R.MALA,J This appeal is directed against the verdict of conviction in S.C.No.135/2006 whereby the Appellant/Accused was convicted for dowry harassment U/s.498(A) IPC and U/s.302 IPC and sentencing him to undergo 3 years RI and life imprisonment respectively and also imposing fine.
2. Briefly stated case of prosecution is as follows:-
Deceased Vijaya @ Jeeva is the daughter of PW1-Mahalingam and PW2- Soundaravalli. Accused-Raja and deceased Vijaya got married and their marriage was love marriage. Initially, marriage was not to the liking of the parents of deceased Vijaya and later both the families reconciled. Accused and deceased were living happily for about one year. PW1 gave 4 sovereign jewels to his daughter Vijaya. While accused and deceased were living together, accused was frequently demanding money and jewels and subjected her to dowry harassment. About few days prior to the occurrence, accused was demanding TVS-50 vehicle. Accused was also allegedly proclaiming that if TVS-50 is not given to him, he would kill his wife and marry another woman. Demanding TVS-50, accused had beaten Vijaya and Vijaya had gone to her parents house. PWs.1 and 2 pacified Vijaya and sent her back stating that they would get TVS-50 for the accused within a week.
3. On 04.4.2003 Vijaya died of burn injuries. Accused also sustained burn injuries in his arms. PWs.4 and 5 [Selvaraj and Jegannathan] saw the accused coming out with burn injuries. Accused did not say anything about the burn injuries sustained by them. PWs.1 and 2 learnt about death of their daughter and went to the house of accused at 6.30 P.M. and saw body of Vijaya with burn injuries. Since, it was late in the day, PW1 went to Kabisthalam Police Station on 05.4.2003 and lodged Ex.P1-Complaint, on the basis of which, a case of suspicious death was registered in Cr. No.130/2003 U/s.174 Cr.P.C.[Ex.P7]. PW4- Inspector of Police arrested the accused who was taking treatment in the hospital for his burn injuries. PW15-Dy. Superintendent of Police, Bapanasam had taken up investigation. Scene of occurrence was inspected and PW15-Dy. Superintendent of Police prepared Ex.P2-Observation Mahazar, Exs.P9 and P10- Rough Plans. MO10-Kerosene tin was seized under Ex.P3-Seizure Mahazar.
4. Since death was suspicious death of a married woman within 7 years of marriage, RDO, Kumbakonam had taken up investigation. RDO had conducted enquiry and Inquest. Ex.P8 is the report of RDO. After Inquest, body was sent to autopsy. PW10 Dr.Parthasarathy has conducted autopsy and issued Ex.P6-post mortem certificate opining that the death was due to burn injuries. On the basis of report of RDO, case was altered from Sec.174 Cr.P.C., to Sec.302 IPC under Ex.P11-Alteration Report. After examination of witnesses and on completion of investigation, PW15-DSP filed final report U/s.498-A and 302 IPC.
5. To substantiate the Charges against the accused in the trial court, prosecution examined PWs.1 to 15 and Exs.P1 to 11 and MOs.1 and 2 were marked. Accused was questioned U/s.313 Cr.P.C. about the incriminating evidence and circumstance. Accused denied all of them and pleaded not guilty and stated that a false case is foisted against him.
6. Upon analysis of evidence and on the evidence of PWs.1 and 2, learned Sessions Judge held that prosecution has established that deceased was subjected to dowry harassment. Learned Sessions Judge took the view that accused has no acceptable explanation for the death of his wife. Learned Sessions Judge also held that accused had not satisfactorily explained the burn injuries sustained by him and on those findings, convicted the appellant/accused U/s.498-A and 302 IPC and sentenced as aforesaid.
7. The learned counsel for the appellant submitted that absolutely there is no evidence as to demand of dowry and evidence of PWs.1 to 3 is unacceptable. The learned counsel would further submit that the accused himself had sustained burn injuries would clearly show that the accused went to the rescue of his wife but sustained burn injuries due to bursting of a stove. Taking us through Ex.P.1 - Complaint, the learned counsel submitted that there is an inordinate delay in lodging the complaint and registration of the F.I.R. and serious doubts has arisen as to the prosecution version, the benefit of doubt should be given to the accused.
