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R.Rajalakshmiammal vs State By The Deputy … on 17 April, 2018

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Dated: 17.04.2018

RESERVED ON: 22.03.2018

PRONOUNCED ON: 17.04.2018

CORAM

THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN

Crl.A.(MD)No.146 of 2007

R.Rajalakshmiammal Appellant

Vs

State by the Deputy Superintendent of Police
Taluka Police Station, Kumbakonam
Thanjavur District

Respondent

Prayer:- This Criminal Appeal is filed against the judgement of conviction
and sentence, dated 13.3.2007, made in SC.No.128 of 2006, by the Principal
Sessions Judge, Thanjavur.

For Appellant : Mr.M.Mohana Sundaram

For Respondent : Mr.Prabhu Ramachandran

:JUDGEMENT

This criminal appeal has been filed by the Appellant/accused,
against the judgement, dated 13.3.2007, made in SC.No.128 of 2006, by the
Principal Sessions Judge, Thanjavur, +convicting and sentencing the
Appellant, for the offences under Section 498 of IPC to undergo Rigorous
Imprisonment for three years and to pay a fine of Rs.5000/-, in default to
undergo Rigorous Imprisonment for six months and under
Section 304(B) of IPC
to undergo Rigorous Imprisonment for 10 years and to pay a fine of
Rs.10,000/-, in default, Rigorous Imprisonment for one year and ordering the
sentences to run concurrently.

2. The Trial Court, upon finding the accused guilty under both
Sections referred to above, had convicted and sentenced him under
Section
498A of IPC to undergo Rigorous Imprisonment for three years and to pay a
fine of Rs.5,000/-, in default, to undergo Rigorous Imprisonment for six
months.

3. The Trial Court, had further sentenced the accused for the
offence under
Section 304(B) of IPC to undergo Rigorous Imprisonment for 10
years and to pay a fine of Rs.10,000/-, in default, to undergo a further
Rigorous Imprisonment for one year.

4. The accused was charged by the Deputy Superintendent of
Police, Taluk Police Station, in Cr.No.175 of 2005, who had laid a charge
sheet for the commission of offences under
Sections 498A and 304(B) of IPC.

5. The facts leading to filing of the charge sheet against the
accused, P.Rajalakshmiamma, were that she had subjected her daughter in law,
Mahalakshmi, who was the wife of her son, Sukumar, to cruelty, by abusing
her, for not bringing sufficient dowry and on the date of the incident,
chasing her out of the house, by pulling her hair and literally throwing her
out of the house and that owing to such acts of sustained cruelty,
Mahalakshmi, on 09.07.2005 in the morning at 7.00 a.m. poured kerosene over
herself and died as a direct cause of burn injuries suffered due to self
immolation.

6. The brief facts of the case are that the husband of the
accused, Pappusamy, who resided at Thelungu Street, Tharasuram, Kumbakonam,
was employed in the Tamil Nadu Electricity Board. He and the accused had two
sons. The first son, Sukumar, whose wife Mahalakshmi had died in the
circumstances stated above, was a physically challenged person. He had no
effective movement in both legs. After the demise of Pappusamy, the second
son was offered compassionate appointment in the Tamil Nadu Electricity
Board. Sukumar did not have any employment. Marriage could not be arranged
for him though he was first born, owing to his physical disability.
Mahalakshmi was the daughter of Gnanammal and Sekar, who were subsequently
examined as PW.1 and PW.2. They did not come from affluent background. They
did have difficulties in giving her in marriage owing to their economic
condition.

7. The evidence and the records reveal that the deceased
Mahalakshmi was a young girl, aged about 18 years and was said to be a
beautiful girl. Her mother Gnanammal worked as a coolie and her father was
working as a sales person, selling pillows. He was under contract
employment under PW.3, Subramanian. PW.3 knew the family of the accused. He
also knew that the accused had a son, who was physically challenged and that
the accused was looking for a bride for him. He, therefore suggested to the
parents of Mahalakshmi that they could give her daughter in marriage to
Sukumar, son of the accused, even though he had physical disability in both
legs. Not having many options, Mahalakshmi was married to Sukumar. As stated
above, she was a young girl. She was tied down to domestic work from the
date of her marriage. She did not have any opportunity even to speak to any
third person or even to go out of the house. These facts come out in the
evidence of PW.6, Banu, who was a resident close to the house of the accused.

