Noorjahan Vs. State Rep. By D.S.P.  INSC 691 (23 April 2008)
Dr. ARIJIT PASAYAT & P. SATHASIVAM
REPORTABLE CRIMINAL APPEAL NO. 706 OF 2008 (Arising out of SLP (Crl.) No.
3399 of 2007) Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the judgment of a Division Bench of the
Madras High Court dismissing the appeal of the appellant and upholding the
conviction for offence punishable under Section 498-A of the Indian Penal Code,
1860 (in short the 'IPC') recorded and imposed by the learned District and
Sessions Judge, Karur in S.C. No.1/2004. Several persons who had faced trial
had preferred the appeal. Accused Nos.1 to 5 and 7 i.e. present appellant were
found guilty of offence punishable under Section 498-A IPC. Accused Nos.1 to 5
were found guilty under Section 302 IPC.
3. In appeal it was held that A-1 and A-2 were guilty of offence punishable
under Section 302 IPC and, therefore, their conviction as recorded by the trial
Court was affirmed. Conviction of A-3, A-4 and A-5 for offence punishable under Section 302 IPC
was set aside. In respect of offence punishable under Section 498-A the
conviction in respect of A-1 to A-5 and A-7 was confirmed. Appellant is A-7.
4. Background facts as projected by prosecution in a nutshell are as
The marriage between A-1 and Syed Ali Fathima (hereinafter referred to as
the deceased) took place on 22.4.2001. A-2 is the brother of A-1. A-3 and A-4
are the sisters of A-1 and A-5 is the mother and A-6 is the father of A- 1. A-7
is the aunt of A-1. PW-1 is the mother of the deceased. At the time of marriage, PW-1 paid Rs.5,000/- and three sovereigns of gold
jewels and after a period of two months, A-1 went over to Mumbai seeking for a
job. All the other accused ill treated the deceased stating that the dowry
demand was not met. Prior to the occurrence, A-1 came from Mumbai. PW-1 was
summoned. At that time, there was a demand from A-1, A-2 and A-7, the appellant
that 10 sovereigns of gold and a sum of Rs.5,000/- towards
"Seervarisal" for Ramzan must be paid immediately. A-7, the
appellant, who was present at that time informed PW-1 that she can pay the said
demand within a period of two months.
PW-2 is closely related to PW-1. On 6.3.2000 he came to Pallapatti and went
to the house of PW-1. PW-2 was informed by PW-1 that there was a dowry demand
from the side of the accused. A marriage was scheduled to take place in the
house of a neighbour which is next to the house of A-1 and hence on 8.3.2002,
PW-2 came there between 11.00 a.m. and 12 noon. He was chatting with the said neighbour. Since PW-2 knew that there was a
dowry demand, he decided to meet the deceased in her house for that purpose.
When he was just getting down through the stair case, he was able to see the
house of the deceased Fathima. A window was open through which he was able to
see within 10 feet. At that time, A-1 and A-2 strangulated the deceased Fathima
with a rope and A-3 and A-4 caught hold of both the arms. On seeing this, PW-2
was shocked. When he was witnessing the occurrence, A-2 saw PW-2. Immediately,
PW-2 went over to the place of PW-1.
But he could not meet anybody and he went over to his native place, Salem
and returned on 9.3.2002.
When PW-1 went to the house of the accused, the wife of A-2 locked from
inside and informed that the deceased Fathima was upstairs. When PW-1 went
upstairs, she found only the dead body of her daughter and PW-1 was able to see
a ligature mark around the neck of the deceased. PW-1 immediately came back and
informed the relatives and proceeded to the Police Station. PW-13 the Sub
Inspector of Police was on duty on the day of occurrence. PW-1 gave a complaint
at about 1700 hrs which is marked as Ex.P-1 on the strength of which a case
came to be registered in Crime No.
49/2002 under Section 174 of the Code of Criminal Procedure, 1973 (in short
the 'Code'). Ex.P-11, the FIR was dispatched to the Court. On receipt of the
copy of the FIR, PW-14 the Deputy Superintendent of Police took up
investigation, proceeded to the scene of occurrence, made inspection and
prepared Ex.P-2 the observation Mahazar and Ex.P-12 the rough sketch. He also
sent a copy of the FIR to PW-10, the Revenue Divisional Officer. PW-10, the
Revenue Divisional Officer, on receipt of the copy of the FIR proceeded on the
place and also conducted inquest on the dead body in the presence of witnesses
and prepared Ex.P-9, the Inquest Report, wherein he opined that it was not a
case of suicide but it was the death by homicide. He also made enquiries from
the witnesses including the accused.
Following the same, the dead body was subjected to post mortem by PW-9, the
doctor attached to the Government Head Quarters Hospital, Karur, who opined
that the deceased appeared to have died of asphyxia due to strangulation about
24-36 hours prior to autopsy.
