deceased Velumani got married to the first appellant Mahendran in the year 1984. Dr.Natarajan, P.W.1 is her brother working as a Professor in a Government College. At the time of marriage, 20 sovereigns of gold jewels and other articles were provided as Seervarisai to her. Out of the wedlock, a female child was born.

(b) The deceased Velumani was staying with her husband, the first appellant as well as with her mother-in-law, the second appellant and father-in-law. Not satisfied with the dowry already provided, the appellants harassed the deceased asking her to get some more jewel and also to get a Moped from her parents. At the request of the deceased, P.W.1 and his parents gave some more jewels and also money for purchase of Moped.

(c) Even then, the torture continued demanding more money and jewels. Unable to bear the torture, the deceased Velumani lodged a police complaint against her husband and her mother-in-law, the appellants on 3.9.1985 to P.W.16 Sub Inspector of Police at Peelamedu Police Station. The complaint is Ex.P7. Ultimately, both the parties agreed to settle the matter and made an endorsement of compromise in Ex.P8.

(d) Thereafter, they lived together. Even then, the harassment continued. About this harassment, the deceased used to complain to P.W.1 and P.W.4 Ranganathan, her brothers. Even when she was pregnant, she was driven out from the matrimonial home asking for more jewels. The deceased went to the house of P.W.1 and after birth of the child, the accused demanded jewels for the child as well as cash. Due to these happenings, P.W.1’s mother was hospitalised and ultimately, she died on 17.8.1988. Even after this incident, the harassment at the hands of the appellants continued.

(e) On 25.9.1988 early morning, the deceased Velumani along with her 9 months old child went to the nearby well and jumped into it for committing suicide. On hearing the sound, P.W.2 Ramachandran who is residing nearby got into the well and was able to save only the child, but Velumani got drowned herself and died. The messages were sent to P.W.1 and P.W.4, the brothers of Velumani.

(f) P.W.1 and others came to the house of the accused and on seeing the dead body of the deceased, went and gave the complaint Ex.P1 to P.W.19, the Deputy Superintendent of Police. The complaint was originally registered for the offence under Section 174 Cr.P.C. First appellant also gave complaint and the same was registered under section 17 4 Cr.P.C. Then, P.W.18, the Executive Magistrate held the inquest and submitted his report Ex.P11. P.W.19 D.S.P. took up further investigation.

(g) In the meantime, D.W.1, the Sub Collector also conducted a separate enquiry and submitted his report stating that the death was due to dowry torture. Continuing the investigation, P.W.19 D.S.P. examined other witnesses. P.W.20 another D.S.P. took up further investigation and filed the charge sheet against both the accused under Section 4 of the Dowry Prohibition Act and under Section 498-A I.P.C."

3. The Sessions Court on considering the materials available on record, framed the charges for the offences under Section 4 of the Dowry Prohibition Act and under Sections 498-A and 304-B of I.P.C.

4. On the side of prosecution, P.Ws.1 to 20 were examined, Exs.P1 to P12 were marked. On the side of defence, D.W.1 was examined and Exs.X1 to X3 were marked.

5. Originally, the trial Court acquitted the accused. Challenging the same, the first informant P.W.1 Dr.Natarajan filed a revision before this Court. After hearing the counsel for the parties, this Court on considering the materials available on record, remitted back the matter for fresh consideration. After remittal, the accused examined one Srinivasa Naidu as D.W.2. Ultimately, the trial Court convicted the accused for the offences under Section 4 of the Dowry Prohibition Act and under Sections 498-A and 304-B of I.P.C.

6. Challenging this conviction, the counsel for the appellants would strenuously argue that Section 4 of the Dowry Prohibition Act and Section 304-B of I.P.C. would not get attracted, since there is no material that there was a torture with reference to the demand of dowry, that too soon before the death. He would further contend that the evidence adduced by prosecution is not consistent so as to attract the offence under Section 498-A I.P.C. as well and therefore, the appellants are liable to be acquitted.