8. PW.6 had given evidence that Mahalakshmi was put under severe
conditions by the accused not to leave the house, not to speak to anyone and
not even to go out of the house. This evidence was also corroborated by the
evidence of PW.3, Subramanian, who was intrumental originally in suggesting
the marriage. He later stated that it was to his direct knowledge that
Mahalakshmi was placed under direct restraint by the accused and her family.
However, there is no evidence by PW.3 that there was a demand of dowry.

9. There is evidence of both PW.1 and PW.2 that the accused bore
the entire marriage expenses and also the expenses towards furnishing of
sreedana items during the festivals, like, Pongal and Deepavali and such
other functions. A child was born to Mahalakshmi. However, since the child
had a medical ailment, the child had to be taken to the hospital.

10. There is further evidence by PW.2 that the accused abused
Mahalakshmi that she was not feeding the child and that she did not take care
of the child. Mahalakshmi had further complained that the accused had caused
burn injuries to her. As a matter of fact, PW.1 and PW.2 were also prevented
from visiting Mahalakshmi at the residence and also in the Hospital when the
child was born. On the date of the unfortunate incident, early in the
morning at around 2.00 a.m. the child developed some medical complications
and the accused and the Mahalakshmi had taken the child to the hospital.
They came back at around 4.00 a.m. The accused was said to have abused
Mahalakshmi.

11. From the evidence, the following facts emerged:-
i.Mahalakshmi had married the son of the accused, namely, Sukumar.

ii.Sukumar was a physically handicapped person, particularly he has no
movement in his both legs.

iii.Mahalakshmi came from an economically backward family.

iv.Mahalakshmi was married away to a physically challenged person.

v.Mahalakshmi was a young and beautiful girl, aged about 18 years.

vi.Post marriage restrictions were placed on Mahalakshmi, preventing her from
going out, meeting people and interacting with anyone.

vii.A child was born.

viii.The accused hurled continuous abuses at Mahalakshmi.

ix.Mahalakshmi died of self immolation.

12. The Trial Court had found a direct link between the abuses
hurled by the accused and the death of Mahalakshmi. The Trial Court had
noted a presumption under
Section 113 of IPC that there is a presumption of
abetment of suicide of a married women if it is shown that she committed
suicide within 7 years from the date of marriage and if it is further shown
that she had been subjected to cruelty. In the present case, the marriage
between Mahalakshmi and Sukumar took place on 16.5.2004 and she died on
9.7.2005. It is therefore obvious that she died within 7 years of marriage.

13. The issues to be determined in this aspect are whether such
reason to commit suicide was a direct effect of cruelty inflicted by the
accused. Before this is established, it must be further primarily
established that cruelty was actually inflicted on the deceased.

14. This Court heard the arguments of the learned counsel on
either side.

15. The learned counsel for the Appellant, before going into the
facts of the case, placed reliance on AIR 1991 SC 1226 (Shanti and another
Vs. State of Haryana) wherein the Honourable Supreme Court had held that
Section 498A and Section 304B are mutually exclusive and though charges can
be framed separately under each Section, separate sentence under
Section 498A
is not necessary in view of the substantive sentence under
Section 304B of
IPC.

15. In present case, the accused had been convicted under both
Sections 304B and 498A of IPC. The Trial Court, while imposing the sentence,
had convicted and sentenced the accused to undergo 10 years Rigorous
Imprisonment and to pay a fine of Rs.10,000, in default to undergo further
Rigorous Imprisonment for one year, for the commission of offence under
Section 304B and also independently imposed a sentence of three years
Rigorous Imprisonment and a fine of Rs.5,000/- for commission of offence
under
Section 498A of IPC, in default in payment of fine, to undergo a
further period of six months Rigorous Imprisonment.

16. The learned counsel for the Appellant pointed out that
imposing two separate sentences runs contrary to the dictum laid down by the
Honourable Supreme Court and stated that once the accused had been convicted
and sentenced under the substantive
Section 304(B) of IPC, a separate
sentence cannot and should not be imposed under
Section 498A of IPC. The
point is well taken and in so far as the imposing of sentence under
Section
498A of IPC is concerned, the contention of the learned counsel for the
accused has to be accepted.

