Vs. State Through S.H.O., Pondicherry  Insc 187 (5 April 2006)
Sinha & P.P. Naolekar S.B. Sinha, J :
(the deceased) was the wife of the appellant herein. She admittedly committed
suicide on 14.03.1994. They were married on 04.09.1992. The deceased gave birth
to a female child at Pondicherry in July 1993. The appellant for one
reason or the other did not bring her back from her maternal home for a period
of about eight months. She was brought back in February 1994. According to the
appellant, the deceased proposed to go back to her mother's house to see her
mother which he refused stating that she had come back only a month back. It is
not in dispute that at the time when the deceased committed suicide neither the
appellant nor his mother was present in the house.
or the other the people of the neighbourhood came to know about it. They broke
open the door and found the dead body. The deceased committed suicide at about 1 p.m.. The mother of the appellant came back at 3.30 p.m. It also stands admitted that the family members of
the deceased, namely, her mother (PW-7), sister (PW-8), maternal uncle (PW-6),
another relative (PW-9), and brother (who was not examined), came to the house
and allowed the cremation of the dead body in his village. They took back all
the articles which were given to her at the time of or after the marriage. No
first information report was lodged by them. The police was informed by the
appellant himself whereupon a case under Section 176 of the Code of Criminal
Procedure was initiated. The matter was also considered by panchayat. One Rajarajan
Veerasamy, Deputy Tahsildar-cum-Executive Magistrate, (PW-14), conducted an
enquiry. He examined the prosecution witnesses and others. He submitted a report
before the Station House Officer, Mettupalayam Police Station on or about
15.03.1994 wherein he is said to have raised some suspicion as regards the
death of the said Davamani. In his report, it was stated :
their statements also stress the harassment for want of dowry. The Panchayatars
statement does not clear the doubts as they are not aware of any facts and they
could not confirm that there are no problems between the deceased and her
husband. There is an injury on the right hand side of the neck of the deceased
and an internal injuries could be traced out only in the post mortem report.
opinion, I suspect that there could be harassment for demand of dowry by the
in-laws and husband of the deceased, based on the statements recorded in this
regard. Hence, in my opinion, this could be a case of dowry death" On the
basis of the suspicion expressed by him, a case under Section 304B of the
Indian Penal Code came to be registered against the appellant alone. His mother
was not made an accused. She was made a prosecution witness. She was examined
on behalf of the prosecution as PW-1. It is furthermore not in dispute that an
investigation into the offence was required to be carried out by a
Superintendent of Police. Upon the said report of PW- 14, Smt. Anita Roy,
Superintendent of Police (PW-10), took up the investigation. She was not
conversant with the local language. She went to the village Kilinchikuppam and
examined the mother, sister and brother of the deceased. The Circle Inspector Munisam
and Head Constable Ramaswami (PW-15) accompanied her. Admittedly, the evidences
of the witnesses were recorded by the said PW-15. They were said to have been
translated in English. Although, according to PW-10, she verified the said
statements, but did not state as to how she did it. PW-10 and PW-11 being not
available at that time in the village, were asked to come to Pondicherry.
Nos. 7, 10 and 11 visited Pondicherry on
8.05.1994. Their statements were said to have been recorded by PW-15, in her
presence. The said statements were also allegedly translated. She again
allegedly verified the said statements without disclosing the mode and manner
thereof. Upon completion of the investigation a chargesheet was filed.
learned Sessions Judge framed the following charge against the appellant:
you from 4.9.1992 to 14.3.1994 had subjected your wife Davamani to cruelty and
harassment in connection with dowry demand and had driven her to commit suicide
by hanging at her residence at Shanmugapuram on 14.3.1994 between 8-15 and
13-00 hours which occurred within seven years of her marriage and that you
thereby committed an offence punishable under Section 304B of the Indian Penal
Code and within my cognizance." In support of its case, the prosecution
examined Kasiammal (PW-1), Amudha (PW-2), Arumugham (PW-3), Seethapathy (PW-6),
Amaravathi (PW-7), Chandrakantha (PW-8) and Jaya (PW-9) .
