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Ramalingam vs The State Rep. By on 9 March, 2020

Crl.A(MD)No.86 of 2015

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 09.03.2020

CORAM:

THE HONOURABLE Mr.JUSTICE M.DHANDAPANI

Crl.A(MD)No.86 of 2015
and
Crl.A(MD)No.35 of 2016

Crl.A(MD)No.86 of 2015

1.Ramalingam
2.Palanivel
3.Anjalai
4.Dharmaraj
5.Rosappu … Appellants / Accused Nos. 1 to 5

Vs.

The State rep. by
The Inspector of Police,
Sampattividuthi Police Station,
Pudukkottai District … Respondent / Complainant

PRAYER: Appeal filed under Section 374(2) of Criminal Procedure

Code, against the Judgment and Conviction, dated 24.03.2015 made in

S.C.No.89 of 2012, passed by the learned Mahila Judge, Pudukkottai.

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Crl.A(MD)No.86 of 2015

Crl.A(MD)No.35 of 2015

Govindasamy … Appellant / Victim

Vs.

1.Ramalingam
2.Palanivel
3.Anjalai
4.Dharmaraj
5.Rosappu … Respondents /Accused Nos. 1 to 5

The State rep. by
The Inspector of Police,
Sampattividuthi Police Station,
Pudukkottai District … Respondent / Complainant

PRAYER: Appeal filed under Section 372 of Criminal Procedure Code,

to set aside the Judgment passed by the Mahila Judge, Pudukottai in

S.C.No.89 of 2012, dated 24.03.2015, and award the victim

compensation and enhance the punishment to the respondents /

accused.

For Appellants : Mr.K.Baalasundharam
in Crl.A.86/2015
Respondents/A1 to A5
in Crl.A.35/2016

For Appellant in : Mr.P.Aju Tagore
Crl.A..35 of 2016

For Respondent : Ms.S.Bharathi
Complainant in Govt.Advocate (crl.side)
both the appeals

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COMMON JUDGMENT

The appellants / Accused Nos.1 to 5 in Criminal Appeal No.86 of

2015 were charged and tried before the learned Sessions Judge,

Mahila Court, in S.C.No.89 of 2012, and after trial, the Court below

found the appellants/A-1 to A-5 guilty and by judgment dated

24.03.2015, convicted and sentenced the appellants as follows:-

S.NO. OFFENCE PUNISHMENT
1 Under Section 498(A) 3 years Rigorous Imprisonment and
IPC., fine of Rs.1,000/- each, in default, to
undergo Rigorous Imprisonment for
6 months;
2 Under Section 304(B) 7 Years Rigorous Imprisonment
ipc.,
3 Under Section 306 IPC., 7 years Rigorous Imprisonment and
fine of Rs.1000/- each, in default, to
under go 1 year Rigorous
Imprisonment.

2. The Criminal Appeal No.35 of 2016 has been filed by the

appellant / Victim, to set aside the Judgment passed by the Mahila

Judge, Pudukottai in S.C.No.89 of 2012, dated 24.03.2015, and award

the victim compensation and enhance the punishment to the

respondents / accused.

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3. For the sake of convenience the appellants / accused in

Crl.A.No.86 of 2015 will be referred to as A-1 to A-5, as arrayed before

the trial court.

4. Since the issue involved in both the appeals are on the same

set of facts and occurrence, this Court proceeds to dispose of both the

appeals by this common Judgment.

5. The case of the prosecution as unfolded from the evidence

available on record, is as under :-

(i) On 25.03.2010, the marriage was solemnized between A1 and

the deceased Seethalakshmi at Varapur Siva Temple, as per Hindu Rites

and Customs. At the time of marriage, the defacto complainant gave 15

sovereigns of gold jewels, instead of 20 sovereigns demanded by A1,

household articles and a vehicle viz., “Hero Honda” to the deceased, as

‘Sridhana’. A1 was working as a driver in Tamil Nadu State Transport

Corporation at Pudukkottai Branch. All the accused and the deceased

were living together as joint family. The accused gave more household

works and field works to the deceased and thereby, treated the

deceased cruelly.

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Crl.A(MD)No.86 of 2015

(ii) Further, A1 had illicit intimacy with A5, which was questioned

by the deceased and A1 responded by saying that deceased was sick

person and A1 was made to tie the wedding-knot. All the accused

compared the deceased with one Sathiya, insulted, scolded her to die,

mentally and physically caused cruelty to the deceased, and on

26.06.2010, the deceased committed suicide, by drowning in the ‘Well’.

Thereby, A1 to A5 committed the offence under Section 498(A) IPC. All

the accused incited the deceased to commit suicide and thereby,

committed the offence under Section 306 IPC.