17. The learned counsel for the Appellant, then, drew the
attention of this Court to
Section 304(B) of IPC, wherein under sub section
(2), it has been stated that 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. In the sentencing section, there
is no provision given for imposition of fine or for any default sentence for
non payment of fine. The learned counsel pointed out the sentence imposed by
the Trial Court, which had imposed sentence of 10 years Rigorous Imprisonment
and also had imposed a fine of Rs.10,000/- and had further held that in
default in payment of fine, further imprisonment of one year Rigorous
Imprisonment should be imposed. When the Section does not provide for
imposition of fine, the Trial Court has taken on itself to impose fine.
Consequently, that part of the sentence, imposing a fine of Rs.10,000/- has
to be necessarily interfered with by this Court. Accordingly, for the
offence under
Section 304B of IPC, the sentence, imposing a fine of
Rs.10,000/-, in default to undergo one year Rigorous Imprisonment, is to be
set aside.

18. The learned counsel for the Appellant then pointed out the
ingredients of sub section (1) of
Section 304(B) of IPC. Section 304(B)
related to dowry death. According to
Section 304(B)(1) of IPC, 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 if it
is shown that soon before her death she was subjected to cruelty or
harassment by her husband or any relative of her 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.

19. A careful reading of the said provision reveals that death
of a woman should be caused or bodily injury or should have occurred
otherwise than under normal circumstances. In the present case, Mahalakshmi
died of burn injuries caused due to self immolation. Consequently, that part
of the Section is attracted directly.

20. The second ingredient is that such death should have
occurred within seven years of marriage. As found out above, the marriage
between the deceased and Sukumar took place on 16.5.2004 and Mahalakshmi died
owing to burn injuries caused by self immolation by pouring kerosene on
herself and lighting herself on 9.7.2005, which is just in about 14 months
period, naturally less than seven years. The second ingredient of
Section
304(B) of IPC is also satisfied and this Section attracts itself to the death
of Mahalakshmi.

21. The third ingredient is that it should be shown that before
her death, she had been subjected to cruelty or harassment by her husband or
any relative of her husband. In the present case, it has been alleged by the
Prosecution that the accused herein, who is her mother in law, the mother of
the husband, had abused Mahalakshmi. But, the further ingredient is that
such cruelty must be in connection with the demand of dowry.

22. In the present case, according to the learned counsel for
the Appellant, there was no demand for dowry. The learned counsel placed
reliance on the evidence of PW.1 and PW.2, who are the parents of Mahalakshmi
for this argument put forth by him. For this purpose, to determine whether
the argument put forth by the learned counsel for the Appellant can be
considered by the Court or not, a careful analysis of the evidence of PW.1
and PW.2 would have to be undertaken by this court.

23. PW.1, who is the mother of Mahalakshmi, in her chief
examination, had stated as follows:-

@16/5/2004 vd; kfs; kfhyl;rkpf;F vjphp kfd;nghr’;Ff;F jpUkzk; bra;J
itj;njhk;/ fy;ahzj;jpd; nghJ rPh; thpirfs; bra;njd;/ rhpahd rPh; thpir
bra;aKoatpy;iy vd;W vjphp tpnuhjk; itj;jpUe;jhh;///// @

24. In the chief examination extracated above, PW.1 had deposed
that the accused had enmity or at least anger for not providing sufficient
sreedana at the time of marriage. The witness has further stated that
?filapy; ghh;j;jpUe;njd;/ mg;nghJ vd;id bfhLik gLj;Jtjhf vd; bgz; vd;dplk;
brhd;[email protected]/ Further evidence of PW.1 is that there was cruelty inflicted on
her. As a matter of fact, there is further evidence as follows:-
@M!;gj;jphpapy; vd;id mDkjpf;ftpy;iy mjd; gpwF vd;id bgz;iz ghh;f;ftpy;iy/
gpnujkhf jhd; ghh;j;njd;/@
This sentence is very damaging. The evidence is that the parents of
Mahalakshmi were prevented from seeing their daughter in the hospital when
she gave birth to a child. The denial of the comforting presence of her
mother is an act of cruelty inflicted on Mahalakshmi.