7. In order to substantiate his plea, the counsel for the appellants would take me through the entire evidence and cite the decisions in RAMAIAH AND OTHERS v. STATE BY KARAMBAKUDI POLICE STATION (1999(1) L.W. (Crl.) 127) and SHAM LAL v. STATE OF HARYANA (1997(9) S.C.C. 7 59), wherein this Court as well as the Supreme Court, while dealing with the cases of conviction under Sections 304-B and 498-A I.P.C., acquitted the accused in respect of Section 304-B I.P.C., though confirmed the conviction under Section 498-A I.P.C.

8. On the other hand, the learned Government Advocate by citing the following decisions would strenuously contend that the materials available on record would satisfy the ingredients of all the offences and as such, the conviction and sentence imposed by the trial Court against both the appellants are perfectly justified:

1) SHANTI v. STATE OF HARYANA (1991 S.C.C. (Cri)191); 2) STATE OF H.P. v. NIKKU RAM (A.I.R.1996 S.C.67);

3) VENUGOPAL v. STATE OF KARNATAKA(A.I.R.1999 S.C.146); 4) KANS RAJ v. STATE OF PUNJAB (2000 S.C.C.(Cri)935); 5) SATVIR SINGH v. STATE OF PUNJAB (2002 S.C.C.(Cri)48.

9. I have carefully considered the submissions made by the respective counsel and gone through the entire records.

10. According to prosecution, the appellants, husband and mother-in-law respectively, continuously tortured the deceased from the year of marriage, namely 1984 over dowry demand and even though the complaint was given by the deceased against both of them regarding dowry torture to the police in 1995 and the same ended in compromise, the illegal dowry demands were continued and even after the birth of a female child 9 months ago, both of them tortured the deceased demanding more cash and jewels as dowry and unable to bear the torture meted out to her at the hands of the appellants, the deceased along with her 9 months old female child jumped into a nearby well for committing suicide and the child alone was rescued alive, but the deceased died in the well due to drowning.

11. The main plank of the arguments by the counsel for the appellants is that after the compromise was entered into between the parties as per Ex.P8 on 3.9.1985, there was no dowry torture, according to the witnesses examined by the prosecution and as such, the offence under Section 304-B I.P.C. is not made out, in view of the fact that the main ingredient of dowry torture ‘soon before the death of the deceased’ is conspicuously absent. When the said ingredient is absent, the presumption under Section 113-B of the Evidence Act would not arise and as such, the burden never shifts on the accused to rebut the said presumption and consequently, the accused are liable to be acquitted for the offence under Section 4 of the Dowry Prohibition Act and under Section 304-B of I.P.C. He would further contend that the demands stated to have been made by the accused would not be construed to be dowry, as it would not satisfy the definition of dowry and even assuming that it is a dowry, P.W.5 would state that all the demands were met and as such, there is no material to show that the torture continued due to the dowry demand.

12. Before dealing with this contention in the light of the materials available in this case, let us first refer to the relevant provisions in order to appreciate the said contention.

13. Section 304-B I.P.C. reads as follows:

"304-B. 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 purposes of this sub-section, "dowry" shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 19 61. (2) …. "

14. The above section lays down that 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 the death of the woman she was subjected to cruelty or harassment by her husband or his relations for or in connection with any demand for dowry, such death shall be called "dowry death". As per the explanation to the section, the meaning of the dowry has been defined in Section 2 of the Dowry Prohibition Act. This is as follows:

"2. Definition of "dowry".– In this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly —

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person.

at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal

Law (Shariat) applies."

15. Keeping in view the object of these sections, a new Section 113-B was introduced in the Evidence Act to raise a presumption as to dowry death. It reads as under:

"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 had caused the dowry death.

Explanation.–For the purpose of this section, "dowry death" shall have the same meaning as in Section 304-B of the Indian Penal Code."