6. The death of the deceased was informed by A4 / brother of A1,

to P.W.2 / brother of the deceased, through phone. Immediately, P.W.1

along with others went to the residence of the deceased. Thereafter,

P.W.1 gave the complaint, Ex.P1 on 26.06.2010, at about 3.45 p.m.

before P.W.27 / Sub-Inspector of Police, Sampattividuthi Police Station,

P.W.27, on receipt of the complaint, immediately registered Ex.17 / FIR,

took up investigation and he inspected the spot and prepared

observation mahazar. On 26.06.2010, he arrested the accused and

their confessions were recorded. Thereafter, the appellants were

brought before the Judicial Magistrate, Aranthangi and they were

remanded to judicial custody. After investigation, final report has filed

against the accused.

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7. The accused were furnished with the relied upon documents

u/s 207 Cr.P.C. and the case was committed for trial by framing charges

against the appellants for the offence under Sections 498(A), 306 and

304(B) IPC., and Section 4 of Dowry Prohibition Act. When questioned,

the accused pleaded not guilty.

8. In order to prove the case, on the side of the prosecution 33

witnesses were examined as P.Ws.1 to P.Ws.33 and 25 documents were

marked as Exs.P1 to Exs.P25.

9. The Court below, by pointing out the incriminating materials

recorded during the course of trial, questioned the appellants under

Section 313(1)(b) of Cr.P.C., and the appellants denied the same as

false. On the side of the appellants / accused, neither oral nor any

documentary evidence were adduced. The trial court, on the basis of

the evidence, both oral and documentary, convicted and sentenced the

accused as above, aggrieved by which the present appeal has been

preferred.

10. The learned counsel appearing for the accused submitted that

the appellants did not commit any offence, as alleged by the

prosecution. In fact, the marriage of the 1st appellant and the deceased

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is not in dispute, their marriage was performed on 25.03.2010 and the

deceased died on 26.06.2010, by drowning in the well. Initially, P.W.1

made Ex.P1 / complaint before the law enforcing agency. The said

complaint did not disclose the commission of offence by the accused

persons. P.W.1, simply suspected the death of the deceased and made a

complaint.

11. It is further contended by the learned counsel appearing for

the accused that investigation was conducted by the Revenue Divisional

Officer, under Section 174 Cr.P.C., Further, the RDO enquiry did not

reveal anything with regard to dowry demand. Further, the evidence

of P.W.1, the father of the deceased finds no corroboration with the

evidence of P.W.2 and P.W.3, the brothers and P.W.4 the mother of the

deceased. In fact, P.W.1 in his complaint did not disclose the

commission of offence by the accused persons and the evidence of P.W.1

is an improved version, which is inadmissible. Even in his evidence,

P.W.1 did not disclose that there was cruelty soon before the death of

the deceased. However, the law enforcing agency initially registered a

case under Section 174 Cr.P.C., but altered the same into one under

Section 302 IPC and, thereafter, final report has been filed under

Sections 498A and 306 IPC. At the time of framing charge, the Court

itself framed an additional charge under Section 304(B) IPC.

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12. It is his further contention that all the ingredients for

attracting the offences for which the appellants have been charged is

totally different, which have not been fulfilled to establish the case

against the appellants. It is the further submission of the learned

counsel for the appellants that except the relatives of the deceased, no

independent witnesses have been examined with regard to the alleged

cruelty meted out to the deceased by the appellants soon before her

death and no dowry harassment has also been established through

acceptable evidence. In the present case, except the demand of dowry,

no other allegation has been made by the prosecution. Even P.W.s 1 to

4, who have been examined to establish the cruelty meted out by the

accused persons against the deceased have not deposed anything with

regard to the cruelty meted out to the deceased. In the absence of any

cruelty or harassment, convicting the accused for the above said

offence is not sustainable, accordingly, the learned counsel prayed for

allowing the appeal.

13. The learned counsel, invited the attention of this Court to the

Judgment of Hon’ble Apex Court in S.S.Chheena Vs. Vijay Kumar

Mahajan Anr. (2010 (12) SCC 190), wherein, it has been held as

follows:-

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“26. In State of West Bengal v. Orilal Jaiswal
(1994) 1 SCC 73, this Court has cautioned that the
court should be extremely careful in assessing the
facts and circumstances of each case and the
evidence adduced in the trial for the purpose of
finding whether the cruelty meted out to the victim
had in fact induced her to end the life by
committing suicide. If it appears to the court that a
victim committing suicide was hypersensitive to
ordinary petulance, discord and differences in
domestic life quite common to the society to which
the victim belonged and such petulance, discord
and differences were not expected to induce a
similarly circumstanced individual in a given
society to commit suicide, the conscience of the
court should not be satisfied for basing a finding
that the accused charged of abetting the offence of
suicide should be found guilty.