25. During the cross examination, PW.1 has stated as follows:-
@vd; kUkfd; Cdk; cs;sth; vd;gjhy; vjphpia rhh;e;J ,Ue;jhh;/ rPh;thpir xd;Wk;
ntz;lhk;/ bgz;bfhLj;jhy; nghJk; vd;W brhd;dhh;fs;/@

This has been relied on by the learned counsel for the Appellant, stating
that there was no demand for dowry. But, there is a further statement in the
cross examination, which is as follows:-

@vjphp jpUkzj;jpw;F Kd; bgz; nfl;Fk;nghJ rPh; thpir vJt[k; ntz;lhk; vd;W
brhd;dhh;/ Mo jPghtsp vjphpna bra;J bfhz;lhh;/ tisafhg;gpw;F 500 U:gha; gzk;
nfl;lhh;fs;/ mij vd;dhy; bfhLf;fKoatpy;iy/@

26. It is clear that there is a statement that there was a
demand for payment of money, which PW.1 was not able to discharge. In this
connection, it must be kept in mind that any demand for dowry would only be
relative to the economic condition of the person to whom the demand is made.
For PW.1, the demand of Rs.500 is still a demand of an amount which she could
not satisfy. It can also be interpreted that the accused could have even
abused the deceased that PW.1 could not satisfy even a meagre demand of
Rs.500. The said abuse would also be cruelty in one form. The demand for
dowry need not always be for an exorbitant sum. It must be for an amount or
for a product, which is just out of reach of the person, to whom the demand
is made.

27. During her cross examination, PW.1 has further stated that
?vd; kfs; rhtjw;F 15 ehl;fs; Kd;g[ filapy; itj;Jg;ghh;f;Fk;nghJ vjphp vd;
kfis bfhLik gLj;jpaij brhd;dJ/@
This statement in cross examination is also very categorical. The deceased
had spoken about cruelty inflicted on her.

28. PW.2, who is the father, in his chief examination, has
stated as follows:-

@vd; kfis jpUkzk; bra;J bfhLj;jjpy; ,Ue;J gpurtk; MFk; tiu vjphp tPl;oy;
eh’;fs; ngrf;TlhJ vd;W vjphp tPl;oy; fz;oj;Jtpl;lhh;fs;/ vd; bgz;zplk;
nfl;ljw;f vd; khkpahh; v’;fsplk; ngrf;TlhJ vd;W brhd;djhf brhd;dhh;/ ngrpdhy;
vd; kfSf;F NL itj;JtpLntd; vd;W khkpahh; brhd;djhf vd; kfs; brhd;dJ/@

The above is a direct act of cruelty. It is an admitted fact that the
parents of the deceased did not give any dowry. Even if it is to be taken
that there was no direct demand for dowry, still, abusing that the dowry was
not given itself would amount to cruelty related to demand of dowry. The
criticism that the parents of the girl did not sufficiently provide for her
or had not satisfied the demands of either the husband or any close
relative, as provided under
Section 304B of IPC would amount to cruelty.
Since the Section provides that such cruelty must be related to demand for
dowry, the word ‘demand’ for dowry has to be expanded and interpreted to not
only mean the actual demand to bring dowry, but also cruelty on the ground
that the dowry was not actually given or provided and abuselevied on that
score.

29. Cruelty is also related to criticism that the dowry was not
given. A narrow interpretation of the Section would not do justice in a case
of this nature, where a young girl of 18 years was married to a physically
handicapped person. Though marriage expenses were born by the parents of the
boy, there was always a criticism by them that it was a gratuitous act done
by them and though it was pointed out that they did not demand dowry, the
girl was however subjected to criticism for not having brought dowry. Either
way she suffered mentally and the root cause of that is non provision of
dowry as a concept.