16. In order to seek a conviction against a person for the offence of dowry death, the prosecution is obliged to prove the following essentials: (1) The death of a woman should be caused by burns or bodily injury or otherwise than under normal circumstances;

(2) Such death should have occurred within seven years of her marriage;

(3) She must have been subjected to cruelty or harassment by her husband or any relative of her husband;

(4) Such cruelty or harassment should be for or in connection with demand for dowry; and

(5) To such cruelty or harassment the deceased should have been subjected soon before her death.

17. As and when the aforesaid essentials are established, a presumption of dowry death shall be drawn against the accused under Section 1 13-B of the Evidence Act. It has to be kept in mind that presumption under Section 113-B is a presumption of law.

18. No presumption under Section 113-B of the Evidence Act would be drawn against the accused, if it is shown that after the alleged demand, cruelty or harassment the dispute stood resolved and there was no evidence of cruelty and harassment thereafter. However, mere lapse of some time by itself would not provide to an accused a defence, if the course of conduct relating to cruelty or harassment in connection with the dowry demand is shown to have existed earlier in time not too late and not to stale before the date of death of the woman.

19. "Soon before" is a relative term which is required to be considered under specific circumstances of each case. No straitjacket formula can be laid down by fixing any time-limit. This expression is pregnant with the idea of proximity test. 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 has to be understood and determined under the peculiar circumstances of each case.

20. In relation to dowry death, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand of dowry is shown to have persisted, it shall be deemed to be "soon before death".

21. Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. In other words, there should be a perceptible nexus between her death on the dowry-related harassment or cruelty inflicted on her.

22. The phrase "soon before her death" is an elastic expression. It can refer to a period either immediately before her death or within a few days or even a few weeks before it. If the interval elapsed between the infliction of such harassment or cruelty and her death is wide, 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. It is hence for the Court to decide, on the facts and circumstances of each case, whether the said interval was sufficient to satisfy the concept of "soon before her death".

23. In the light of the above principles laid down in SHANTI v. STATE OF HARYANA (1991 S.C.C.(Cri) 191, STATE OF H.P. v. NIKKU RAM (A.I.R.1996 S.C.67), KANS RAJ v. STATE OF PUNJAB (2000 S.C.C.(Cri) 9 35) and SATVIR SINGH v. STATE OF PUNJAB (2002 S.C.C.(Cri) 48), we have to see whether all ingredients contemplated under Section 304-B I.P.C. have been satisfied.

24. P.W.1 Natarajan and P.W.4 Ranganathan are the residents of Aavarampalayam. The deaceased was staying along with the husband and mother-in-law at Kallapalayam. On getting the information that the deceased died by falling into a well situate nearby to the house of the accused, both of them along with the relatives went to the scene and enquired the residents of the village and came to know that she was tortured by the first accused, resulting in her committing suicide. P.Ws.1 and 4 cannot speak about what actually happened in the village of the accused, as they belong to different village. However, both of them speak about the demand of dowry over which the deceased was tortured earlier. According to them, at the time of marriage, they gave jewels and cash and within two months, the deceased came back to their house and informed them that the accused demanded more money for purchase of Moped and other things. P.W.1 gave Rs.2,000/- for purchase of Moped, but even then, the torture continued demanding more money and jewels.

25. Every time, P.Ws.1 and 4, the brothers used to pacify both the deceased and the first accused and made them unite by trying to meet the demand made by the accused. However, the deceased was driven out again by the first accused asking for more dowry. Consequently, the deceased gave a complaint Ex.P7 to P.W.16, the Sub Inspector of Police on 3.9.1985. In Ex.P7, it has been specifically mentioned that the accused demanded the amount for the purchase of Moped and after beating the deceased, the first accused obtained gold chain of 4 sovereigns from the deceased and sold the same and again she was driven out insisting that she must get jewels of 10 more sovereigns.

26. This complaint was enquired into by P.W.16,the Sub Inspector of Police and both A1 and the deceased made an endorsement under Ex.P8 that they would settle the matter among themselves and accordingly, the case was dropped against the accused. This was on 3.9.1985. Thus, it is clear from the evidence of P.Ws.1 and 4, the brothers, and P. W.16 Sub Inspector of Police that there was a demand of dowry and the complaint of dowry demand given to the police ended in compromise and consequently, both joined together.