27. This Court in Chitresh Kumar Chopra v. State
(Govt. of NCT of Delhi) (2009) 16 SCC 605 had an
occasion to deal with this aspect of abetment. The
Court dealt with the dictionary meaning of the
words “instigation” and “goading”. The Court
opined that there should be intention to provoke,
incite or encourage the doing of an act by the
latter. Each person’s suicidability pattern is
different from the other. Each person has his own
idea of self-esteem and self-respect. Therefore, it is
impossible to lay down any straitjacket formula in

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dealing with such cases. Each case has to be
decided on the basis of its own facts and
circumstances.

28. Abetment involves a mental process of
instigating a person or intentionally aiding a
person in doing of a thing. Without a positive act
on the part of the accused to instigate or aid in
committing suicide, conviction cannot be
sustained. The intention of the legislature and the
ratio of the cases decided by this Court is clear
that in order to convict a person under Section 306
IPC there has to be a clear mens rea to commit the
offence. It also requires an active act or direct act
which led the deceased to commit suicide seeing
no option and that act must have been intended to
push the deceased into such a position that he
committed suicide.”

14. Reliance was also placed on the decision of the Hon’ble Apex

Court in Mahesh Kumar Vs. State of Haryana reported in (AIR

2019 SC 802), wherein it has been held as follows:-

9) The first and foremost question that
arises in this case, and in respect of the necessary
ingredients of Section 304-B IPC, is whether there
is a proximate nexus between the death of the
deceased with the cruelty or harassment inflicted
upon her in respect of the demand of dowry.
Section 304-B reads as under:

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“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 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) 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.”

14) In the present case, the prosecution relies
upon the statement of PW3 Sohan Lal – father and
PW4 Rajbir – brother of the deceased which has
been made basis of conviction by courts below.
However, we find that such statements are not
sufficient to prove 3 (2004) 11 SCC 291 4 (2015) 5
SCC 201 that the deceased was treated with
cruelty relating to demand of dowry soon before
her death in the absence of independent evidence
though available but not examined. A memorandum
Ex.PE/1 dt. 25.01.1992 was relied upon and said to
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Crl.A(MD)No.86 of 2015

be executed by the in-laws of the deceased in the
presence of members of Panchayat. But none of the
Panchayat Members have been examined to prove
the settlement arrived at. Therefore, the oral
statements cannot be relied upon in view of the
letters produced by the prosecution.

15) The prosecution also relies upon letter Ex.
PF/1 written by the deceased to her father. The
letter is to the effect that her in-laws have started
hating and suspecting the deceased’s father,
therefore, he should not give them the gold chain
but only cash. Such letter does not show that
anything was demanded by the appellant. The date
of sending such letter has not been proved by the
prosecution, therefore, it cannot be said that such
letter was written soon before her death. Similarly,
another letter produced by the prosecution is Ex.
PK/1 which is a letter of the deceased to her
brother-in-law(sisters-husband) stating that she has
no problem with her mother-in-law and sister-in-
law but her husband beats her daily. The date of
this letter has not been proved nor does such letter
lead to any inference for the demand of dowry by
the husband of the deceased. Further, an additional
letter relied upon by the prosecution is Ex. PG/1
dated 25.05.1992, wherein the deceased has
written that she is unhappy and harassed by her in-
laws in as much as her mother-in-law does not like
the food she cooks. Again, there is no inference of
any demand of dowry in such letter as well.
Therefore, the documentary evidence in the shape
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of letters does not support the story of the
prosecution.”

15. Assailing the Judgment of lesser conviction passed by the trial

Court, Crl.A(MD)No.35 of 2016 has been filed P.W.1, the father of the

deceased, seeking enhancement of punishment. Mr.P.Aju Tagore, the

learned counsel appearing for the victim / defacto complainant

submitted that the evidence of P.Ws.1 to 4 and 7 corroborated with

each other and they have implicated the accused in the commission of

the offence. It is the submission of the learned counsel that

examination of independent witnesses is not necessary and only if a

doubt arises in the testimony of the witnesses, who are related to the

deceased, then corroboration in the form of independent witnesses is

necessary. The evidence of P.W.s 1 to 4 and 7 corroborating each other

and is reliable, the courts below have accepted the said evidence and

convicted the accused.

16. It is the submission of the learned counsel that P.W.1 in his

evidence clearly deposed that immediately after the marriage, the

parents of A1 informed that out of 15 sovereigns of gold jewels, which

was given to the deceased there is a shortage of half a gram. This,

according to the learned counsel, shows not only the crooked mindset

of the accused, but also the fact that the demand made by them has not

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been fulfilled, which has been brought to the notice of P.W.1. Learned

counsel for the appellant highlighted various instances of the cruelty

meter out to the deceased by the accused, as is relevant from the

testimony of P.W.s 1 to 4. P.W.1 has also spoken about the ill-treatment

faced by the deceased, where she was made to do agricultural work, of

which she had made a complaint to her parents, viz., P.W.s 1 and 3,

when she came to her parental home. P.W.1 has also deposed that the

deceased was sad that such treatment is being shown to her by the

appellants. P.W.2, the brother of the deceased, in his evidence, he

clearly deposed that A1 and his family demanded rupees one lakh and 5

sovereigns of gold, as additional demand, and they continued to treat

the deceased cruelly, which made the deceased to take the extreme

step of committing suicide. The deceased had also informed P.W.2 about

the demand made by the parents of A1 for a sum of Rupees one lakh

and five sovereigns of gold, which is corroborated by P.W.s 3 and 4.

