Accused 1 to 4 in S.C.No.330/2003 on the file of the Additional Sessions Court, Fast Track Court-II, Thrissur are the appellants herein. The appellants were charge sheeted by the Sub Inspector of Police, Vellikulangara in Crime No.178/2002 under Section 304 B read with Section 34 of the Indian Penal Code. 2. The case of the prosecution in nutshell was that the deceased Shamla married the first accused Basheer on 2.4.2000 and thereafter she was living with the first accused along with the other accused persons in their house and while so, she was subjected to cruelty, both physically and mentally, demanding more dowry, which prompted her to commit suicide on 19.9.2002 at 11.30 a.m from the house of the accused and thereby all of them have committed the offence punishable under Section 304 B read with Section 34 of the Indian Penal Code.
3. After investigation, final report was filed before the Judicial First Class Magistrate Court, Chalakudy, where it was taken on file as C.P.38/2003 and thereafter it was committed to Sessions Court, Thrissur by the learned Magistrate under Section 209 of the Code of Criminal Procedure and thereafter it was made over to the Additional Sessions Court, Fast track- II, Thrissur for disposal.
4. When the appellants appeared before the court below, the learned Additional Sessions Judge after hearing both sides, framed charge under Section 304 B read with Section 34 of the Indian Penal Code against all the accused. The same was read over and explained to them and they pleaded not guilty.
5. In order to prove the case of the prosecution, Pws 1 to 16 were examined, Exts.P1 to P12 and P12(a) and MOs 1 and 2 were marked on the side of the prosecution. After closure of the prosecution evidence, the accused were questioned under Section 313 of the Code and they denied all the incriminating circumstances brought against them in the prosecution evidence. The first accused had stated that on the previous day of the incident, deceased Shamla was having cough and she went to the doctor for consultation. Some days prior to the same, when doctor was consulted, it was revealed that she was pregnant.
The first accused purchased medicine at 9.45 a.m on that day and then went to the work spot. A jeep driver came to the work spot and wanted him to come to his house. There was no circumstance for committing suicide. They were all residing there happily and unitedly. The second accused had stated that he had nothing more to say than what was stated by his son, the first accused and he is an ill person. The third accused has stated that when she came, she saw flames and since she was not able to open the door she came to the road side and made hue and cry. At that time, one young lady came and she told her that flame is coming from the kitchen and she did not know the reason. Immediately that lady poured water through the window and she told to open the door somehow. Accordingly, the door was opened. By the time, she lost her consciousness. When water was poured, it was revealed that it was Shamla, who died by setting fire to her. The 4th accused has stated that they are innocent and the statement given by the family members of the deceased are false and it was not a case of suicide and it is an accidental death. Since the evidence of the accused did not warrant an acquittal under Section 232 of the Code, the appellants were called upon to enter their defence. But no oral or documentary evidence adduced on the side of the appellants in defence except marking Ext.D1and D2, the contradictions in the 161 statement of Pws1 and 4. After considering the evidence on record, the learned Additional Sessions Judge found the appellants guilty under Section 304 B read with Section 34 of the Indian Penal Code and convicted them thereunder and sentenced accused 1 and 4 to undergo rigorous imprisonment for 7 years each and accused 2 and 3 to undergo simple imprisonment for 7 years each. Aggrieved by the same, the present appeal has been preferred by the appellants/accused before the court below.
6. Heard the learned counsel for the appellants and the learned Public Prosecutor.
7. The points that arise for consideration are:
i. Whether the court below was justified in coming to the conclusion that the prosecution has proved beyond reasonable doubt that the accused have committed the offence punishable under Section 304B of the Indian Penal Code and consequential conviction for that offence is proper?
ii. If so, the sentence imposed is proper and legal?
8. Point No.1:
The learned counsel for the appellants submitted that except the evidence of Pws1 to 6, there is no other evidence to connect the incident. PW1 is the person, who rushed to the spot immediately on seeing the incident and she did not support the case of the prosecution except stating that on hearing the hue and cry, she rushed to the spot and saw the third accused brooming one of the rooms and at that time she saw some flames coming from the kitchen side and immediately she rushed to the spot and at that time the third accused also followed. Thereafter she poured water through the window and opened the door and again poured water to bring down the flame and only thereafter they could see the body of Shamla in flames. Thereafter she sent a person to bring the first accused and at that time, the 4th accused came there and they took the deceased to the hospital. She had further stated that the deceased was residing happily and she is a moody person and used to told that there was some quarrel between the deceased and mother-in-law and she thought that it was the usual thing in all the families. Except this, there is nothing spoken to by PW1 regarding the incident and she is a neighbour as well.
