This Criminal Appeal is directed against the judgment made in S.C.No.326 of 2007, dated 12.06.2009 on the file of the Sessions Judge, Mahila Court, Tirunelveli.
2.The case of the prosecution is that the deceased Sahayamary is the second wife of the accused and he married her 10 months before the date of the alleged occurrence and the accused harassed the deceased demanding a sum of Rs.2,000/- towards dowry arrears, Motor Cycle and Pongal Gift and insisting the deceased to earn at least Rs.50/- per day by rolling Beedi and that on 06.12.2006 at 11 am, there was a quarrel between them, while the deceased was cooking and she set fire by using kerosene from the kerosene stove and using the flame from the gas stove in her Saree and while she was undergoing treatment for her burn injuries, she died in the hospital on 14.12.2006. The Inspector of Police attached to Vickramasingapuram, Tirunelveli District, has fined a final report against the accused by examining the witnesses. http://www.judis.nic.in 3
3.In the trial court, 22 witnesses were examined and 18 Exhibits and 3 material objects were marked. When the accused was questioned about the incriminating circumstances, he denied the same. On the side of the accused, no witness was examined and no document was produced. The trial court convicted the appellant/accused for the offence under
Section 304(B) IPC and sentenced to undergo RI for 7 years and also convicted under Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act and sentenced to undergo RI for 3 years and to pay a fine of Rs. 5,000/-, in default to undergo simple imprisonment for six months. Aggrieved by the judgment passed by the trial court, the appellants/accused are before this court.
4.The learned counsel for the appellant/accused submitted that there was no complaint against the accused regarding demand of dowry when the deceased was alive; that the marriage between the deceased and the accused is not a valid one under law; that the Deputy Superintendent of Police (PW21) has accepted in his evidence that he did not enquire about the validity of the marriage of the deceased and he did not recover the marriage invitation or any other documents to speak about the marriage; that the case http://www.judis.nic.in 4 was not referred to the Revenue Divisional Officer concerned for enquiry under law considering the nature and circumstances of the case; that the deceased told to the Doctor (PW7) that she sustained burn injuries due to bust of stove and there was no evidence showing that there was harassment for dowry soon before the death of the deceased and on account of the said harassment only, she had committed suicide and in this case, the Investigating Officer has not recovered the gas stove and another stove, which material objects in this case and the deceased has stated in the dying declaration (Ex.P7) that there was a quarrel between the accused and herself with regard to rolling of Beedi by the deceased at 9.45 am on 06.12.2016 and she set fire herself by using the kerosene at 10 am, which clearly shows that there was no demand of dowry soon before the fateful incident. In view of the above circumstances, the appellant/accused is entitled to acquittal and prays that the criminal appeal has to be allowed.
5.On the other hand, the learned Government Advocate (Criminal side) appearing for the respondent/State submitted that trial court appreciated the evidence in a proper manner and believed the evidence of the eye witnesses and having regard to the http://www.judis.nic.in 5 nature of the offences, convicted the appellant and passed proper sentence, which do not require any interference by this court and the accused is not entitled for acquittal and prays that the criminal appeal may be dismissed.
7.Heard both sides and perused the materials available on record.
8.The main contention raised on the side of the appellant/accused is that the marriage between the deceased and the accused is not a valid one and the deceased did not like the marriage with the accused considering his old age and the accused will not be the husband of the deceased under law and a person not a husband or not a relative of the husband may not be punished for the offences under
Section 304(B) IPC and there was no demand of dowry by the accused soon before the death of the deceased and the deceased did not set fire due to the alleged harassment by the accused demanding dowry as alleged by the prosecution and prays that the accused is entitled to acquittal. http://www.judis.nic.in 6
9.PW2 and PW3 are the parents of the deceased. PW1 and PW4 are the brothers of the deceased. The deceased gave Ex.P1 complaint. The deceased in Ex.P1 complaint and PW1 to PW4 during their evidence stated that during the year 2006, the marriage between the deceased and the accused was solemnised and for that marriage, they gave three sovereign of jewels and Rs. 10,000/- as cash towards dowry and the deceased is the second wife of the accused and after marriage, the accused demanded dowry from the deceased and the deceased told PW1 to PW4 that the accused subjected her to cruelty by compelling her to roll Beedi for Rs.50/- per day and further demanded Rs.2,000/- and they agreed to give Rs.2,000/- and sent the deceased to her matrimonial home and likewise, the accused demanded dowry for several occasions and due to the demand of dowry, on 06.12.2005 she poured kerosene on her and set fire and then they took the deceased to the Hospital and in-spite of treatment, she died.