P.W.7, a distant relative of the family of the deceased, had corroborated

the evidence of P.Ws. 1 to 4.

17. The learned counsel further submitted that the testimony of

P.W.s 1 to 4 clearly reveal that after marriage, all the accused mentally

and physically harassed the deceased with regard to the lesser

‘Sridhana’ brought by the deceased along with her. Further, the

evidence also reveals that cruelty was caused by the accused

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demanding additional dowry of Rs.1,00,000/- and five sovereigns of

gold from the deceased. Though the deceased had informed the same

to P.W.s 1 to 4, however, they had pacified her, but unable to bear the

torture meted out to her by the appellants, she had taken the extreme

step of ending her life by drowning in the well.

18. It is the further submission of the learned counsel that though

the prosecution, through cogent, convincing and corroborative

testimony have proved all the ingredients necessary for the offence u/s

498A, 306 and 304B, however, the court below has not appreciated the

cruelty faced by the deceased, which has led to her committing suicide

even within a period of three months from marriage. It is the

submission of the learned counsel that the cruelty had been to such an

extent that the deceased was forced to commit suicide, which is nothing

but a form of inducement on the part of the appellants and, therefore,

the trial court ought to have considered the same while sentencing the

appellants, which it failed to do by giving only lesser sentence, which

requires to be enhanced by this Court.

19. In support of his contention, reliance was placed on the

Judgment of the Hon’ble Supreme Court in Raja Lal Singh Vs. State

of Jharkhand (2007 Crl. L.J 3262), in which it has been held as

follows:-

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“17. It has been held in Satvir Singh (supra) that
the essential components of Section 304-B are : (i)
Death of a woman occurring otherwise than under
normal circumstances, within 7 years of marriage.

(ii) Soon before her death she should have been
subjected to cruelty and harassment in connection
with any demand for dowry. In the present case,
Gayatri died about 7 months after her marriage in
April, 2000. Also, it has come in evidence that she
had been harassed for dowry 10 or 15 days before
her death. This has come in the evidence of her
father PW5 and brother PW3 and we see no reason
to disbelieve them. She had earlier also been
subjected to harassment on account of demand for
dowry when she had gone to her parents’ house in
August, 2000, as has come in the evidence of PW5
Dashrath Singh. Thus, in our opinion, the
ingredients of Section 304-B IPC are satisfied in
this case [see also in this connection T.

Aruntperunjothi vs. State (2006) 9 SCC 467] .

18. It may be mentioned that the words “soon
before her death” do not necessarily mean
immediately before her death. As explained in
Satvir Singh (supra), this phrase is an elastic
expression and can refer to a period either
immediately before death of the deceased or within
a few days or few weeks before death. In other
words, there should be a perceptible nexus
between the death of the deceased and the dowry
related harassment or cruelty inflicted on her.
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19. In the present case, we are of the opinion
that there is a clear nexus between the death of
Gayatri and the dowry related harassment inflicted
on her. As mentioned earlier, even if Gayatri
committed suicide, S. 304-B can still be attracted. A
person commits suicide in a fit of depression due to
extreme unhappiness. Thus, even if Gayatri
committed suicide, it was obviously because she
was extremely unhappy, and unless her husband
gave a satisfactory alternative explanation for the
suicide we have to take it that it was the persistent
demand for dowry which led to her suicide. It is
evident from the evidence that Gayatri’s father was
a poor man and he did not have the money to give
the dowry immediately and he wanted time up to
January, 2001 so that he could collect some funds
from somewhere, but the appellant, Raja Lal Singh
was heartless and he wanted immediate
compliance of his demand. Since that was not
fulfilled, he either killed Gayatri or harassed her so
much that she was driven to suicide on account of
the said dowry demand. The writing on Gayatri’s
palm is, in our opinion, not very relevant. In view of
the above, we dismiss the appeal of Raja Lal
Singh.”