Pw3 is the brother of the deceased, who gave the First Information Statement, PW4 is her first cousin, PW5 is the mother of the deceased and PW6 is the sister of the deceased and they were only said about the ill treatment alleged to have happened some months ago. There is nothing on record to show that soon before the death, the deceased was subjected to cruelty demanding dowry, so as to attract the offence punishable under Section 304 B of the Indian Penal Code. Further, the relative witnesses have improved their version regarding the alleged cruelty said to have been spoken to them by the deceased which they have not stated before the investigating officer.
9. Further, the evidence of PW2, the doctor will go to show that some days prior to the incident namely 4.9.2002, the deceased along with her husband came for check up and it was revealed at that time that she was pregnant and on 19.9.2002 in the morning the deceased came to the hospital and since she was in the labour room and she could not attend the deceased personally and when enquired, it was understood that she was having some cough and she advised to give some medicine. She proved Ext.P2 prescription and her evidence will go to show that there is a possibility of depression during pregnancy.
10. Further, the evidence of Pws 3 to 6 will go to show that the deceased did not disclose the factum of second pregnancy to them and she was worried about the second pregnancy and might have prompted her to commit suicide. There is no evidence of any ill treatment except some vague statement given by the witnesses. So, under the circumstances, the courts below were not justified in convicting the appellants for the offence alleged.
11. On the other hand, the learned Public Prosecutor submitted that the evidence of Pws 3 to 6 will go to show that the deceased was being subjected to cruelty on the ground that dowry given was not sufficient and even on certain occasions, when the deceased came to the house along with the first accused, he had beaten her in front of them. Further, the evidence will go to show that the ill treatment continued and there is no possibility of the impact of the ill treatment going away from the mind of the deceased till her committing suicide. So it can be taken that the deceased was subjected to cruelty soon before her death and the court below was perfectly justified in convicting the appellants for the said offence.
12. The case of the prosecution as emerged from the prosecution witnesses was as follows:
Deceased Shamla was given in marriage to the first accused Basheer, who is the son of accused 2 and 3 and brother of the 4th accused on 2.4.2000 as per custom. The father of the deceased was a deaf and dumb person. She was having two brothers, one of whom is PW3 and two sisters Haseena Rukkiya (PW6) and Seenath. The deceased Shamla was the youngest daughter of her parents. According to the prosecution witnesses, at the time of marriage 25 sovereigns of gold ornaments and cash of Rs.50,000/- was given as dowry. The first accused was engaged in the sale of clothes on instalment basis and also doing business in bangles at festival places. For one month, their marital life was happy and thereafter all the accused persons including her husband started ill treating her, both physically and mentally stating that dowry given was less and he would have got more dowry if he had married any other person and asked her to get more cash and also beaten her. When she came to home, she used to tell about these things to PW3, her brother and PW5 her mother. She used to go to the house of PW4, her cousin brother and PW6 her sister and she used to tell about the ill treatment. Pws 3 and 5 had gone to the house of first accused once and asked him not to treat her cruelly and thereafter there was some change in the attitude, but according to the prosecution, after some time they started repeating the same. In the meantime, she became pregnant and came home for delivery and delivered the first child and went back to her matrimonial home after delivery. Even thereafter, the ill treatment continued. In the meantime, she had some health problems and the first accused and the deceased went to consult PW2, a Gynecologist and it was revealed at that time that she was pregnant second time, which is evidenced from Ext.P2 prescription given by PW2. Thereafter they went home. According to the prosecution, that was happened on 4.9.2002. Thereafter again on 19.9.2002 the deceased went to the hospital of PW2. But at that time, PW2 was busy with her labour room engagement and she could not attend the deceased personally and thereafter she enquired through the staff and came to understand that she was having some cough problem and she advised the staff to give medicine and thereafter she came to know about the death of the deceased. On 19.9.2002 at about 11.30 a.m while PW1, who is a neighbour, was brooming the court yard of her house, she heard some hue and cry from the house of the accused and immediately she rushed to the spot and saw some flames coming from the kitchen and she could not enter the room as it was bolted from inside and thereafter she came to the kitchen side of the house and saw flames coming from the kitchen. She had seen the third accused, the mother of the first accused brooming another room in that house. On seeing PW1, she also accompanied her and PW1 took some water and poured inside the kitchen to subside the fire. Since it was not subsided, she broke open the room, went inside and poured some more water. At that time, she found some substance burning under the platform of the kitchen and after subsiding of the fire, they could understand that it was the deceased Shamla and she asked her why she had been done and thereafter at her instance the 4th accused came there and took the deceased to the hospital. The matter was informed to PW3 and family members of the deceased and PW3 came to the house and then went to the hospital. He gave Ext.P3 statement to the police which was recorded by PW11, the Assistant Sub Inspector of Police and he registered Ext.P8 