27. The first accused himself would admit in Section 313 Cr.P.C. statement that after the enquiry over the complaint, he pacified the deceased and then took her to his house and again continued their matrimonial life. Admittedly, this was within one year after the marriage.

28. There is no dispute in the fact that the marriage took place on 3.6.1984. The deceased died on 25.9.1988. Therefore, it has to be seen whether the demand of dowry and torture over the same continued subsequent to the compromise entered into between them till her death. Admittedly, even according to the accused, when the deceased died, the child which was born to them was 9 months old. According to P. Ws.1 and 4, even subsequent to the compromise, the demand of dowry in the form of cash and jewels was continued and unable to bear the torture, the deceased would use to come back to the parental home and collect the money from P.Ws.1 and 4 to satisfy the demand of the accused.

29. This evidence has been corroborated by P.W.5, residing in the same village, who is a friend of P.W.1’s family. The evidence of P.W.5 would reveal that even after the compromise, the deceased came to the house of P.Ws.1 and 4 and received the cash and jewels and handed over the same to the accused. According to P.W.5, the suffering over the dowry torture by the deceased had also made her mother to lay down in death bed and ultimately, she died on 17.8.1988. Even after her death, some more amount was demanded and after all the ceremonies were over, the deceased was sent to the matrimonial home along with money. These things would show that the torture as well as the demand of dowry had continued till her death.

30. It is contended by the counsel for the appellants that even assuming that some cash and jewels were demanded, it cannot be construed to be dowry demand, as it would not satisfy the requirements of definition of dowry.

31. To meet the above contention, it is worthwhile to refer to some of the observations made by the Supreme Court in the decision reported in A.I.R.1996 S.C.67 (supra):

"The definition as amended by the aforesaid two Acts does not, however, leave any thing to doubt that demands made after the solemnization of marriage would be dowry. This is because the definition as amended reads as below:-

"In this Act "Dowry" means any property or valuable security given or agreed to be given either directly or indirectly–

(a) By one party to a marriage to the other party to the marriage; or (b) By the parents of either party to a marriage or by any other person to either party to the marriage or to any other person; at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of person to whom the Muslim Personal Law (Shariat) applies." (Explanations omitted being not relevant)

The aforesaid definition makes it clear that the property or the valuable security need not be as a consideration for marriage, as was required to be under the unamended definition. This apart, the addition of the words "any time" before the expression "after the marriage" would clearly show that even if the demand is long after the marriage the same could constitute dowry, if other requirements of the section are satisfied."

32. The above said observation would clearly indicate that any property or valuable security demanded as a dowry even long after the marriage, the same should the construed to be dowry as defined in the section.

33. In this regard, the evidence of P.W.2 assumes importance. P.W.2 Ramachandran is the beighbour of the accused. According to him, one or two months prior to the occurrence when he asked the deceased as to the frequent quarrels in her house, the deceased told him that she was being tortured by the accused asking her to get more dowry for the accused. The relevant portion of his evidence is as follows:

@ehd; ntYkzpaplk; mof;fo rz;il nghLfpwha; vd;W nfl;lnghJ. khkpahUk;. fztUk; jk;gp tPl;ow;Fk;. mz;zd; tPl;ow;Fk; ngha; rPh; th’;fp th vd; W bjhe;jut[ gz;qtjhf brhd;dhs;/ ,J rk;gtj;jpw;F 1. 2 khj’;fSf;F Kd; dhy; ,t;tpjkhf brhd;dhs;/@

(When I asked Velumani as to why you are quarrelling frequently, she told that her mother-in-law and husband were torturing her to go to the houses of her brothers and get dowry from them. She told like this 1 or 2 months prior to the occurrence.)

34. If the above statement is true, it is clear, as stated by P.Ws.1 and 4, that A1 was never satisfied even though both of them tried to meet the demands as far as possible.