this case three witnesses were also examined on behalf of the prosecution who
instead of supporting its case directly or indirectly supported the case of the
appellant herein. PW-1 is the mother of the appellant. PW-2 is a neighbour and
PW-3 was a teacher of the village, who himself had even, according to
prosecution witnesses, been demanding dowry. We would refer to their
depositions before the court a little later.
would, however, at this stage notice the deposition of those witnesses who
supported the case of the prosecution completely.
is the mother of the deceased. She was, presumably her best friend. It is
expected that the deceased would share her agonies with her mother only.
periods are involved in this case. The marriage took place on 04.09.1992. The
deceased stayed with her husband for about seven months, i.e., upto February
1994. According to PW-7 they were living happily during that period. The
deceased went back to her mother's place for delivery of a child. She delivered
a child in a hospital. According to the deceased's mother the appellant came
and saw the child. She was later on discharged from the hospital after
informing the appellant. The deceased stayed with her mother from March 1993 to
incident took place on 14.03.1994. So far as demand of dowry is concerned,
allegedly a demand was made of 8 sovereign of gold. One witness PW-9, Jaya,
however, states that the accused party demanded 9 sovereigns. It was stated by
other prosecution witnesses that 6.5 sovereign of gold was given at the time of
marriage, whereas according to PW-9 only five sovereign of gold was given.
Another demand by way of dowry was said to be in the form of a silk saree as it
was missing at the time of marriage and the groom's family wanted them to
purchase a new saree. We may notice that no witness stated that the demand of
dowry was made by the appellant himself. Evidence brought on record by the
prosecution as regard the alleged demand of dowry is :
had been demanding dowry;
a demand was
made also by the brother of the accused; and
evidence of PWs that the deceased herself told that she was being harassed for
demand of dowry.
of some significance to note that the mother of the deceased categorically
accused has not demanded for the jewels and saree. The teacher only demanded.
The teacher is responsible for my daughter's death." It is furthermore of
some significance to note that a categorical statement was made by PW-7 that
when PW-3 had visited her house and demanded a silk saree and jewels, she had
told him that she would ask her son-in-law regarding the same which demonstrate
that she had confidence in him. It is not her case that at any point of time
she had asked the appellant as regard any demand of dowry made by him.
is the maternal uncle of the deceased. His evidence cannot at all be relied
upon as what he stated in his deposition had not been stated by him before the
investigating officer or before the Deputy Tehsildar. He, in his deposition,
went beyond the prosecution case. According to him, the accused and his family
demanded TVS Moped, Cot, Bureau, Grinder and vessels made of stainless steel.
No such case was made out by the family members of the deceased. According to
him, when he visited the deceased six months after the marriage, she had
allegedly informed him about being beaten by the appellant and demanding of
remaining 1.5 sovereign of gold jewels. He spoke about giving of = sovereign of
gold during Valaikappu function.
said function is indisputably held when the woman is about seven months'
pregnant. It may, therefore, be that = sovereign of gold might have been given
as a customary gift. He is said to have been informed that it was PW-3 alone
who came to his sister's house and demanded the balance of jewels and a silk saree
which had been missing at the time of marriage.
this witness, thus, did not say that the said teacher was making any demand on
behalf of the appellant. As noticed hereinbefore, according to PW-7, she
believed that the cause of death of the deceased was the demand of dowry made
is the sister of the deceased. She visited her sister three months after
marriage and was allegedly told by her that her in laws had been demanding the
balance of jewels which had been agreed to by them. At that time admittedly no
allegation was made by her as regard harassment meted out to her by anybody far
less the appellant herein.
is the aunt of the deceased. She was examined by the Superintendent of Police
three months after the death of the deceased Davamani. She of course told about
the alleged torture meted out to the deceased by the appellant for not giving
the balance jewels but her evidence, in our considered view, is not reliable.