First Information Report as Crime 178/2002 of Vellikulangara police station against the appellants under Section 304 B read with Section 34 of the Indian Penal Code. When she was taken to hospital, it was revealed that she died. The Tahsildar came to the place and conducted inquest of the body of the deceased and PW11 prepared Ext.P4 inquest report as instructed by the Tahsildar and the inquest was conducted in the presence of PW7 and others and it was revealed during inquest that the deceased died due to ill treatment demanding dowry at the hands of the accused. At the request of PW11, PW12,Dr. N.G. Ravi conducted postmortem examination and issued Ext.P11 postmortem certificate, in which he had opined that the deceased died due to burn injuries. PW11 collected the articles seen at the place of occurrence and also on the body of the deceased including MO1 kannas with kerosene and MO2 gold ornaments found on the body of the deceased and forwarded the same to the court along with Ext.P9 property list. He seized Ext.P2 prescription given by PW2 to the deceased as Per Ext.P10 seizure mahazer. As requested by the investigating officer, PW9, the Village Officer went to the place of occurrence and prepared Ext.P6 sketch plan of the place of occurrence and also issued Ext.P5 ownership certificate of the house from where the deceased committed suicide. The articles taken at the time of inquest were produced before the police by PW13. Thereafter the investigation was conducted by PW10, the Deputy Superintendent of Police, Thrissur. He questioned the witnesses and recorded their statement. He seized Ext.P12 marriage register containing Ext.P12 (a) entry regarding the marriage of the first accused and deceased Shamla as produced by PW14, then Secretary of the Aduvassery Muslim Juma ath the as per Ext.P7 mahazer in the presence of PW10 and another. He completed the investigation and submitted final report
13. Before going into the merits of the case on facts, this Court felt that it is appropriate to consider the precedents to understand law on the aspect and the ingredients of the offence to be proved and the presumption to be drawn on the basis of the amendment to the Evidence Act on this aspect.
14. Section 304 B deals with dowry death, which reads as follows:
34 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 this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1962 (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.”
15. The presumption to be drawn in the case of suicide and dowry death were incorporated in the Evidence Act which read as follows:
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 498 A of the Indian Penal Code (45 of 1860).
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 304B of the Indian Penal Code (45 of 1860).
16. In order to attract the presumption under Section 113 B of the Evidence Act in connection with dowry death punishable under Section 304 B of the Indian Penal Code, what are all the things to be established has been considered by the Hon'ble Supreme Court in Kashmir Kaur v. State of Punjab (2012 (4) KLT Suppl.90 SC)=(JT 2012 (12) SC 396) as follows:
“16. From the above decisions the following principles can be culled out:
a. To attract the provisions of Section 304 B IPC the main ingredient of the offence to be established is that soon before the death of the deceased she was subjected to cruelty and harassment in connection with the demand of dowry.
b. The death of the deceased woman was caused by any burn or bodily injury or some other circumstance which was not normal.
c. Such death occurs within seven years from the date of her marriage.
d. That the victim was subjected to cruelty or harassment by her husband or any relative of her husband.
e. Such cruelty or harassment should be for or in connection with demand of dowry.
f. It should be established that such cruelty and harassment was made soon before her death.
g. The expression (soon before) is relative term and it would depend upon circumstances of each case and no straightjacket formula can be laid down as to what would constitute a period of soon before the occurrence.
h. It would be hazardous to indicate any fixed period and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113Bof the Evidence Act.
i. Therefore, the expression “soon before” would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate or life link between the effect of cruelty based on dowry demand and a the concerned death. In other words, it should not be remote in point of time and thereby make it a stale one.
j. However, the expression “soon before” should not be given a narrow meaning which would otherwise defeat the very purpose of the provisions of the Act and should not lead to absurd results.
k. Section 304B is an exception to the cardinal principles of criminal jurisprudence that a suspect in the Indian Law is entitled to the protection of Article 20 of the Constitution, as well as, a presumption of innocence in his favour. The concept of deeming fiction is hardly applicable to criminal jurisprudence but in contradistinction to this aspect of criminal law, the legislature applied the concept of deeming fiction to the provisions of Section 304B.
i. Such deeming fiction resulting in a presumption, is however a rebuttable presumption and the husband and his relatives, can, by leading their defence prove that the ingredients of Section 304 B were not satisfied.
m. The specific significance to be attached is to the time of the alleged cruelty and harassment to which the victim was subjected to, he time of her death and whether the alleged demand of dowry was in connection with the marriage. Once the said ingredients were satisfied it will be called dowry death and by deemed fiction of law the husband or the relatives will be deemed to have committed that offence”.
17. The same principle has been reiterated in the decisions reported in Prem Singh v. State of Haryana (AIR 1998 SC 2628), K. Prema S. Rao & another v. Yadla Srinivasa Rao and others (2003 (1) SCC 217), Kaliyaperumal & another v. State of Tamil Nadu (2004 (9) SCC 157), Harjit Singh v.