35. According to P.W.6 Sarojini and P.W.8 Perumalsamy, the quarrel with the deceased by the first accused was a regular affair. On the date of occurrence, the deceased was beaten inside the house of the accused. P.W.6, the sister of P.W.2 came out on hearing the sound of the deceased. After few minutes, she went back to her house thinking that it was a routine quarrel.

36. P.W.8 Perumalsamy, the father of P.W.2, who is another neighbour, would state that at about 7.00 a.m. on the date of occurrence, he heard the noise from the house of the accused and found that the deceased was crying asking the first accused not to beat her any more as it was paining.

37. This was witnessed by P.W.9 Muthammal, another neighbour who heard the sound of the deceased crying that she may not be beaten any more. But however, she did not enter into the house of the accused in order to help her, since they happened to notice the quarrel and beating sound frequently.

38. This would show that there was a consistent quarrel in which the deceased was tortured by the first accused, in the light of the evidence of P.W.2, who stated that he was informed by the deceased herself that she was being harassed by the first accused demanding more dowry.

39. As held by the Supreme Court in 2000 S.C.C.(Cri) 935 (supra), the statements of the deceased made to any person which are directly connected with or related to her death, the said statements would clearly fall under Section 32 of the Evidence Act and as such, it is admissible and the same would apply not only to the case of homicide, but also to the case of suicide.

40. Under the above well laid proposition, the evidence of P.W.2 who is an independent witness and also residing next to the house of the accused would clinchingly prove that the deceased was subjected to harassment and torture continuously for long time over the demand of dowry.

41. Regarding the falling into the well and committing suicide by the deceased along with the female child, we have got the evidence of P.Ws.2, 3 and 6 to 9. Their houses are situated very near to the house of the accused. This is clear from the perusal of the observation mahazar Ex.P2.

42. According to P.W.2, on hearing the sound, he went to the scene and he was told that the deceased along with the child jumped into the well. At that point of time, the first accused was standing nearby. Then, P.W.2 with the help of a rope got into the well and attempted to save both the deceased and child. However, he was able to rescue the child alone.

43. This evidence has been supported by other witnesses, namely P. Ws.3 and 6 to 9. Moreover, the evidence of these witnesses with reference to this aspect of the evidence has never been challenged. On the other hand, D.W.2 Srinivasa Naidu who was examined on the side of the accused himself would state that the deceased jumped into the well along with the child and P.W.2 got into the well and was able to rescue the child alone.

44. According to the witnesses, the first accused did not make any attempt either to rescue the deceased and the child or to assist P.W.2 . Next day only, the body of the deceased was taken out from the well on the complaint Ex.P1 given by P.W.1, and the complaint Ex.P10 given by the first accused, the case was registered under Section 174 Cr.P.C. by P.W.17,the Sub Inspector of Police.

45. P.W.18 Tahsildar conducted inquest next day and sent a report Ex.P11 stating that the deceased committed suicide by jumping into the well. In the subsequent enquiry conducted by D.W.1 Sub Collector, D.W.1 sent the report Ex.X1 stating that the deceased died in the abnormal circumstances.

46. The above factors would make it obvious that the prosecution has established that the deceased died in the abnormal circumstances by committing suicide and her death had occurred within seven years of her marriage and before that, the deceased was subjected to harassment by the first accused demanding dowry soon before her death, thereby made out the case under Section 304-B I.P.C. Consequently, the presumption under Section 113-B of the Evidence Act has raised.

47. This presumption, as indicated above, is a presumption of law whereby the burden shifts on the first accused to rebut the said presumption.

48. Let us now see whether such a presumption has been rebutted.

49. The first document is the complaint which was given by the first accused to P.W.17 Sub Inspector of Police. He admitted that he gave the said complaint to P.W.17. In the said complaint, it has been specifically stated that the deceased fell into the well on her own accord unable to bear her stomach pain. Strangely, this defence has never been put as suggestion to any of the witnesses examined by the prosecution. Similarly, this defence has not been pleaded even when the accused were questioned under Section 313 Cr.P.C. On the side of the defence, D.W.2 Srinivasa Naidu was examined. He has also not pleaded this defence.