20. Attention of this Court was also drawn to the Judgment of the

Hon’ble Supreme Court in Sharad Vs. State of Maharashtra

reported in (2012 Crl. L.J 2170) in which it has been held as follows:-
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“5. We find no merit in the submission and, in
our view, the decisions relied upon by the counsel
have no application to the facts of this case and do
not advance the case of the present Appellant in
any way. PW.1 in his deposition before the court
said that Savita last came to them to see her ailing
father just two days before committing suicide. In
that visit also she told her father that unless he
paid Rs. 5,000/-, she would not remain alive and it
would be the end of her life. The following day, she
left her father’s place and went to her matrimonial
home and in the evening of the same day she
committed suicide. PW.3, who was one of the
neighbours of Savita’s parents, said that Savita
came to see her ailing father on a Sunday and she
went back on Monday. She had then told her that
her father was ill and the accused were demanding
dowry and ill-treating her. She also told her that
she would not remain alive thereafter. On the next
day, they got the message that Savita died due to
burn injuries. We find it difficult to imagine a more
proximate link between harassment and cruelty in
connection with the demand of dowry and the
death of the victim resulting from it.”

21. Reliance was also placed on the Judgment of the Hon’ble

Supreme Court in Kulwant Singh and Others Vs. State of Punjab

reported in (2013 (2) SCC (Cri) 339) wherein it has been held as

follows:-

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“30. The second contention urged by the
appellants also does not merit any serious
consideration. It is true that in the FIR Sukhdev
Singh did not give any specific instance of the
demand for dowry made by the appellants but he
did categorically mention that there was a demand
for more dowry by the appellants. Apart from the
statement in the FIR, both the Courts have
considered the overwhelming evidence of several
prosecution witnesses to the effect that there was a
demand for dowry made by the appellants and
concurrently held that the appellants had made a
demand. We do not see any reason to interfere with
this finding of fact.

37. Finally, reference was made to Vipin Jaiswal
v. State of Andhra Pradesh, 2013 (3) SCALE 525
which also has no relevance to the present case
since in that case the ingredients of harassment or
cruelty had not been made out. Vipin Jaiswal’s wife
committed suicide and left behind a note to the
effect that nobody was responsible for her death
and that her parents and family members had
harassed her husband and it is because of this that
she was fed up with her life and the quarrels taking
place.

38. There is no doubt that insofar as the present
case is concerned, Rachhpal Kaur was harassed by
her husband and in-laws for dowry and that she
died under abnormal circumstances due to
aluminium phosphide poisoning. In our opinion,
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there is sufficient evidence to hold the appellants
guilty of offences punishable under Section 304-B
of the IPC and 498-A of the IPC. We see no reason
to disturb the conclusions concurrently arrived at
by both the Courts below.”

22. In support of his contention, reliance was also placed on the

Judgment of the Hon’ble Supreme Court in Jatinder Kumar Vs. State

of Haryana (AIR 2020 SC 161), in which it has been held as follows:-

“9. So far as present appeal is concerned, the
depositions of the prosecution witnesses about
torture and demand for dowry made by the
appellant have been believed by the Trial Court as
also the High Court. Barring the stray remark by
P.W.2, both P.W.1 and P.W.2 have narrated facts
which would constitute demand for dowry as also
inflicting cruelty and torture upon the deceased
victim. Such consistent stand of these two
witnesses cannot be said to have been
overshadowed by the above-referred stray
statement of P.W.2 which is not in tune with rest of
his deposition. As regards the appellant, it is a
finding on fact upon proper appreciation of
evidence. We do not find any major contradiction in
the statements made by P.W.1 and P.W.2 on demand
for dowry and subjecting the deceased victim to
cruelty. They stuck by their statements in cross-

examination. From their depositions, a link can be
established between such acts of the appellant and

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death of the deceased victim. Once these factors
are proved, presumption rests on the accused
under Section 113-B of the Indian Evidence Act,
1872. The appellant in his statement made in
response to his examination under Section 313 of
the Code of Criminal Procedure, 1973 attributed
suicide of the victim to depression on account of
several of her relatives’ deaths within a short spell
of time. Though the factum of several deaths in her
family has been established, there is no
corroboration of such a depressive state of mind of
the deceased. The other defence of the appellant is
that she was a modern urban lady and could not
adjust to the life style of Mullana, a small town
where her matrimonial home was situated. But
both the Trial Court and the High Court rejected
this defence. We find no reason to reappreciate
evidence on this aspect. Father of the deceased, as
also P.W.2 have proved the demand for dowry. This
version has run consistently from the statement
forming the basis of F.I.R. to deposition stage and
we do not think the Trial Court and High Court had
come to such conclusion in a perverse manner.