30. During the chief examination, PW.2, has further stated as
follows:-

@vd; kfs; mHFf;F Mirgl;L vd; kfis fl;of;bfhz;lhh;fs;/ tujl;rid ntz;lhk; vd;W
brhd;dhh;fs;/ M!;gj;hpf;F te;jnghJ vd;ida[k;. vd; kfisa[k;. vd; kidtpiaa[k;
ghh;f;fTlhJ vd;W brhd;dhh;fs;/

jpUkzj;jpw;f gpwF v’;fSf;Fk; mth;fSf;Fk; gpur;rpid ,y;iy/ tujl;rid nfl;gjhf
brhd;dhh;/ FHe;ij gpwe;j gpwF vd; kfis bfhLik gLj;jpdhh;fs;/ ghy;
bfhLf;ftpy;iy. FHe;ijia ftdpf;ftpy;iy vd;W brhd;dhh;fs; vd; kfSf;F khkpahh;
NLitj;jjhf vd; kfs; brhd;dJ/

31. The above reflects the cruelty inflicted on Mahalakshmi. A
child was born. She was criticised for not taking care of the child. She was
also inflicted with a burn injury by the accused.

32. The question, which should be answered by this Court, is
whether this cruelty is related to demand of dowry in any form. PW.2 is in a
economically disadvantageous position. He could not offer dowry. But, at
the same time, Mahalakshmi lived a life wherein it was always pointed out
that she did not bring dowry. The accused cannot take shelter from the fact
that she did not directly demand dowry, but that she only pointed out that
dowry was not brought. I hold that cruelty inflicted on the ground of
criticism that dowry was not brought, would also come within the ambit of
Section 304B of IPC. Even though there was no direct demand to bring dowry,
criticising that the dowry was not brought and death occurring owing to such
cruelty would attract the ingredients of
Section 304B of IPC.

33. It must also be pointed out that as between the evidence of
PW.1 and PW.2, who are the mother and father, the statements of PW.1 can be
relied upon by the Court, because it is only natural that a daughter would
confide more with her mother than her father. PW.2 would not able to express
himself with respect to the reason for the cruelty inflicted. He had stated
about the nature of cruelty inflicted. He had constantly stated during the
cross examination that his was daughter was subjected to criticism, but the
cross examination has been recorded in a summary form.

34. Consequently, even though a reading of the cross examination
does not give any direct link with cruelty, for any demand for dowry, it must
be kept in mind that answers with respect to dowry would be given only when
questions were put with respect to demand for dowry. For this reason also, I
hold that there was cruelty inflicted on Mahalakshmi and such cruelty was
related to the concept of dowry demand, where this concept has to be
expanded to include any just demand for dowry, but also cruelty on the ground
of non production of dowry both at the time of marriage and subsequently and
also to incapacity to bring dowry to the family.

35. The very fact that the accused was able to convince PW.1 and
PW.2 to give their daughter in marriage to her son, who is physically
challenged, itself shows that PW.1 and PW.2 were not in a dominant position,
but were put in a position where they bowed down to offer their daughter in
marriage to a person who was actually physically handicapped as stated above
and as is evident from the evidence, “vd; kfs; mHFf;F Mirgl;L vd; kfis
fl;of;bfhz;lhh;fs;/@

36. The accused was in a dominant position and the marriage was
actually forced on Mahalakshmi. PW.1 and PW.2 had no other option because
they were also from a economically oppressed background.

37. The Trial Court had also examined the nature of injuries
suffered by the deceased and the evidence of the Doctor which had not been
contested by the learned counsel for the accused. Once this Court has
expanded the theory of cruelty and its applicability to criticism for non
production of dowry also, the other aspects relating to the cause for death
and the evidence of the Doctor and the Investigating Officer need not be re-
examined once again, since they are facts which are not contested by the
accused. Consequently, even though this Court has to interfere with the
sentence imposed under
Section 498A of IPC and with the fine imposed under
Section 304B of IPC, still conviction of 10 years under Section 304B of IPC
has to be upheld. Accordingly, conviction under
Section 304B of IPC is to be
sustained, but the sentence relating to fine amount under
Section 304B of IPC
imposed by the court below is to be set aside to the extent mentioned above.

38. In the result, this criminal appeal is partly allowed. The
sentence, dated 13.03.2007 made in SC.No.128 of 2006 under
Section 498A of
IPC is set aside. Further, while setting aside the sentence in respect of the
fine amount alone under
Section 304B, i.e fine amount of Rs.10,000/-, in
default to undergo one year Rigorous Imprisonment, the impugned judgement of
conviction and sentence under
Section 304B to undergo 10 years Rigorous
Imprisonment is confirmed. The Trial Court is directed to incarcerate the
accused for the remaining period of sentence forthwith.

To:

1. The Principal Sessions Judge, Thanjavur.

.

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