50. In this context, it is to be noticed that D.W.2 was not examined as a defence witness in the earlier trial which ended in the year 19 91. After the order of remand passed by this Court, the accused examined the said witness as D.W.2 in the year 1995. According to D.W.2, in the early morning of 25.9.1988, the deceased picked up quarrel with Pappu, a woman neighbour, since she developed illicit intimacy with her husband (A1) and when this was informed by A2 to A1, there was a quarrel and thereafter, the deceased along with the child fell into the well. He himself would admit in his evidence that P.W.2 Ramachandran came to the scene and got into the well and rescued the child.

51. As indicated above, this plea has never been suggested to P.W.2 in his cross-examination. He also would admit that the houses of P. Ws.2, 3, 6 and 7 are situated very near to the house of the accused. He stated in the cross-examination that he mentioned this incident to Sub Collector. But, it was never elicited from D.W.1 Sub Collector that such a statement was given by D.W.2 Srinivasa Naidu to him. On the other hand, D.W.1 would state in his report Ex.X1 that death of the deceased was not due to the illicit intimacy of A1 with Pappu, but it was only due to the dowry torture.

52. There was no reason as to why the said Srinivasa Naidu (D.W.2) was not examined in the earlier trial. Furthermore, the plea of the defence made through D.W.2 in the year 1995 before the trial Court is quite contradictory to the facts mentioned in Ex.P10, the complaint given by the first accused in the year 1988, i.e. on the date of occurrence, 25.9.1988.

53. Even during the questioning under Section 313 Cr.P.C., his answer to the question No.4 is not consistent with the contents of Ex.P10, his complaint. As per Ex.P10, he went to the garden on 25.9.1988 at 7.00 a.m. and came back to the house and at that time, the deceased jumped into the well due to her stomach pain. No reference about the child was mentioned therein. But, in the statement under Section 31 3 Cr.P.C., he said that on 2.9.1988 night itself, he left the village for attending to his job and as such, he was not available when the occurrence had taken place. But, according to D.W.2, the first accused was standing there, when the deceased along with the child jumped into the well.

54. All the other witnesses who were present at the time of occurrence had stated that the first accused did not make any attempt to save the deceased and child. When such is the evidence by the prosecution witnesses, the first accused must have explained as to why he did not make any attempt to rescue the deceased and child.

55. The only suggestion put to all the local witnesses, namely, P. Ws.2, 3 and 6 to 9 that they wanted to get the land of the accused on lease and they could not succeed and so, they became inimical towards them.

56. This suggestion has no basis and the same has been rightly denied by the witnesses. If P.W.2 had any enmity with the accused family, he would not have made attempt to save both the deceased and child. On the other hand, D.W.2 himself would admit that P.W.2 alone got into the well and rescued the child. Even D.W.2 did not state anything about the enmity between the accused family and the witnesses.

57. As a matter of fact, the second accused would state in her statement under Section 313 Cr.P.C. that P.W.8 Perumalsamy is her rpj;jg; gh (junior paternal uncle). Thus, it is clear that all these witnesses are not only the local residents, who are having the houses nearby, but also the relatives of the accused and as such, there is no necessity for them to speak falsehood against the first accused. Hence, it has to be held that the presumption, which has been drawn under Section 113-B of the Evidence Act has not been rebutted.

58. The counsel for the appellants would cite two authorities, namely, 1999(1) L.W. (Crl.) 127(supra) rendered by this Court and 1997(9) S.C.C. 759 (supra). In both these decisions, it has been held on facts by this Court as well as the Supreme Court that subsequent to the compromise in the panchayat, no evidence was let in by the prosecution to establish that dowry torture continued thereafter and under those circumstances, the accused were acquitted in respect of Section 304 -B I.P.C., though they were convicted for Section 498-A I.P.C. But, those decisions would not apply to the present facts of the case, as, in my view, as indicated above, the dowry torture continued on the deceased by A1 even after the compromise till her death.

