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CASE NO.:

Appeal (crl.) 779 of 2005

PETITIONER:

T. Aruntperunjothi

RESPONDENT:

State Through S.H.O., Pondicherry

DATE OF JUDGMENT: 05/04/2006

BENCH:

S.B. Sinha & P.P. Naolekar

JUDGMENT:

J U D G M E N T

S.B. SINHA, J :

Davamani (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.

Somehow 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 :

"\005.Further, 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.

In my 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\005"

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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.

PW 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.

The learned Sessions Judge framed the following charge against the

appellant:

"That 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) .

In 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.

We would, however, at this stage notice the deposition of those

witnesses who supported the case of the prosecution completely.

PW-7 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.

Three 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 February 1994.

The 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

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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 : (i) PW-3

Arumugham had been demanding dowry; (ii) a demand was made also by

the brother of the accused; and (iii) the hearsay evidence of PWs that the

deceased herself told that she was being harassed for demand of dowry.

It is of some significance to note that the mother of the deceased

categorically stated. :

"\005The 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.

PW-6 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.

The 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.

Even 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 by PW-3.

PW-8 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.

PW-9 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.

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We may now scrutinize the evidence led by the prosecution as regards

the alleged harassment of the deceased.

The 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.

We 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 :

"\005When 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\005."

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.

We may at this juncture may notice the peculiar features of the case.

PW-1, 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.

PW-2 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.

PW-3 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

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not known.

In the 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 :

"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, 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) Whosoever 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 (i) death of

a woman must have been caused by any burns or bodily injury or otherwise

than under normal circumstances; (ii) such death must have been occurred

within seven years of marriage (iii) soon before her death she was subjected

to cruelty or harassment by her husband or relative of her husband; (iv) such

cruelty or harassment must be in connection with the demand of dowry; and

(v) such cruelty is shown to have been meted out to the woman soon before

her death.

The 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.

It is 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 each case.

We would examine some of them.

In State of A.P. v. Raj Gopal Asawa and Another [(2004) 4 SCC 470],

it is stated :

"10. 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:

"113-B. Presumption as to dowry death.\027When 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.\027For the purposes of this section 'dowry

death' shall have the same meaning as in Section 304-B

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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 essentials:

(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

304-B 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.

(4) 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 :

"12. 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.

Cruelty 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.

The 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

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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.

If the 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:

"11. 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\005"

The said decision is, therefore, of no assistance to the prosecution.

The 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.

However, 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 :

"\005In my report, I have examined some witnesses who

have not stated that Dawamani was ill-treated by her

mother-in-law..."

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His evidence in this behalf is not very clear, when he stated :

"\005I 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 :

"\005In 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.

In the 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\005"

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.

The 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 :

"\005The 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\005."

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.

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There 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, was plausible.

Having 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.

For 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.