State of Punjab (2006 (1) SCC 463), Ram Badan Sharma v. State of Bihar ( 2006(10)SCC 115), Devi Lal v. State of Rajasthan (2007(14) SCC 176), Hazarilal v. State of Madhya Pradesh (2009 (13) SCC 783), Pathan Hussain Basha v. State of A.P. (JT 2012 (7) SC 432), State of Kerala v.
Rajayyan (1994 (2) KLT 700).
18. It is clear from the above decisions that in order to attract the presumption of dowry death, the prosecution has to prove that :
(1) the death of woman was caused by any burns or bodily injury or in some other circumstances which were not normal (2) such death occurs within seven years from the date of her marriage (3) that the victim was subjected to cruelty or harassment by her husband or any relatives of her husband (4) such cruelty or harassment should be for or in connection with the demand of dowry and (5) it is established that such cruelty and harassment was made soon before her death. It has been further observed in these decisions that 'soon before death' is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113 B of the Evidence Act. The expression 'soon before her death' used in the substantive Section 304 B IPC and Section 113 B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression 'soon before' is not defined as well. It is clear from the above decisions that the determination of the period which can come within the term 'soon before' is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression 'soon before' would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and life link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence.
19. Further in the decision reported in Manu Sao v. State of Bihar (2010(12)SCC 310) the Hon'ble Supreme Court has considered the scope of failure to explain incriminating circumstances by the accused in his 313 examination and observed that:
The primary purpose is to establish a direct dialogue between the court and the accused and to put the accused every important incriminating piece of evidence and grant him an opportunity to answer and explain. Once such a statement is recorded, the next question that has to be considered by the court is to what extent and consequences such statement can be used during the enquiry and trial. The statement of the accused can be used to test the veracity of the exculpatory nature of the admission, if any, made by the accused. It can be taken into consideration in any enquiry or trial but still it is not strictly evidence in the case. The provisions of Section 313 (4) explicitly provide that the answers given by the accused may be taken into consideration in such enquiry or trial and put as evidence against the accused in any other enquiry or trial for any other offence for which such answers may tend to show he has committed. In other words, the use is permissible as per the provisions of the Code but has its own limitations. The courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made under this section should not be considered in isolation in conjunction with the evidence adduced by the prosecution.
Further in the same decision, it has been observed that : The object of recording the statement of the accused under Section 313 CrPC is to put all incriminating evidence against the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. At the same time, also to permit him to put forward his own version or reasons, if he so chooses, in relation to his involvement or otherwise in the crime. The court has been empowered to examine the accused but only after the prosecution evidence has been concluded. It is mandatory obligation upon the court and besides ensuring the compliance therewith the court has to keep in mind that the accused gets a fair chance to explain his conduct. The option lies with the accused to maintain silence coupled with simpliciter denial or in the alternative to explain his versions and reasons can for his alleged involvement in the commission of the crime. This is the statement which the accused makes without fear or right of the other party to cross examine him. However, if the statements made is false, the court is entitled to draw adverse inferences and pas consequential orders, as may be called for in accordance with law.
20. In the decision reported in Sharad Birdhichand Sarda v. State of Maharashtra (AIR 1984 SC 1623) the Hon'ble Supreme Court has held that statement given by the deceased relating to her death is admissible under Section 32 (1) of the Evidence Act and it is applicable to both homicide and suicide. Further in the same decision, it has been observed that the evidence of close relatives should be examined by the court with great care and caution as there is possibility of tendency to exaggerate or add facts by them.
21. In the decision reported in Arulvelu and another v. State represented by the Public Prosecutor and another (2009 (10) SCC 206) the evidenciary value of the First Information Statement has been considered by the Hon'ble Apex Court and observed that the First Information Report should at least mention the broad story of the prosecution and not mentioning the material and vital facts may affect credibility of First Information Report. It has been observed that the First Information Report cannot be an encyclopedia to contain all the details of the history of the case but at least should mention broad story of the prosecution.
22. In the decision reported in Kans Raj v.State of Punjab and others (2000 Crl.L.J 2993) it has been observed that:
For the fault of the husband, the in-laws or the other relations cannot, in all cases, be roped in only on ground of being close all cases be held to be involved in the demand of dowry. In cases where such accusations are made, the overt acts attributed to persons other than husband are required to be proved beyond reasonable doubt. By mere conjectures and implications such relations cannot be held guilty for the offence relating to dowry deaths. A tendency has, however, developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry death which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their over enthusiasm and anxiety to seek conviction for maximum people the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused.