10. It is also argument of the appellant that since
on the basis of same set of evidences, the co-
accused persons were acquitted, the appellant only
for the reason of being husband of the deceased
could not be subjected to a different standard or
yardstick in the guilt finding process. The High
Court has given the following reasoning for letting
off the co-accused persons:-

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“23. The next question, that arises for
consideration is, as to which of the accused, could
be said to have tortured Meenakshi, continuously,
in connection with the demand of dowry, aforesaid
leading to her death. It has come in the evidence,
that Anil Kumar, and Atul Mittal, brothers of
Jatinder Kumar, were living separately, from him.
They had their separate mess, and business. It has
come in the evidence, that Bimla Wanti, mother of
Jatinder Kumar, was residing with her son Atul
Mittal, who was unmarried, at that time. Under
these circumstances, the only beneficiary, of the
cash amount, for the purchase of car, or for
extension of clinic, in the shape of dowry, could be
said to be to the Jatinder Kumar, accused husband
of deceased Meenakshi. A married brother, Atul
Mittal, unmarried brother, and Bimla Wanti,
mother of Jatinder Kumar, were not be benefitted,
either on account of the demand of car, in the
shape of dowry, or, on account of demand of cash,
for the extension of clinic. It is matter of common
knowledge that, when the bride dies, in the house
of her in-laws, under unnatural circumstances,
then no love is lost between the parents of the
deceased, and members of her in-laws family. In
such a situation, the parents of the deceased are
out and out, to rope in, as many members of the in-
laws family of the bride-groom, as they could
possibly do. The evidence of Som Prakash,
complainant, Bharat Bhushan, paternal uncle of
the deceased, and Parveen Kumar, mediator, that
the accused, other than Jatinder Kumar, used to
torture Meenakshi, in connection with the demand

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of dowry, as a result whereof, she died, could not
be said to be reliable. The basis of omni-bus
allegations, against Bimla Wanti, Atul Mittal, and
Anil Kumar, that they subjected Meenakshi to
cruelty, in connection with the demand of dowry
continuously, until her death, they could not be
convicted. It appears that, Anil Kumar, Bimla
Wanti, and Atul Mittal, were falsely implicated, in
the instant case, with a view to exaggerate the
number of the accused. Only Jatinder Kumar,
committed the offences, punishable under Sections
304-B and 498-A of the Indian Penal Code. Out of
abundant caution, Anil Kumar, Bimla Wanti, and
Atul Mittal, accused, are required to be given the
benefit of doubt, and, thus, are entitled to
acquittal. The findings of the trial court, only to
the extent aforesaid are affirmed.”

11. We are not testing the legality of acquittal
of the co-accused persons in this appeal. On the
basis of the evidence on record, we are satisfied
that the judgment and order of conviction and
sentence was rightly confirmed by the High Court
so far as the appellant is concerned. The factors
which the High Court found for convicting the
appellant, in our opinion, establishes guilt of the
appellant beyond reasonable doubt. We find no
reason to interfere with the judgment and order
under appeal. The appeal is dismissed. We are
apprised that appellant, at present, is on bail. The
appellant’s bail bond stands cancelled. Let the
appellant surrender before the Trial Court within

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four weeks from date and undergo rest of the
sentence.”

23. Ms.S.Bharathi, the learned Government Advocate (crl.side)

appearing for the State supported the Judgment of conviction of the

trial Court and submitted that the trial court, on proper appreciation of

the evidence tabled by the prosecution has rightly convicted the

accused and the findings arrived at by the trial Court are just and

proper, which need not be interfered with. Hence, prayed for dismissal

of the appeals.

24. I have heard the learned counsel appearing for the respective

appellants and the learned Government Advocate (Crl. Side) appearing

for the respondent and perused the materials available on record.

25. The issues that arise for consideration in the present appeals

are as follows:

                                    1.    Whether   necessary        ingredients     of
Sections 304B 306, 498A IPC stand
established?
2. Whether there is proximate nexus

between the death of the deceased in relation to
the cruelty or harassment inflicted upon the
deceased by demand of dowry by the accused?

3. Whether the conviction of the trial
Court and the consequent sentence could be
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Crl.A(MD)No.86 of 2015

sustained or does the sentence requires further
enhancement?

26. One of the grounds on which the conviction is assailed by the

accused relate to the satisfaction of the ingredients in Sections 498(A),

306 and 304(B) IPC. For better clarity, the said Sections 498(A), 306

and 304(B) IPC., are extracted hereunder:-

“Section 498-A - Husband or relative of husband
of a woman subjecting her cruelty - Whoever, being
the husband or relative of the husband of a woman,
subjects such woman to cruelty shall be punished with
imprisonment for a term which may extend to three
years and shall also be liable to fine.
Explanation- For the purpose of this section, 'cruelty'
means-

(a) any willful 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 coerce her or any person related to her
to meet any unlawful demand for any property or
valuable security or is on account of any person related
to her to meet such demand."

Section 306 - Abetment of suicide - If any person
commits suicide, whoever abets the commission of such
suicide, shall be punishable with imprisonment of either
description for a term which may extend to ten years
and shall also be liable to fine.

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Section 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 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 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) 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.'