8. Countering the arguments, the learned Additional Public Prosecutor submitted that the occurrence being happened in the house of the accused, it is for the accused to explain the death of the deceased and that the accused has not come out with proper explanation as to the death of his wife. Taking us through the evidence of PWs.1 to 3, the learned Additional Public Prosecutor would further submit that the evidence of PWs.1 to 3 would show that the demand of dowry has been proved by their evidence and that, since the death was due to burn injuries, in the absence of any explanation by the accused, the learned Sessions Judge rightly convicted the appellant/accused under
Section 302 IPC and the conviction warrants no interference.
9. The first limb of argument advanced by the learned counsel for the appellant is P.Ws.1 to 3 were examined to prove the demand of dowry, but, there is no independent witness has been examined and hence there is no iota of evidence for incriminating the accused under
Section 498(A) IPC. While perusing the evidence of P.Ws.1 to 3, it is true that the marriage between accused Raja and deceased Vijaya @ Jeeva is love marriage. The deceased left her parental home and gone to the accused home and then panchayatdars performed their marriage. P.Ws.1 and 2 have not given consent for marriage. After the marriage, they were pacified and during Pongal season, they provided "Pongal Seervarisai" and Jewels and other utensils and the same has been fortified by P.Ws.1 to 3. There is no reason for discarding the evidence of P.Ws.1 and 2, who are none other than parents of the deceased. Even they were facing the lengthy cross examination, nothing against them has been culled out.
10. P.W.3-Kaliaperumal has deposed in his evidence that after the accused Raja demanding dowry, the deceased Vijaya came to his house and intimated that the accused has demanded money and he compromised both P.W.1 and the accused and settled the matter. While considering the evidence of P.W.3-Kaliaperumal, it is clear that the appellant/accused whenever demanded money, that demand had been met out by P.Ws.1 and P.W.2. After the accused joined with his parents-in- law, for taking licence, Rs.1,500/- paid by P.Ws.1 and 2 to the appellant/accused. Though he is Uncle of P.W.1, his evidence is cogent, natural, trustworthy and reliable.
11. Prior to the incident, appellant/accused has demanded TVS 50. Since P.Ws.1 and 2 were not able to fulfil the demand of the accused, the appellant/accused tortured his wife. So, the evidence of P.Ws.1 to 3 clearly proved that before the incident the accused has demanded money for purchasing TVS 50. Hence, we confirm the findings of the learned trial Judged regarding the conviction and sentence imposed on the appellant/accused for the offence under
Section 498(A) IPC.
12. Now, we have to decide whether the death of the deceased is homicidal or accidental. It is pertinent to note that P.W.10-Dr.Parthasarathy has conducted autopsy and issued Ex.P6 Post mortem certificate and opined that the deceased died 24-36 prior to postmortem due to extensive burns and shock which are antemortem in nature. So, the death of the deceased is due to burn injuries sustained by the deceased. Here, P.Ws.1 to 3 are not eye witnesses. Their house is adjacent to the house of the accused. P.W.4-Selvaraj and P.W.5- Jegannathan have deposed before the trial Court that when they were at 'TV Mandram', they heard the news that the house of the accused was burning and they rushed to the place of occurrence and at that time the accused came out of his house with burn injuries and partly burnt lungi; immediately they entered the house and saw that the deceased has flamed with fire and they were not able to put off the fire. They further deposed that the deceased wandering here and there and fallen down and then only, they poured water and put off the fire, but she died.
13. While considering the cross examination of P.Ws.4 and 5 nothing against them has been culled out. Hence, their evidence is natural, cogent, trustworthy and reliable. Even though, there is no witness as to say that the accused/appellant has poured kerosene and set fire on her, P.Ws.4 and 5 witnessed that the accused came out of his house with burn injuries and partly burnt lungi. The deceased sustained extensive burn injuries and wandering here and there and fallen down and died.