Further in the same decision it has been held that:
In order to admit the evidence under Section 32 of the Evidence Act statement by the deceased not required to have been made in imminent expectation of death so as to be admitted in evidence.
Further in the same decision the scope of 'soon before death' occurring in Section 304 B has been considered and observed that:
Continuous harassment connected with the demand of dowry shown to be in existence till date when deceased reported to have met parents two days before her death. There was no intervening circumstance showing settlement regarding demand of dowry brought on record. Existence of harassment would be deemed to be 'soon before death'.
It has been further observed that:
In relation to dowry deaths, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be 'soon before death' if any other intervening circumstance showing the non existence of such treatment is not brought on record, before the alleged such treatment and the date of death. It does not, however, mean that such time can be stretched to any period.
In the same decision it has been observed that:
Moreover, no presumption under Section 113 B of the Evidence Act would be drawn against the accused if it is shown that after the alleged demand, cruelty or harassment the dispute resolved and there is no evidence of cruelty and harassment thereafter. Mere lapse of some time by itself would not provide to an accused a defence, if the course of a conduct relating to cruelty or harassment in connection with the dowry demand is shown to have existed earlier in time not too late and too stale before the date of death of the woman.
With the above principle in mind, the facts and evidence in this case has to be evaluated.
23. In this case, there is no dispute regarding the fact that the marriage between the deceased and the first accused was conducted on 2.4.2000 and it is also an admitted fact that the deceased died on 19.9.2002 from the house of the accused persons due to burn injuries caused as a result of her committing suicide by setting fire to herself. So it is clear from the above that the death was not a natural one and this was happened within seven years of marriage. In order to attract the offence under Section 304 B of the Indian Penal Code the prosecution has to further prove that there existed cruelty or harassment met by the deceased at the hands of the accused in connection with demand for dowry and that harassment or cruelty was done or committed soon before the commission of suicide. So unless these two links are proved by the prosecution beyond releasable doubt, it cannot be said that the prosecution has proved that the accused have committed the offence punishable under Section 304 B of the Indian Penal Code.
24. In order to prove the last two limbs of the offence, the prosecution relies on the evidence of PWs 1 to 6. PW1 is a neighbour of the accused persons and it was she who had first seen the deceased in flames in the kitchen of that house. According to her, on the date of the alleged incident, at about 11.30 a.m while she was brooming her courtyard of the house, she heard some sound from the house of the deceased and immediately she rushed to the spot and she saw the front door closed from inside. Thereafter she ran towards the kitchen side and at that time she saw the third accused, the mother of the first accused, Pathumma was brooming the neighboring rooms. When she ran towards the kitchen, the third accused also accompanied her and it was at that time she saw flames coming from the kitchen and she poured water though the window to put off the fire and thereafter she went inside and again poured water and found somebody under the platform of the kitchen slab and identified her as Shamla, the deceased and she asked her ] V ] ] U ] ÿ and at that time the third accused asked ] V r V. ] ] V r V She had further stated that she had not seen any dispute between the deceased and her husband and she never complained about her husband to her. She had stated about her feelings in respect of the incident as follows:
] U U ] ~ ÿ ] ] ] U V . U U ] U ] ] .
V ] ] U ] ÿ ] ÿ V. ] ] U r ] . She had denied having stated in Ext.P1 that from the date of the marriage, the accused persons were finding fault with the work done by the deceased and quarreling with her. She had further described the things happened in the house as follows:
V. It is also seen from her evidence that the deceased was not in the habit of freely mingling with others and she is a reserved type. When a question was put to her regarding the reason for to commit suicide, she had stated as follows:
] ]N ] ] ] U U ] U U ] r ] r] ] .
She further stated that she had denied having stated in Ext.D1, as stated to the investigating officer that at the time when she reached there, the third accused was coming towards her house with the child of Basheer from the northern side to southern side and she denied that she did not state to the police that at the time when she came to the house, the third accused was brooming the room next to the kitchen from there the incident occurred. These are the contradictions and omissions brought in the evidence of PW1. She was declared hostile as she did not support the case of the prosecution regarding the cruelty met by the deceased at the hands of the accused person. Though her evidence will go to show that there was some incidents that used to happen in the house of the deceased such as quarrel between the mother-in-law and the daughter-in-law and she had no case that the other accused persons have got any ill will for committing any act of cruelty against the deceased as according to her such things used to happen in all houses. She had no case that the deceased ever told that the accused persons had at any time assaulted her physically or made any demand for dowry. But that will not helpful to come to the conclusion that there was any demand for dowry and the quarrel was on account of the same. Even her evidence will go to show that such things or quarrel will happen usually in all houses. Further she had improved in her evidence that the third accused was there inside the house at the time when she came. But she had a different case before the police that the third accused came along with the child of the first accused from outside towards the house when she ran towards the house and she joined her also. So it is very difficult to believe the evidence of this witness on the question of the third accused being inside the house when the deceased set flame to herself with a view to commit suicide and also to infer that she did not do anything to help her as observed by the court below in the judgment.