59. However, the evidence which is available on record with reference to the complicity of A2, the mother of A1, in my view, is not sufficient to find her guilty for the above offences. P.Ws.1 and 2 would make general allegation with reference to the demand not only against the mother-in-law (A2), but also against the father-in-law, who has not been arrayed as an accused.

60. P.W.4, another brother of P.W.1 would speak about A1 alone regarding the dowry demand and torture. P.W.5, a friend of P.W.1’s family did not implicate A2 at all. P.W.2, who is the star witness in this case, would state that A1 was simply standing near the well and A2 alone cried stating that her daughter-in-law had put a stone on head by jumping into the well. P.W.3 also would support this statement. P.W.6, another neighbour had stated that there was frequent quarrel only between the first accused and the deceased. Similarly, P.Ws.8 and 9, the other neighbours would not refer to the presence of A2.

61. Apart from this, on the complaint Ex.P7 given by the deceased on 3.9.1985, the enquiry was conducted by P.W.16 Sub Inspector only with A1 and the deceased. Both of them gave a letter Ex.P8 stating that they would settle the matter among themselves. This would show that A2 was not interrogated with reference to the above complaint by the police as the deceased was not serious against A2 with reference to the dowry torture. All these things put together would make it clear that the available materials would not prove the offences for which A2 was tried.

62. It is also noticed from the evidence that P.W.19, the Investigating Officer handed over the female child Dhivya Prabha to A2, as the relative witnesses of the deceased were not prepared to take the child. Even in the statement under Section 313 Cr.P.C., the second accused stated that the child Dhivya Prabha is with her. Under those circumstances, A2 is liable to be acquitted.

63. As far as A1 is concerned, the discussion made with reference to the materials available on record for the offence under Section 304-B I.P.C. would apply to the other sections, namely Section 4 of the Dowry Prohibition Act and Section 498-A of I.P.C. also.

64. As held by the Supreme Court in 1991 S.C.C. (Cri) 191 (supra), though Sections 304-B and 498-A I.P.C. deal with two distinct offences, "cruelty" is a common essential to both the sections and if the same is established, then the accused can be convicted under both the sections, but no separate sentence need be awarded under Section 498A, in view of the substantive sentence being awarded for the major offence under Section 304-B.

65. In this case, the trial Court sentenced the accused to undergo R.I. for 10 years for all the three offences. This is wrong. Section 4 of the Dowry Prohibition Act would provide for the maximum punishment of two years R.I. and fine. Section 498-A I.P.C. would provide for the maximum punishment of three years R.I. and fine. Only Section 304-B I.P.C. would provide for the punishment for a term which shall not be less than seven years R.I. and which may extend to imprisonment for life. Therefore, the imposition of 10 years R.I. for each of the offences is wrong.

66. Under those circumstances, the interest of justice would be met by imposition of 7 years R.I. being the minimum for the offence under Section 304-B I.P.C. and there need not be any separate sentence for the offences under Section 498-A I.P.C. and Section 4 of the Dowry Prohibition Act.

67. In fine, the appeal in respect of the second appellant (A2) is allowed setting aside the conviction and sentence imposed on her and she is acquitted of all the charges. The bail bond executed by her shall stand cancelled. The appeal in respect of the first appellant ( A1) is dismissed confirming his conviction and reducing the sentence from 10 years R.I. to 7 years R.I. for the offence under Section 304 -B I.P.C. The trial Court is directed to take steps to secure the custody of the first appellant (A1) to undergo the remaining period of sentence. Thus, the appeal is partly allowed.

15-11-2002

Index: Yes

Internet:Yes

mam

To

1) The Assistant Sessions Judge, Udumalpet.

2) -do- the Principal Sessions Judge, Coimbatore.

3) The Public Prosecutor, High Court, Madras.

4) The Inspector of Police, Gudimangalam Police, Station, Coimbatore.

5) The Superintendent, Central Prison for Women, Vellore. 6) -do- Central Prison, Coimbatore.

7) The District Collector, Coimbatore.

8) The Inspector General of Police, Chennai-4.

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