14. The learned counsel for the appellant would submit that there is a delay in preferring the complaint. But, while considering Ex.P1, we find that there is no delay in preferring the complaint. The occurrence had taken place on 04.04.2003 at 4.30 P.M. P.Ws.1 and 2 are the residents of half kilometre away from the place of occurrence. They received the information and reached the place of occurrence and they have not seen any inmates of the appellant/accused house. Because of non availability of bus facility, P.W.1 gone to the Police Station on the very next day i.e. on 05.4.2003 at 7.30 A.M. and lodged Ex.P1-Complaint, on the basis of which, a case of suspicious death was registered in Cr. No.130/2003 U/s.174 Cr.P.C.[Ex.P7]. Hence, we are of the considered view that there was no delay in preferring the complaint and the short delay has also been properly explained by the prosecution.
15. Admittedly, there are no eye-witnesses. Evidence of neighbours PWs.4 and 5 is only to the effect that they heard the noise and went to the house of the accused and saw the deceased burning. They also saw the accused with burn injuries. To substantiate the homicidal death, the only circumstance relied upon by the prosecution is that the accused was the inmate of the house. Evidence adduced by the prosecution do not form a complete chain establishing the guilt of the accused. There is nothing to establish that the accused intentionally poured kerosene and set ablaze to his wife. Upon analysis of evidence on record, we are of the view that the conviction of the appellant- accused U/s.302 IPC cannot be sustained.
16. While considering his subsequent conduct of the accused, since accused came out of the house with burn injuries, he rushed to Kumbakonam Government Hospital, where, P.W.9-Dr.Arulraj, admitted the appellant/accused and gave treatment and issued Ex.P5-Accident Register Copy. In that, the accused stated before P.W.9-Dr.Arulraj, that on 04.04.2003 at about 4.30 P.M., when he has set fire on the sugarcane leaves, he sustained injuries which is a false statement given by the accused before P.W.9 Doctor. Hence, the argument of the learned appellant counsel that when the appellant/accused tried to put off fire on his wife, he also has sustained injuries is an unacceptable one. Moreover a suggestion was posed to him that as to the possibility of sustaining burn injury whether when a person has attempted to rescue a person from fire, P.W.9- Dr.Arulraj accepted the suggestion. But, while considering Ex.P5-A.R.Copy of the accused, the appellant/accused has given a different version before P.W.9 Doctor, who treated him.
17. Though, it is not the case of homicidal death, we are convinced that the ingredients of Sec.304 (B) IPC are satisfied. As discussed earlier, by cogent evidence, prosecution has established that soon before the death, deceased Jeeva was subjected to cruelty in connection with the demand for dowry and TVS-50 vehicle. Therefore, though the case of homicidal death is not made out, prosecution can successfully canvassed the conviction U/s.304 (B) IPC.
18. When a question arises whether a person has committed the offence of a dowry death of a woman what is necessary is that it should be shown that soon before her unnatural death, which took place within seven years of the marriage, the deceased had been subjected to cruelty or harassment for or in connection with the demand of dowry. If that is shown. the court shall presume that such a person has caused the dowry death. It is imperative, for invoking the legal presumption,to prove that "soon before her death" she was subjected to such cruelty or harassment.
19.
Section 113(B) of Evidence Act creates presumption of dowry death.
Section 113(B) of Evidence Act reads as under:
"113-B. 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 had 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."
As already discussed in paragraph No.9, we are of the considered opinion that the appellant/accused demanded dowry. When it is the duty of the appellant/accused to prove that he has not committed such offence. But, here no evidence has been let in by him.
20. We have to consider the conduct of the appellant/accused. If really, he has not set fire on his wife, he would have intimated the incident to his in- laws through a messenger or inform to her parents. But, after the occurrence, the appellant/accused ran away from the place of occurrence and admitted in hospital and there he put forth a different story. It is pertinent to note that during the enquiry of Revenue Divisional Officer, no one related to the family of the accused was there except the mother of the appellant/accused. During the enquiry of R.D.O., the witnesses stated before him that already one incident was happened that the accused had poured kerosene on his wife and attempted to set fire on her, that has been prevented and the accused was warned.