25. PW2 is the doctor, who examined the deceased on 4.9.2002 and detected her second pregnancy and she had proved Ext.P2 prescription given by her. She had also stated that at that time the first accused also accompanied her. Further she had also stated that on 19.9.2002, the deceased came but she was in the operation theater and so she told her staff to give some cough syrup and she came in the early morning of that day. She did not personally examine her on that day and she could not say as to whether her husband also accompanied her on the second occasion. In the cross examination, she had stated that during pregnancy, some woman may have depression. If it is unwanted pregnancy, the depression will be more. But she had added that the deceased did not want termination of pregnancy. So her evidence is also not helpful to prove the mental status of the deceased at the time when she came there on the second occasion. Further she had also no case that the deceased was having any grievance at the time when she came along with her husband on 4.9.2002, when the second pregnancy was confirmed. But her evidence also will go to show that some woman may have depression at the time of pregnancy and if it is an unwanted pregnancy, the depression will be more.
26. PW3 is the brother of the deceased, who gave Ext.P3 statement, on the basis of which the crime was registered. He had no direct knowledge about the incident. When he came to know about the incident, he came to the house and then went to the hospital and thereafter gave statement to the police, on the basis of which, the case was registered. His case was that at the time of marriage 25 sovereigns of gold ornaments and cash worth Rs.50,000/- was given and after the marriage she was residing with her husband in their house. He had also stated that for one month after the marriage, her marital life was happy and thereafter it was miserable and she was being harassed by the father, mother and brother of the first accused, who were arrayed as accused 2 to 4 and they used to harass her both physically and mentally. He had also stated that he used to saw the deceased after one month of the marriage. Whenever she came home, at that time she used to tell that accused 2 to 4 used to tell that if Basheer had married any other lady he would have got more dowry and Basheer also used to tell the same to her. He had also stated that on one or two occasions, the first accused had beaten the deceased from their house as well. But he did not mention the reason for the same. He had further stated that when the deceased told about the same, he along with his paternal uncle's son and mother went to the house of the accused after six months of the marriage and apprised of the difficulties of the deceased and thereafter for some time the same was not repeated and she became pregnant and she was taken to their house during the 7th month and after delivery, she was taken back after three months of delivery with the child and even thereafter, according to PW3, the ill treatment continued by all the accused and the deceased was tolerating all these things and living with them considering their financial difficulties in the house. He had also stated that on account of the ill treatment met by her alleging that the amount and gold ornaments were less, she committed suicide. He had further stated that whatever written in Ext.P3 are correct. He had further stated that he had given Rs.50,000/- which they received in connection with the marriage of their brother and there is no document to prove this fact. The marriage of his brother was conducted 29 days after the marriage of the deceased. He had further stated that he did not make any complaint to the juma ath or to any authorities about the ill treatment met by his sister in the house of the accused persons and he filed complaints to several persons only after her death. He had also stated that he did not make any attempt with the juma ath officials to interfere in the matter. He had also deposed that the deceased was three months pregnant and the first accused insisted for abortion and while they were returning from the hospital, they quarreled on this and this was so stated by the persons, who were present in the house of the accused, at the time when they reached the house on hearing the death of the deceased. But this was not stated to anyone either by the deceased or by the present witnesses. None were examined to prove this fact as well. In fact, the evidence of PW3 will go to show that they were not aware of the second pregnancy till they reached the house after hearing the death. So this is an improvement made by him at the time of evidence. He had also stated that one month prior to the death, he had come to their house and he along with PW5, the mother of the deceased, went to the house of the accused to see Shamla two or three days prior to the death. Even at that time, she did not disclose about the pregnancy. So the allegation that she was harassed by the first accused by insisting for abortion as stated by him appears to be unbelievable especially when she did not even tell them about the second pregnancy, which is quite abnormal in the case of women becoming pregnant not disclosing the facts to her own mother if she was really interested in that pregnancy or she was not worried about the pregnancy at that time. Even in Ext.P3 this witness had not stated that she died on account of the ill treatment met by her both physically and mentally and also due to the pressure exerted on her by the first accused to abort the second pregnancy. Further he had also not mentioned in Ext.P3 that the first accused had demanded further dowry or he had told him that the dowry given is not sufficient though he had stated so before the court. He did not say that he had gone to the house of the accused to see the deceased two or three days prior to the death as well. So, it is clear from this that he is trying to embellish his versions before court so as to appear that it is a case of dowry death.
