Appellant faced a trial in S.C.No.92 of 2000 before the Additional Sessions Court (Adhoc-I), Manjeri for an offence punishable under Section 304B of the Indian Penal Code (in short, “IPC”). During the trial, eight witnesses were examined on the prosecution side and four witnesses on the side of the accused/appellant. Nine documents were marked by the prosecution and seven documents by the accused. MO1 is also marked.
2. Heard the learned counsel for the appellant/accused and the learned Public Prosecutor.
3. Prosecution case, stated briefly, is thus: Appellant married Shiny, the deceased and after marriage they resided in the matrimonial home. Appellant subjected her to cruelty and harassment by demanding dowry. As the harassment became unbearable, she committed suicide by self-immolation on 11.05.1999. The incident was between 4.00 p.m. and 6.00 p.m. on that day. She was taken to hospital, nevertheless she succumbed to the burn injuries at about 10.30 p.m. on the same day. It is alleged that the appellant's cruel and inhuman acts drove her to commit suicide.
4. Learned counsel for the appellant submitted that the court below failed to notice the improbabilities in the prosecution evidence. The testimony of witnesses are artificial and unnatural. The prosecution witnesses intentionally framed up the appellant. This being a first appeal on facts, I shall go through the evidence in detail.
5. PW1, Santhosh, is the brother-in-law of deceased Shiny. PW1 deposed that marriage between the appellant and deceased Shiny took place about one and a half year before the incident. Even according to the contention of the appellant, deceased Shiny was a permanent resident in the matrimonial home since the marriage. PW1 deposed that the appellant demanded gold ornaments weighing 12 sovereigns and `20,000/- as cash at the time of marriage. Due to financial difficulties, deceased Shiny could be married away by giving only 12 sovereigns and `10,000/-. It is an undisputed fact that in their relationship though a boy child was born, the infant expired within three months. PW1 asserted that the appellant and his house-hold harassed the deceased continuously demanding more money. Testimony of PW1 would show that during the night previous to the date of incident, the appellant and deceased came to the family house wherein PW1, his wife (PW3), children and mother-in-law (PW2) are residing. It is come out in evidence through PWs 1 and 2 that PW2 had only two girl children. It is, therefore, the prosecution case that PW1 was looking after the affairs in the family house of the deceased. PW1 naturally took initiative for the marriage of the deceased with appellant. On the previous night, the appellant and deceased Shiny came home and Shiny showed her hands to PWs 1 to 3 stating that the appellant beat mercilessly. PWs 1 to 3 deposed that deceased Shiny's hands were swollen due to brutal assault. When PW1 questioned the appellant, he stated that the deceased should remain in her family house until `10,000/- was paid. The appellant thereafter went away leaving the deceased in the family house. During that night, she narrated her grief stricken story to PWs 1 to 3. On the date of occurrence, at about 4.00 p.m., PWs 1 to 3 went to a hospital at Morayur, a nearby place, for treating a wound on the leg of PW2. At that time, Shiny was alone in the house. They returned home at about 6.00 p.m. PW1 testified that they could smell kerosene and a burnt odour.
Immediately they called neighbours. When the door was opened, they could find Shiny lying on the floor in a charred state. Signs of life still could be seen. Immediately she was taken to Medical College Hospital, Kozhikode. Doctor examined her and admitted in the hospital. At about 10.30 p.m., she expired. PW1's definite version is that Shiny committed suicide due to intolerable harassment meted out by the appellant.
6. This witness was cross-examined at length. Appellant has a case that a monitory dispute had arisen between himself and PW1 a couple days before the incident. According to the appellant, PW1 was trying to fix him due to animosity. This suggestion is denied by PW1. Defence witnesses were also examined to show that PW1 was enmical to the appellant and a criminal case was pending between the parties. PW1 stated that the appellant, after securing bail, filed a false complaint against him. It is also suggested to PW1 that Shiny might have committed suicide since he tried to molest her. This case also is strongly denied by PW1. In respect of the allegation of the prosecution that the appellant habitually assaulted the deceased demanding more money revealed through PW1 remains believable in spite of cross-examination.
7. PW2 is the mother of the deceased and mother-in-law of PW1.
She also deposed that Shiny's son died on the 90th day of his birth. PW2 stated that Shiny resided in her husband's house after marriage. According to PW2, her life was miserable in the matrimonial home. They could not pay the entire amount demanded by the appellant and for non-payment of `10,000/-, the appellant used to physically assault the deceased, deposed PW2. PW2 also spoke about the arrival of Shiny and the appellant at about 7.00 p.m. during previous day of the incident. PW2 deposed that Shiny was profusely weeping in front of them. She went and talked to Shiny. At that time, she showed her hands in a swollen condition allegedly beaten up by the appellant. PW2 also stated that the appellant asked Shiny to remain in the family house until they paid `10,000/- to him. According to PW2, after the death of Shiny, she was seeing the appellant for the first time in court. PW2 also testified that at about 6.00 p.m. she saw the burnt body of her daughter when she returned from the hospital along with PWs 1 and 3. Neighbours thronged in their house took her to hospital. At about 10'o clock in the night, she died. Cross-examination on this witness did not yield much result. It is the contention of the defence that as PW2 had only two daughters and she needed support of PWs 1 and 3 for her future life and therefore she was unduly supporting PW1 to falsely implicate the appellant in this case. This defence case is not probabilised in spite searching cross-examination. Another defence case put to PW2 that PW1's immoral advances caused the suicide of Shiny is strongly denied by PW2.