27. What flows from the above provisions of law is that the death

of the victim should have been the result of cruelty or harassment by

her husband or relatives and that there should have been coercion for

the victim to commit suicide and that should be in relation to demand

for property and that the said cruelty and harassment caused and

demand made should be soon before the death of the woman so as to

drive her to commit suicide. The above are the necessary ingredients

that forms the scope and ambit of Sections 498-A, 306 and 304 (B) IPC.

Further, the above sections also mandate the punishment that are to be

awarded for the commission of the said offences.
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28. In the above backdrop of the necessities contemplated in

Sections 498-A and 304 (B) IPC, being that soon before death, the

deceased should be inflicted with cruelty and that there should be

demand for dowry or property / valuable security, this Court is tasked

with an analysis to find out whether the ingredients as contemplated

above have been satisfied.

29. P.W.1, the father of the deceased, in his evidence, has deposed

that since he had suspicion in the death of his daughter, he had lodged

the complaint, Ex.P-1, with the law enforcing agency. The earliest

document, therefore, is Ex.P-1. A perusal of Ex.P-1 reveals that there is

no whisper as to the demand for dowry or as to any cruelty or

harassment meted out to the deceased, by the accused. The complaint

merely proceeds on the footing requesting the law enforcing agency to

investigate the death of the deceased. However, P.W.1, in his evidence,

has deposed that his daughter was subjected to cruelty and harassment

at the hands of the accused, who had demanded a sum of Rupees one

lakh and five sovereigns of gold, as additional dowry. Further, the

deposition of P.W.1 also reveals about the ill-treatment meted out by the

accused to the deceased on various occasions.

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30. A conjoint reading of Ex.P-1 and the evidence of P.W.1 reveals

that nowhere in Ex.P-1, P.W.1 had spoken anything about the cruelty

and harassment caused to the deceased by the accused. Therefore, the

deposition of P.W.1 with regard to cruelty and harassment and also the

demand for additional dowry is not only at variance with his earliest

version as found in Ex.P-1, complaint, but it is definitely an

improvement from the version given in Ex.P-1. It is true that the

evidence of P.W.1 gains corroboration from the deposition of P.W.2 also

with regard to the demand of gold and money, and similarly, P.W.s 3 and

4 have also corroborated the testimony of P.W.1, however, the testimony

of P.W.1 itself being at variance with Ex.P-1, and no cruelty or

harassment having been attributed to the accused in Ex.P-1, the

deposition of P.W.1 as also the corroboration of his evidence by P.W.s 2

to 4 is prone to serious doubt. Further, P.W.s 1 to 4 have not testified as

to the steps taken by them to clarify with the accused as to the cruelty

and harassment complained of by the deceased.

31. One other crucial evidence, which flows from the evidence of

P.W.2 is the fact that the day before the death of the deceased, P.W.2

had contacted the deceased over phone and had enquired about her

welfare for which the deceased had replied that she is fine. The above

testimony of P.W.2 categorically reveals that soon before her death,

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Crl.A(MD)No.86 of 2015

there has not been any complaint made by the deceased as to the

cruelty and harassment meted out to her, by the accused.

32. Further, it is to be pointed out that the testimonies of P.W 4

and P.W.7 is at variance and does not corroborate each other. P.W.7,

according to the prosecution, is stated to be a distant relative of P.W.1.

In his evidence, P.W.7 has deposed that there was illegal intimacy

between the father-in-law and A-5, but curiously, the said testimony has

been contradicted by P.W.2 deposing that the illegal relationship was

between A-1 and A-5. Further, it is to be pointed out that nowhere in

the testimonies of P.W.s 1 to 4, they have stated anything about there

being illegal intimacy between any of the accused. There is no

averment to the said fact of illegal intimacy in the complaint, Ex.P-1.

Further, even if there had been any illegal intimacy between the father-

in-law of the deceased and A-5, that would in way be said to be cruelty

or harassment meted out to the deceased. Therefore, it is categorically

clear that the necessary ingredients as contemplated u/s 498-A and 304

(B) IPC have not been established.

33. Further, it is to be pointed out that no independent witnesses

have been examined by the prosecution with regard to the offences u/s

304 (B) and 498-A. Though, it is trite that it is not necessary for the

prosecution to examine any independent witnesses and that the

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Crl.A(MD)No.86 of 2015

testimonies of related witnesses would be suffice, however, a rider is

attached to the same, in that the testimonies of the related witnesses

should be of such a nature so as to foreclose all the possibilities of bias

and tampering. In the case on hand, the prosecution has miserably

failed to prove the charges u/s 498-A and 304 (B) IPC through the

testimonies of P.W.s 1 to 4, whose evidence, to put it more precisely,

could only be stated to be a parrot-like version, implicating the accused

in the commission of the crime. Their evidences could not in any way

form the basis of the conviction u/s 498-A and 304 (B) IPC. Once the

evidence of P.W.s 1 to 4 are discarded, the prosecution is left with no

other evidence to project the commission of offences on the accused.