27. PW4 is the first cousin of the deceased and PW3.
He was examined to prove that Rs.50,000/- cash and 25 sovereigns of gold ornaments were given at the time of marriage and also to prove that the deceased used to say about her difficulties in the house of the accused when she used to come to their house. He had stated that the deceased used to say whenever she came to his house that all the accused persons used to harass her stating that dowry given is not sufficient. But when he wanted to interfere, she told that if they interfere, it will be difficult to her to live there. He had also stated that he along with the mother of the deceased and brother went to the house of the accused to enquire about the same earlier. Thereafter he had never interfered in the matter. He had no case that the deceased died due to harassment met by her at the hands of the accused. But only when suggestive question was asked to the reason for the same, he had stated that the accused were responsible for the death. Several statements stated by him before the court were not stated when he was questioned by the police and he had not made any complaint about non recording of the things mentioned when he was questioned. He also had a case that the Dy.S.P, who conducted the investigation had behaved badly with them when they went for requesting for proper investigation. It is also stated by him that they have formed an action council to enquire about the death of the deceased properly and made complaints to several authorities including the Chief Minister in this regard. He had further stated that he did not mention all things known to him when he was questioned at the time of inquest. He had not stated before the police that Shamla told him that if he made any complaint, her position will be bad in the house of the accused. He had further stated that he had only suspicion regarding the death of the deceased at the time when he was questioned by the police. He had also not stated as to when the deceased last told about the alleged ill treatment. He had no case that the accused demanded more dowry and on that basis she was ill treated as well. So it is not safe to rely on his evidence to prove the ill treatment or that was soon before the death and the ill treatment continued even thereafter
28. PW5 is the mother of the deceased. She had also in a way corroborated with the evidence of PWs 3 and 4 on the question of deceased telling about her experience in the house of the deceased. She had further stated that ] U ] U r V. ] V U V ] ] . So she also did not treat the instances narrated by her daughter so seriously as she felt that it was only normal things happening in all the houses. Though she had stated before the court that the deceased had told her that she will somehow manage to live there and she left the house, she did not state to the police that the deceased was beaten by the accused persons. She had also stated that she did not state to the police that the deceased had told that all were married and she was also given in marriage. It is also seen from the evidence that the deceased was given in marriage at the time when she was only 19 years. She had also stated that ] ] ] ] U . V U ] ÿ ] U ] r] ] r] ] . She also did not state as to when the deceased had last told about the alleged ill treatment. She had also no case that the accused have demanded more dowry and that was disclosed by the deceased to them. She had also improved her case before the court than what was stated by her before the police. She had no consistent case regarding the manner in which the deceased was ill treated by the accused persons and also what is the nature of the ill treatment met by her.
29. PW6 is the sister of the deceased. She was examined to prove that the deceased used to come to her house frequently and used to share her difficulties met by her in their house. She had further stated that she came there last three months prior to the death and even at that time the deceased had stated that father and mother of the first accused always used to ill treat her and the 4th accused had misbehaved with her when the first accused was not in the house. She had no particular complaint about the first accused with her. Further she never told that the 4th accused had misbehaved with her when the first accused was absent in the house to anyone including her mother. She had also stated that the accused persons used to ill treat her stating that the amount of Rs.50,000/- and 25 sovereigns of gold ornaments given were not sufficient. She had also no case that the accused have made any complaint of making more demand. She had further stated that the deceased had come to her house two or three times after her marriage. She had further stated that on the first occasion, the deceased had come to her house along with her husband. Thereafter, the first accused did not come. She had further stated that the deceased used to come along with mother, sister-in-law and sister. She came last during June and at that time the mother and her younger sister were also present. She wept by stating about the ill treatment met by the deceased in the house of the accused. She had stated that she did not state these things to her husband and she did not try to interfere in the matter. They did not make any complaint about the same to the mosque committee. She had further stated that if the deceased had not died, she would not have disclosed these facts to anyone. Her evidence will also go to show that she is now trying to improve her version before the court and it is not safe to rely on her evidence to come to the conclusion that the accused have ill treated the deceased as claimed by the prosecution.