8. PW3 is the wife of PW1 and daughter of PW2. She also narrated the prosecution case in harmony with the versions of PWs 1 and 2. PW3 also deposed about the incessant harassment meted out by the appellant to the deceased by demanding dowry. PW3 also deposed about the incident happened during the previous evening. PW3 stated that she saw her sister with swollen hands at about 7.00 p.m. during the previous evening. The appellant informed them that Shiny would be taken back to matrimonial home only on payment of `10,000/-. It is come out in evidence through material prosecution witnesses that occasionally deceased Shiny and appellant used to stay in the family house. But, Shiny stayed alone in the family house only on the night previous to the date of occurrence. She also stated that at about 4.00 p.m. on the date of occurrence, PWs 1 to 3 went to a hospital for treating PW2. It is come out in evidence that the deceased was also asked to go to hospital, but she refused to do so. When they returned home, kerosene smell was coming out and when the door was opened, they found the deceased on the floor with burn injuries. In spite of cross-examination of this witness, no serious dent or discredit could be made on her testimony.
9. PWs 4 and 5 are official witnesses and PW6 is a mahazar witness. Their testimony is of a formal nature. PW7 registered Ext.P1 first information statement and Ext.P6 first information report.
10. PW8 is the investigating officer. He collected material objects.
He recovered a black can having a capacity of five litres and a match box allegedly used by the deceased for pouring kerosene and to set herself ablaze. As part of the investigation, he questioned the witnesses, collected the postmortem certificate and other things required for completing the investigation. This witness was cross-examined to elicit answers that he did not question the Doctor, who treated the deceased. PW8 answered that the deceased was in a state of unconsciousness when she was hospitalised. She was unable to speak. Suggestion that non-examination of the Doctor was an attempt on the part of the prosecution to intentionally suppress the real case is denied by this witness. The defence tried to make out a case from the statement in the inquest report that PW1 was the last person who had seen the deceased before the incident. According to the defence version, he tried to molest the deceased immediately before the incident. But, there is absolutely no material to accept this defence case or even to probabilise such a version.
11. Ext.P7 is the postmortem certificate. The postmortem findings are as follows:
“ POSTMORTEM FINDINGS A.GENERAL Body of a moderately built and nourished female of length 152 cm and weight 51 k.g. Eyes closed. Conjunctivae pale. Corneae hazy. Finger nails blue. Hairs or entire scalp, eyebrows and eyelashes were synged. Burnt remnants of brassiere, panties and underskirt were seen around the waist. Rigor mortis established and retained all over the body. Postmortem staining could not be made out due to burns (Body refrigerated at 10.35 p.m. on 12.5.99) B.INJURIES (ANTEMORTEM) BURNS Dermo epidermal burns involving entire body, except soles of both feet and left palm, with peeling off of skin at multiple places exposing crythematous areas underneath.
C. OTHER FINDINGS Skull intact. Brain 1400 gm congested. Trachea and bronchi contained soot particles. Lungs Rt.300 gm, Lt.250 gm congested and oedematous. Heart 250 gms, walls, valves and chambers normal. coronaries patent. Liver 1400 gm congested. Spleen 150 gm congested. Kidneys 150 gms each congested. Stomach and contents 200 gms, contained greenish brown mucoid fluid without any unusual smell. Mucosa normal. Urinary bladder empty. Genital organs uterus-normal size, cavity empty. Appendages normal. Spinal column and cord intact.
OPINION AS TO THE CAUSE OF DEATH:
Deceased died due to Burns.”
12. It is true that the Doctor who issued Ext.P7 was not examined, but there is no dispute regarding the findings in the postmortem certificate that the deceased died on account of extensive burn injuries.