34. It is true that as per Section 113-B of the Indian Evidence Act,

1872, the presumption of dowry death can be raised on 4

circumstances i.e.,

(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 304B
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.

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Crl.A(MD)No.86 of 2015

(4) Such cruelty or harassment was soon before
her death."

35. In the present case, as stated above, the testimonies of P.W.1

to P.W.4 and P.W.7 not only in any way corroborates each other, but also

falls short of fulfilling the ingredients contemplated u/s 498-A and 304

(B) IPC. There is no iota of evidence to hold that the deceased was

subjected to cruelty or harassment soon before her death. Once the

prosecution fails to establish the fact that there was any cruelty or

harassment soon before her death, the presumption required under

Section 113 of the Indian Evidence Act does not arise.

36. Though very many decisions have been relied on by the

learned counsel appearing for the appellant/P.W.1, however, the same

are not applicable for the simple reason that in those cases, harassment

and cruelty were established through testimonies of independent

evidences. However, in the case on hand, not only the testimonies of

the related witnesses, viz., P.W.s 1 to 4 and 7 falls short of conviction,

but equally, there being no independent witness examined to prove the

said fact and there being no corroboration in the testimonies of P.W.s 1

to 4 and 7, this Court is left with no other alternative to hold that the

prosecution have miserably failed to prove the offences u/s 498-A and

304 (B) IPC.

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37. It is further to be pointed out that in the enquiry conducted by

the Revenue Divisional Officer under Section 174 Cr.P.C., and who has

filed Ex.P-24, his report, the Revenue Divisional Officer has clearly

stated that there is no dowry demand. Though the said report, Ex.P-24,

is not a substantial piece of evidence, however, the said report gains

strength from Ex.P-1, complaint, which does not disclose any

harassment or cruelty and dowry demand and, therefore, the said

report can be relied upon as a corroborating piece of evidence.

38. It has been time and again held by the Hon'ble Supreme Court

that instigation is a necessary concomitant for an offence u/s 306 IPC.

The instigation should be of such a nature so as to urge, provoke, incite

and encourage the victim to do a particular act. There should be an

intention to provoke, incite or encourage a person to do a particular

act, which alone would form the necessary ingredient of abetment.

Abetment involves mental process of instigating a person or

intentionally aiding a person in doing a thing and without there being a

positive act on the part of the accused in instigating the victim to

commit suicide, the offence u/s 306 IPC does not stand attracted. The

act of the accused should be of such a nature in order to drive the

victim to commit suicide.

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Crl.A(MD)No.86 of 2015

39. The deposition of P.W.2, as stated above, clearly reveals that

the preceding day, P.W.2 had a telephonic talk with the deceased and on

enquiry, the deceased had told him that she was fine. Such being the

case, it is incumbent on the prosecution to prove that things have

happened in the interregnum between the time of telephone call of P.W.

2 and the deceased committing suicide and that thing was the act of the

accused in inflicting cruelty and harassment on the deceased, which

had driven her to take the extreme step of committing suicide.

However, to state without any ambiguity, the prosecution has not placed

any evidence before this Court to even infer that there was some

happening, which had caused the deceased to resort to the extreme

step.

40. On a careful analysis of the entire materials available on

record coupled with the legal position relating to law on Sections 498-

A, 306 and 304 (B) IPC is concerned, this Court is of the irrefutable

view that the prosecution has miserably failed to prove the culpability

of the accused in the commission of the offence and the evidence tabled

by the prosecution falls short of establishing the guilt of the accused.

The trial court has not considered the evidence in proper perspective

and has convicted the accused and sentenced them as above, which

requires interference at the hands of this Court.

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41. For the reasons aforesaid, the Criminal Appeal (MD)No.86 of

2015 is allowed setting aside the Judgment and Conviction, dated

24.03.2015 made in S.C.No.89 of 2012, passed by the learned Mahila

Judge, Pudukkottai, and the accused/appellants are acquitted of all the

charges for which they are convicted and sentenced. Bail bonds

executed by them shall stand discharged. Consequently, the Criminal

Appeal (MD)No.35 of 2016 filed for enhancement of sentence by the

victim is dismissed.

09.03.2020

Index : Yes / No
Internet : Yes / No
MPK

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Crl.A(MD)No.86 of 2015

To

1.The Mahila Judge,
Pudukkottai.

2.The Inspector of Police,
Sampattividuthi Police Station,
Pudukkottai District

3. The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.

4.The Record Clerk,
Vernacular Section,

Madurai Bench of Madras High Court, Madurai.

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M.DHANDAPANI, J.

MPK

JUDGMENT MADE IN

Crl.A(MD)No.86 of 2015
and
Crl.A(MD)No.35 of 2016

09.03.2020

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