30. A reading of the evidence of PWs 3 to 6, who are the relatives of the deceased will go to show that they stated about the version of ill treatment alleged to have stated by the deceased to them. Further it will be seen from the evidence of PW3 that once they interfered and thereafter there was some change. Though they had stated that this continued even thereafter, they did not interfere, such conduct of the family members appears to be abnormal especially in a case where she was said to have persistently making such allegations and even wept on some occasions by stating these facts. Except vaguely stating that they had ill treated her stating that the amount and gold ornaments given is not sufficient, they have not stated about any specific conduct with date or so or any specific demand for dowry. None of them have a case that any of the accused had made any demand for more dowry. Further they did not speak about the time at which or the duration of making such statement and the death as well. Unless it is proved by the prosecution that the demand or ill treatment in connection with the demand for dowry was made soon before the death which resulted in her committing suicide, it cannot be said that the prosecution has proved that the death was due to the ill treatment met by her soon before the death which is the primary ingredient to be proved by the prosecution so as to attract the offence under Section 304 B of the Indian Penal Code. Mere vague statements of ill treatment without its details is not sufficient to attract the ingredients of ill treatment in connection with demand for dowry. If there is time lag between the alleged statement given by the deceased to the relatives and the death, then it cannot be said unless it is proved by the prosecution that the time lag is not sufficient to change the mind of the deceased so as to prompt her to commit suicide on account of such ill treatment, they have proved the ill treatment soon before her death. Further it is seen from the evidence that on 4.9.2002 both the first accused and the deceased went to PW2 for consultation and at that time it was revealed that she was pregnant by three months. None of the relatives who had deposed before the court claimed that the deceased used to disclose all the things to them were not even aware of the second pregnancy till her death. If really the first accused had quarreled with her regarding the second pregnancy and insisted for abortion, then this would have been disclosed to her mother and sister, who were examined as PWs 5 and 6. But this was not happened. Further in the evidence of PW2, the Doctor, also stated that neither the deceased nor her husband had wanted her to terminate the pregnancy. So that falsifies the case of the prosecution attempted to be proved though PWs 3 to 6 that on the morning of the incident, there was some quarrel between the deceased and the first accused regarding the second pregnancy and that prompted her to commit suicide. These aspects were not properly appreciated by the court below before coming to the conclusion that the prosecution has proved beyond reasonable doubt that the deceased was subjected to cruelty soon before her death any demand for dowry which prompted her to commit suicide so as to attract the offence punishable under Section 304 B of the Indian Penal Code as against the accused persons.
31. It is settled law that mere vague allegations of cruelty alone is not sufficient to convict the accused persons for the offence under Section 304 B of the Indian Penal Code unless specific instances of cruelty, demand for dowry, demand and cruelty subsisted continuously soon before the incident etc have to be proved by the prosecution, which they have failed to discharge in this case. In all the cases discussed above, there is evidence to show that the ill treatment continued in spite of intervention of the family members and that intervention happened two or three days prior to the death in an abnormal way that there is no time gap between the last instance and the act of commission of suicide by the deceased. It was in those circumstances, the Honourable Supreme Court has held that any straight jacket formula can be given regarding the term soon before death occurring in Section 304 B of the Indian Penal Code and Section 113 B of the Evidence Act, which deals with offence of dowry death and the presumption that can be drawn by the court if the ingredients mentioned there are proved. Further in all these decisions it was also mentioned that if the time gap is so wide and it has become stale, then it cannot be stated that the prosecution has proved beyond reasonable doubt that the deceased was subjected to cruelty soon before the death which was sufficient to attract the offence under Section 304 B of the Indian Penal Code. So under the circumstances and also in view of the discussions made above, the finding of the court below that the prosecution has proved beyond reasonable doubt that the 4th ingredient which is the most important ingredient so as to attract the offence under Section 304 of the Indian Penal Code against the accused so as to convict the appellants for the offence under Section 304 B of the Indian Penal Code is unsustainable in law and the same is liable to be set aside. Further, the evidence is not sufficient even to alter the offence to one under Section 306 or 498 A of the Indian Penal Code as well as the evidence is not sufficient to prove that the deceased was subjected to cruelty as defined under those sections as well.
32. It is true that if evidence adduced is clinching and the court below has appreciated the evidence properly, then the appellate court will be slow in interfering the finding of the court below unless it is perverse. Further if two view are possible on the basis of the same set of facts and evidence and one such view is favourable for the accused, then that benefit will be given to the accused. So under the circumstances the accused are entitled to get the benefit of doubt and entitled to get acquittal of the charge levelled against them giving them the benefit of doubt. So the finding of the court below that they have committed the offence punishable under Section 304 B read with Section 34 of the Indian Penal Code is unsustainable in law and the same is liable to be set aside and the accused are entitled to get acquittal of the charge levelled against them giving them the benefit of doubt. Point No.1 is answered accordingly.
33. Point No.2: In view of my findings on Point No.1, the sentence imposed by the court below is illegal and the same is liable to be set aside. Point No.2 is answered accordingly.
In the result, the appellants succeed and the appeal is allowed. The order of conviction and sentence passed by the court below against the appellants under Section 304 B read with Section 34 of the Indian Penal Code are set aside and the appellants are acquitted of the charge levelled against them giving them the benefit of doubt. They are set at liberty. The bail bond executed by them will stand cancelled.
Office is directed to communicate this judgment to the court below at the earliest.
SD/-
JUSTICE K.RAMAKRISHAN cl /true copy/ P.S to Judge