Evidence led by prosecution, thus, failed to establish involvement of the
Appellant as regards the alleged demand of dowry.
now scrutinize the evidence led by the prosecution as regards the alleged
harassment of the deceased.
mother of the deceased did not depose that she had ever been intimated by the
deceased about harassment meted out toher. She is said to have received the
information from her son who was not examined. Her evidence, thus, being
hearsay in nature is inadmissible in evidence. She allegedly came to know about
the alleged harassment through her son and daughter only. PW-8, however, does
not say that she had ever stated the same to her mother. PW-7's statement as
regard harassment, thus, is not admissible at all.
have noticed hereinbefore that when PW-8 visited the deceased for the first
time, i.e., three months after the marriage, she did not speak about any
harassment. Only when she allegedly came to see her sister after the delivery
of the child and asked as to how she was, she allegedly cried stating that she
was in apprehension of danger to life. She is said to have made a similar
statement before the police also but in relation thereto no date or month was
mentioned. She deposed that she allegedly had told the Tahsildar that the
deceased was beaten up by the appellant; but no such statement appeared to have
been made. She in her evidence categorically stated that :
I invited my sister to come to my house along with her husband, she told that
her husband would come only after his mother in law come and go to his house."
The explanation offered by the accused is exactly the same. We for the reasons
mentioned hereinbefore, do not intend to place any reliance on the statement of
PW-9 even on this score.
at this juncture may notice the peculiar features of the case.
the mother of the accused and PW-3, the teacher, who were responsible for the
demand of dowry had not been made accused in the case. They have been examined
as prosecution witnesses. PW-1 has not even been declared hostile. She was
examined by the prosecution, as presumably before the police because she had
deposed against the accused and in support of the prosecution. As regards the
suicide committed by the deceased, she offered an explanation not as a defence
witness but as a prosecution witness stating that after a month of her coming
back after delivery of child, the deceased had requested her son to permit her
to go to her parents' house, but he had told her that she could do so only
after her parents come to their house but despite the same she had been
insisting to visit her parents. According to PW-1 she was a short tempered
girl. She categorically stated that she committed suicide for not being allowed
to go to her parents house by the appellant and there was no other reason therefor.
is another witness, who was examined by the prosecution. She was the last
person to see the deceased. According to her at about 12.30 p.m., she visited her house. She was in normal mood. She also
bears testimony that the couple had been leading a happy life. She had also not
been declared hostile by the prosecution.
is the teacher, who according to PW-7 was solely responsible for causing her
daughter's death. He was declared hostile. He had been examined by the police
as also by the Superintendent of Police. He categorically stated that there had
never been any problem as regard dowry nor any complaint was made by the
appellant to the deceased's family about missing of the silk saree. Although he
was declared hostile, only some suggestions were given to him. In fact he had
not been cross-examined in the true sense of the term. His attention had not
been drawn to his earlier statements, if any, before the police or before the
Deputy Tahsildar. Why he was examined as a prosecution witness and why he was
declared hostile is not known.
aforementioned factual backdrop, we have to consider as to whether a case has
been made out for conviction of the appellant under Section 304-B of the Indian
Penal Code, which reads as under :
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, 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).
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." The essential ingredients of the said offence, therefore, are
death of a woman
must have been caused by any burns or bodily injury or otherwise than under
such death must
have been occurred within seven years of marriage
soon before her
death she was subjected to cruelty or harassment by her husband or relative of
such cruelty or
harassment must be in connection with the demand of dowry; and
such cruelty is
shown to have been meted out to the woman soon before her death.
significant words are "soon before her death". Here, it was, thus,
necessary for the prosecution to establish that the deceased must have been
subjected to cruelty or harassment by her husband or relative of her husband
soon before her death.
now well-settled in view of a catena of decisions of this Court that what would
constitute 'soon before her death' depends upon the facts and circumstances of
would examine some of them.