21. Even though a story has been put forth that a stove has been burst and the deceased sustained burn injuries, it has not been proved by the defence. On a perusal of Ex.P2, Observation Mahazar and Ex.P10, Rough Plan, it has not mentioned that any part of burst stove has been available at the scene of occurrence. As per Ex.P10, burners are available, one is inside the house and another is extreme north east of the out side of the house. But the occurrence has been taken place at south east of the house. In the place of occurrence, M.O1 kerosene tin has been seized under Ex,P3-Mahazar. So, from the Observation Mahazar and Rough Plan, it has clearly mentioned that smoke remains in the place of occurrence. So, the story put forth by the defence that the deceased sustained injury due to the stove burst does not merit acceptance.
22. The learned counsel would contend that if the Court feels that the accused is guilty, it would not come under
Section 302 IPC and it would come only under
Section 304(B) IPC and relied upon the decision reported in (2009)1 Supreme Court Cases (Cri) 317 (State of Rajasthan Vs. Jaggu Ram). The relevant portion is as follows:
"The ingredients necessary for the application of
Section 304-B IPC are:
1.that the death of a woman has been caused by burns or bodily injury or occurs otherwise than under normal circumstances;
2.that such death has been caused or has occurred within seven years of her marriage; and
3.that soon before her death the woman was subjected to cruelty or harassment by her husband or any relative of her husband in connection with any demand for dowry.
"
Section 113-B of the Evidence Act lays down that if soon before her death a woman is subjected to cruelty or harassment for, or in connection with any demand for dowry by the person who is accused of causing her death then the court shall presume that such person has caused the dowry death. The presumption under
Section 113-B is a presumption of law and once the prosecution establishes the essential ingredients mentioned therein it becomes the duty of the court to raise a presumption that the accused caused the dowry death."
23. Considering the above said citation, the following ingredients necessary for the application of
Section 304-B IPC are established:
(i) the marriage of the accused and deceased has been taken place on 07.07.2000, but the death of the deceased has occurred on 04.04.2003, within seven years of her marriage; and
(ii) as per the evidence of P.Ws.1 to 3, the appellant/accused demanded dowry from the deceased and since she was not able to fulfill his demand and hence she was subjected to cruelty and harassment by her husband/appellant.
(iii) as per the evidence of P.Ws.4 and 5, the death of the woman has been caused by burn injuries occurred otherwise than under normal circumstances , that has been fortified by P.W.9-Doctor and Ex.P6-Postmortem certificatewe are of the view that the ingredients of Section304(B) IPC has been made out in this case;
Hence, the ratio above citation is squarely applicable to the facts of this case.
24. As narrated above, as per the evidence of P.Ws.4 and 5, they have witnessed the appellant/accused, who came out of his house with burn injuries and partly burnt lungi. Since the deceased was flamed with fire, they were not able to put off the same. When the deceased wandering here and there and fallen down, then only they poured water on her, but she died. In Ex.P5- A.R.Copy of accused, the accused stated before P.W.9-Doctor that while he burning the sugarcane leaves, he sustained burn injuries. There is no delay in preferring the complaint.
25. Upon analysis of evidence, it is clearly proved that since the deceased was not brought TVS 50 from her parental home, the appellant/accused got wild and he poured kerosene and set fire on her, which resulted to the death of his wife Vijaya @ Jeeva. So, we are of the opinion that the accused is guilty under
Section 304(B) IPC instead of 302 IPC.
26. In the result, the conviction of the appellant-accused U/s.302 IPC in S.C.No.135/2006 dated 18.12.2006 on the file of Principal Sessions Judge, Thanjavur is modified. Appellant-accused is convicted U/s.304 (B) IPC and sentenced to undergo 7 years R.I. Conviction of the appellant-accused U/s.498(A) IPC and the sentence and fine of Rs.5000/- imposed on him stand confirmed and this appeal is partly allowed.
arul To
1.The principal Sessions Judge, Tanjore
2.The learned District Munsif-cum-
Judicial Magistrate, Bapanasam.
3.The Inspector of Police, Kabisthalam P.S.
4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.