Originally, the case was registered under Section 174 of the Code. Later it
was converted into one under Section 498-A and 302 IPC and the express FIR
(Ex.P-13) was dispatched to the Court.
Pending investigation, A-1 to A-6 were arrested. A-2 came forward to give
confessional statement voluntarily and the same was recorded by PW-13, the
Deputy Superintendent of Police in the presence of witness, pursuant to which
A-2 has produced M.O.1-Nylon rope which was recovered under a recovery Mahazar,
On completion of the investigation, the Investigating Officer filed the
report. The case was committed to the Court of Sessions. Necessary charges were
framed. In order to substantiate the charges leveled against the accused, the
prosecution examined 16 witnesses and relied upon 13 exhibits and 3 material
objects. On completion of evidence on the side of the prosecution, the accused
were questioned under Section 313 of the Code as to the incriminating
circumstances found in the evidence of the prosecution witnesses which they
denied as false. The accused examined three witnesses who were all Medical
Officers through whom 5 exhibits were also marked.
The accused persons pleaded innocence and, therefore, trial was held and
conviction was recorded and sentence imposed as noted above.
5. In support of the appeal, learned counsel for the appellant submitted
that there was no evidence so far as the present appellant is concerned to show
that any demand for dowry was made by her. The witnesses had not stated that
she was present when the demand was made. Therefore, it is submitted that the
trial Court and the High Court erred in directing her conviction.
6. In response, learned counsel for the respondent-State supported the
judgment of the trial Court and the appellate Court.
7. Section 498-A appears in Chapter XX-A IPC.
8. Substantive Section 498-A IPC and presumptive Section 113-B of the Indian
Evidence Act, 1872 (in short the 'Evidence Act') have been inserted in the
respective statutes by the Criminal Law (Second Amendment) Act, 1983 and by the
Dowry Prohibition (Amendment) Act, 1986 respectively.
9. Section 498-A of IPC and Section 113-B of the Evidence Act include in
their amplitude past events of cruelty. Period of operation of Section 113-B of
the Evidence Act is seven years, presumption arises when a woman committed
suicide within a period of seven years from the date of marriage.
10. Section 498A reads as follows:
"498A: Husband or relative of husband of a woman subjecting her to
cruelty- Whoever, being the husband or the 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 wilful
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 coercing her or any person related to her to meet
any unlawful demand for any property or valuable security or is on account of
failure by her or any person related to her to meet such demand."
"113B: 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)."
11. 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 498A IPC. Cruelty has been defined in the
Explanation for the purpose of Section 498A. Substantive Section 498A IPC and
presumptive Section 113B of the Evidence Act have been inserted in the
respective statutes by Criminal Law (Second Amendment) Act, 1983. It is to be
noted that Sections 304B and 498A, 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. The
Explanation to Section 498A gives the meaning of 'cruelty'.
12. The object for which Section 498-A IPC was introduced is amply reflected
in the Statement of Objects and Reasons while enacting the Criminal Law
(Amendment) Act 46 of 1983. As clearly stated therein the increase in the
number of dowry deaths is a matter of serious concern. The extent of the evil
has been commented upon by the Joint Committee of the Houses to examine the
work of the Dowry
Prohibition Act, 1961. In some
cases, cruelty of the husband and the relatives of the husband which culminate
in suicide by or murder of the helpless woman concerned, constitute only a
small fraction involving such cruelty. Therefore, it was proposed to amend IPC,
the Code of Criminal Procedure, 1973 and the Evidence Act suitably to deal
effectively not only with cases of dowry deaths but also cases of cruelty to
married women by the husband, in-laws and relatives. The avowed object is to
combat the menace of dowry death and cruelty.
13. So far as the present appellant is concerned, the evidence is inadequate
to show that she was party to any demand for dowry. In fact, PW-1 stated that
when she went to the place of her daughter appellant was present alongwith A-1
The said A-1 demanded jewels and presentation of Rs.5,000/- for Ramzan. She
accepted that she told A-1 and A-2 that she will send the same within a week.
The next statement of this witness is very significant. She (appellant) told that
two months' time will be sufficient for offering the presentation. In other
words, she did not make any demand for dowry. That aspect has been accepted by
PW-1. Significantly, this witness in her cross examination had admitted that
appellant is residing at Coimbatore for the last 35 years. She has
categorically admitted that while she went to the house of her daughter, she
(appellant) was not present. Therefore, there is no evidence to show that
appellant was either present when the demand was made or she herself made any
14. Above being the position, the prosecution has failed to establish the
accusations against the appellant. Therefore, her conviction cannot be
maintained and is set aside. She was released on bail by order dated 22.2.2008.
In view of the order of acquittal, bail bonds shall stand discharged.
15. The appeal is allowed.