13. Now I shall deal with the defence evidence. DW1 is a Head Constable in Malappuram Police Station and he was cited to prove that the appellant filed a complaint (Ext.D2) before the Police and Ext.D3 is the first information report. The allegation in the case filed by the appellant against PW1 and others is that on 15.05.1999 at about 15 hours, the accused trespassed into the courtyard of the appellant and stole an autorickshaw parked in the compound. The case was registered on the basis of a private complaint filed by the appellant against the accused persons therein. It came out in evidence that the case was filed by the appellant after he was arrested in this case and released on bail. DW2 proved the investigation and filing of Ext.D4 final report in the case filed by the appellant. DW3 proved Exts.D6 and D7. DW4 is a neighbour of the deceased. According to him, he was the first person to enter the house after the mishap. At that time, the house-hold members were not there. DW4 stated that he found smoke emanating from the room wherein Shiny was found. He broke open the door and found a burning kerosene lamp in the room. Testimony of DW4 will only support the prosecution case that PW1 and other members in her family were not there at the time when deceased Shiny set fire on herself.
14. The case propounded by the defence that PW1 is the real villan of the drama and because of his lascivious advancement towards the deceased, she was forced to immolate herself is not established either by evidence of the defence witnesses or in the cross-examination of PWs 1 to 3. It is true that there is evidence to show that the appellant and PW1 were engaged in a dispute before the incident. But, the defence case that PW1, in order to wreak vengeance against the appellant, tangled him in a false case and PWs 2 and 3, out of their servility to PW1, supported him cannot be believed. In the absence of any reason to hold that mother of the deceased had any intention to shield the actual offender from prosecution, it cannot be held that she was unduly supporting PW1. Therefore, facts and circumstances proved through material prosecution witnesses show that the deceased committed suicide on account of the harassment meted out by the appellant.
15. Learned counsel for the appellant placed reliance on the decision of the Supreme Court in Sunil Bajaj v. State of M.P. ((2001) 9 SCC 417) to contend that the appellant in this case is entitled to an acquittal since the prosecution failed to establish two essential ingredients in Sec.304B IPC, viz., soon before the death the deceased has been subjected to cruelty or harassment by her husband and the same was for or in connection with demand of dowry. The principle in the above decision can be easily distinguished in the facts and circumstances of this case.
16. Learned counsel for the appellant contended that there is no material to hold that the incident happened within seven years of marriage between the appellant and the deceased. Sec.304B IPC dealing with 'dowry death' reads as follows:
“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 purposes 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.”
The following essentials must be satisfied to attract an offence under Sec.304B IPC:
“1) The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances;
2) Such death must have occurred within 7 years of her marriage;
3) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband;
4) Such cruelty or harassment must be for or in connection with demand of dowry.”
Sec.113 A of the Evidence Act deals with a presumption as to abetment of suicide by a married woman. The provision reads as under:
“113A. Presumption as to abetment of suicide by a married woman.-When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
Explanation.-For the purposes of this section, "cruelty" shall have the same meaning as in section 498A of the Indian Penal Code (45 of 1860).”
The expression 'soon before death' occurring in Sec.304B IPC has been interpreted to mean that the harassment or cruelty meted out must have happened within a reasonable time before the death. In this case, there is ample evidence to show that on the previous night, the deceased accompanied by the appellant came to her family house and narrated the extreme sufferings experienced by her in the matrimonial home.
Therefore, there is no reason to doubt whether the facts and circumstances revealed by evidence show that the appellant is guilty of an offence under Sec.304B IPC. It is also noteworthy that PWs 1 to 3 emphatically deposed that the marriage between the deceased and the appellant was about two years before the sad demise of Shiny. There is no challenge to this case of PWs 1 to 3. Even though no document is produced to show the date of marriage, considering the age of the parties and the reliable oral evidence, I find that the marriage was well within seven years and the presumption under Sec.113B of the Evidence Act is attracted in this case. There is no material to rebut the presumption churned out either from the prosecution evidence or by the defence evidence. Therefore, I find no legal infirmity in the conviction of the appellant under Sec.304B IPC by the trial court.
17. Court below imposed rigorous imprisonment of five years on the appellant and directed him to pay `1,000/- as fine. It is relevant to note that PW2, the mother of the deceased, is entitled to get compensation for the untimely and unnatural death of her daughter. True, the ability of the accused to pay compensation is a relevant factor. It is also well settled that if the substantive sentence is reduced in an appeal filed by the accused and if fine amount is enhanced, it cannot be viewed as enhancement of the sentence. Considering the age of the appellant and the social strata to which the parties belong, I find that some modification in the sentence is necessary to meet the ends of justice.
In the result, the appeal is partly allowed. Conviction of the appellant under Sec.304B IPC is confirmed. The appellant shall undergo rigorous imprisonment for a period of three years and pay a fine of `25,000/- (Rupees Twentyfive thousand only), failing which, he shall undergo simple imprisonment for a period of three months as default sentence. If fine amount is recovered, it shall be paid to PW2 as compensation under Sec.357(1) of the Code of Criminal Procedure. The appellant is entitled to get set off under Sec.428 of the Code of Criminal Procedure. Court below shall take steps to execute the sentence on receipt of records from this Court.
All pending interlocutory applications will stand dismissed.
A. HARIPRASAD, JUDGE.
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