State of A.P. v. Raj Gopal Asawa and Another
[(2004) 4 SCC 470], it is stated :
Section 113-B of the Evidence Act is also relevant for the case at hand. Both
Section 304-B IPC and Section 113-B of the Evidence Act were inserted as noted
earlier by Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat
the increasing menace of dowry deaths. Section 113-B reads as follows:
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
has 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 purposes of this section
'dowry death' shall have the same meaning as in Section 304-B of the Indian
Penal Code (45 of 1860)." The necessity for insertion of the two
provisions has been amply analysed by the Law Commission of India in its 21st
Report dated 10-8-1988 on "Dowry Deaths and Law
Reform". Keeping in view the impediment in the pre- existing law in
securing evidence to prove dowry-related deaths, the legislature thought it
wise to insert a provision relating to presumption of dowry death on proof of
certain essentials. It is in this background that presumptive Section 113-B in
the Evidence Act has been inserted. As per the definition of "dowry
death" in Section 304-B IPC and the wording in the presumptive Section
113-B of the Evidence Act, one of the essential ingredients, amongst others, in
both the provisions is that the woman concerned must have been "soon
before her death" subjected to cruelty or harassment "for, or in
connection with, the demand for dowry". Presumption under Section 113-B is
a presumption of law. On proof of the essentials mentioned therein, it becomes
obligatory on the court to raise a presumption that the accused caused the
dowry death. The presumption shall be raised only on proof of the following
before the court must be whether the accused has committed the dowry death of a
means that the presumption can be raised only if the accused is being tried for
the offence under Section 304-B IPC.)
The woman was
subjected to cruelty or harassment by her husband or his relatives.
Such cruelty or
harassment was for, or in connection with, any demand for dowry.
Such cruelty or
harassment was soon before her death." [See also Harjit Singh v. State of Punjab [(2006) 1 SCC 463] In Kamesh Panjiyar
alias Kamlesh Panjiyar v. State of Bihar [(2005) 2 SCC 388], this Court opined :
Consequences of cruelty which are likely to drive a woman to commit suicide or
to cause grave injury or danger to life, limb or health, whether mental or
physical of the woman is required to be established in order to bring home the
application of Section 498-A IPC.
has been defined in the Explanation for the purpose of Section 498-A.
Substantive Section 498-A IPC and presumptive Section 113-A of the Evidence Act
have been inserted in the respective statutes by the Criminal Law (Second
Amendment) Act, 1983. It is to be noted that Sections 304-B and 498-A IPC
cannot be held to be mutually inclusive. These provisions deal with two
distinct offences. It is true that cruelty is a common essential to both the
sections and that has to be proved.
Explanation to Section 498-A gives the meaning of "cruelty". In
Section 304-B there is no such explanation about the meaning of
"cruelty". But having regard to the common background to these
offences it has to be taken that the meaning of "cruelty" or "harassment"
is the same as prescribed in the Explanation to Section 498-A under which
"cruelty" by itself amounts to an offence. Under Section 304-B it is
"dowry death" that is punishable and such death should have occurred
within seven years of marriage. No such period is mentioned in Section 498-A.
case is established, there can be a conviction under both the sections. (See Akula
Ravinder v. State of A.P.1) Period of operation of Section
113-A of the Evidence Act is seven years, presumption arises when a woman
commits suicide within a period of seven years from the date of marriage."
In the decision of this Court in Sudhakar and Another v. State of Maharashtra
[(2000) 6 SCC 671] whereupon Mr. R. Sundaravardan relied, this Court opined
that the proximity test is one of the tests which must be held to be applicable
for the purpose of consideration as to whether such a statement of a deceased
should be relied upon or not. Therein, Sethi, J., speaking for a 3-Judge Bench
of this Court held that only because allegedly the deceased made a statement
giving out circumstances in which she was allegedly raped by two accused, which
was recorded by police 11 days after the occurrence whereas she committed
suicide about 5-1/2 months thereafter, it would not lead to the conclusion that
rape upon her was the reason for commission of her committing suicide, stating:
There is no legal evidence on record that the prosecutrix at or about the time
of making the statement had disclosed her mind for committing suicide allegedly
on account of the humiliation to which she was subjected to on account of the
rape committed on her person. The prosecution evidence does not even disclose
the cause of death of the deceased. The circumstances stated in Exhibit P-59 do
not suggest that a person making such a statement would, under the normal
circumstances, commit suicide after more than five-and-a-half months. The High
Court was, therefore, not justified in relying upon Exhibit P- 59 as a dying
declaration holding that the said statement was in series of circumstances of
the transaction which resulted in the death of the deceased on 21-12-1994. The conviction of the persons accused of offences
cannot be based upon conjectures and suspicions. Statement Exhibit P-59 if not
treated as a dying declaration, there is no cogent and reliable evidence which
can connect the accused with the commission of the crime" The said
decision is, therefore, of no assistance to the prosecution.
conduct of the family members of the deceased, in the aforementioned backdrop,
assumes importance. They did not make any complaint themselves. It was the
appellant who lodged the first information report. On the basis of the said
first information report, an investigation must have been commenced. It was
stated to be a case of unnatural death.
an enquiry was made by the Tahsildar. Before him only for the first time, some
statements had been made by some of the prosecution witnesses. We have noticed
hereinbefore that the members of the Panchayat did not state anything about the
cause of the death. The Tahsildar in his report mentioned about an injury
"on the right hand side of the neck" of the deceased. No such injury
was found in the post mortem report. He in his evidence as PW-14 categorically stated
my report, I have examined some witnesses who have not stated that Dawamani was
ill-treated by her mother-in-law..." His evidence in this behalf is not
very clear, when he stated :
have not received any information when I examined 5 persons who are residing in
the local area that the death might not have been happened due to
dowry..." He further stated :
my enquiry, Chandrakantha has stated that Dawamani was beaten up by her husband
demanding = sovereign of gold Jhimki. Chandrakantha went to her sister house 10
days before the death and she was told by her sister that she was well. In my
report, I have not stated that Chandrakantha was told by her sister Dawamani
that she was well while weeping. When I examined Seethapathy he has not stated
that Dawamani was ill treated and beaten up by her husband for dowry.
examination of Amarvathy, she has not stated that Dawamani returned to her
mother-in-law's house for one month and she was ill treated for dowry" It,
therefore, appears that no cogent evidence had been adduced by the prosecution
to establish that the appellant had demanded any dowry. It would bear
repetition to state that according to the mother of the deceased, PW-7 only
PW-3 demanded dowry and only he was responsible for the death of her daughter.
If that be so, he should have also been prosecuted.
trial court has not given any cogent reason for disbelieving the evidence of
PW-1; upon whom even the prosecution placed reliance. The statement of PW-1
that the deceased was short tempered girl has not been discarded. The statement
of PW-2 that even = hour before committing suicide the deceased behaved
normally had also not been taken into consideration. The prosecution did not
cross-examine PW-3, except making some suggestions; although he was declared hostile.
Even the trial court did not discard the explanation given by the accused as
regard suicide of the deceased. It proceeded on the basis that there was no
evidence either directly or indirectly as regard harassment or cruelty
committed by the appellant against his wife and there are only circumstantial
evidence therefor. The necessary ingredients of circumstantial evidence for
holding the appellant guilty of commission of the offence had not been
deliberated upon either by the trial court or by the High Court. Even an
attempt had been made to show that the accused had on an earlier occasion tried
to murder the deceased but the same was found to be false by the trial court
holding that there was no evidence that the "accused had already attempted
to burn away his wife". The trial court opined :
fact that the deceased was living with her mother for about eight months after
delivery would speak volumes of the misunderstanding between the accused and
his wife." If it was a case of misunderstanding between the accused and
the deceased, the same would not automatically lead to the conclusion that the
appellant had committed an offence under Section 304-B of the Indian Penal
Code. The law does not raise any such presumption The trial court proceeded on
the basis that as if PW-3 was acting as a messenger, although there was no
evidence in this behalf. It was held by the trial court that 'the insistence of
the PW-3 revealed that what was demanded by PW-3 was a dowry demand'. We fail
to understand as to how a so-called misunderstanding or a hypothesis could be
made the basis for conviction.
was no reason to disbelieve that the defence version that the cause of death
was that she had insisted to go to her mother's house but she was not allowed,
regard to the peculiar features of the case, we are of the opinion that demand
of dowry or any harassment being the cause for the death of the deceased,
cannot be said to have been established beyond all reasonable doubt.
the reasons aforementioned, the impugned judgment cannot be sustained, which is
set aside accordingly. The appeal is allowed. The appellant shall be set at
liberty forthwith unless wanted in connection with any other case.