10.PW1 to PW4 have categorically stated that after the marriage, the accused demanded dowry. For the demand of dowry, no complaint given by the deceased. It is also admitted by PW1 during his cross examination. PW1 to PW4 are the close relatives http://www.judis.nic.in 7 of the deceased. PW5 and PW6 are the neighbours of the deceased. PW5 deposed that the deceased took her husband and compelled her to roll Beedi and demanded dowry and on the date of occurrence, she heard “fhg;ghj;Jq;f fhg;ghj;Jq;f” and then she and her husband went and saw that the deceased with fire and they gave first aid and asked the deceased, why she set fire and for that, the deceased reported that her husband compelled her to roll Beedi and due to it, she set fire. PW5 has not deposed that on the date of occurrence, the accused demanded dowry, but PW5 stated that the deceased told her that the accused compelled the deceased to roll Beedi.
11.PW6 deposed that on the date of the occurrence, she went to the house of the deceased and the deceased asked her to take to the hospital and the deceased told him that her husband compelled her to earn money daily.
12.PW6 has not stated during her evidence that on the date of the occurrence, the deceased told her that the deceased set fire only due to the demand of dowry by her husband. http://www.judis.nic.in 8
13.It is an admitted fact that the deceased was the second wife of the accused. Further, PW1 to PW4 during their cross examination admitted that at the time of second marriage, the first wife of the accused was alive.
14.The contention of the learned counsel appearing for the appellant/accused is that the marriage between the accused and the deceased is not a valid one and the accused is not the husband of the deceased and there is no valid marriage and hence,
Section 304(B) IPC exposes the husband of the woman or any relative of her husband for the commission of the offence for dowry death. This
Section 304(B) will not at all been attracted since the marriage is not valid and the appellant will not be the husband of the deceased under law and as per the several identical cases of this court, a person not a husband or not a relative of the husband may not be prosecuted for the alleged offence under
Section 304(B) IPC and the question of demand of dowry will not at all arise since it will not come under the definition of “Dowry” as provided under Section 2 of the Dowry Prohibition Act. It should be given or agreed to be given at the time of marriage or before marriage or at any time after marriage. In this case, there is no valid marriage at http://www.judis.nic.in 9 all so the question of demand of dowry will not at all arise and there must be material to show that soon before her death, the victim was subjected her to cruelty or harassment in relation to dowry demand and there is no material at all for the same except the Dying Declaration, which is also not in support of dowry demand.
15.In this case, to prove the marriage, no document was filed. At the time of alleged marriage between the accused and the deceased the first wife is alive. It is not proved on the side of the prosecution that the marriage between the accused and the first wife was dissolved. But no document was filed on the side of the prosecution to prove that the marriage between the accused and the deceased is a valid one.
16.
Section 304(B) IPC exposes the husband of the woman or any relative of her husband for the commission of the offence of dowry demand. As per law, the accused is not the husband of the deceased. Further, the marriage between the accused and the deceased is not a valid one and hence, it is held that a person not a husband or not a relative of the husband may not be prosecuted for the offence under
Section 304(B) IPC.
http://www.judis.nic.in 10
17.Further, in this case, there is no valid marriage and hence, the question of demand of dowry does not arise. For the offence under
Section 304(B) IPC, it is to be proved that soon before the death of the deceased, she was subjected to cruelty or harassment in respect to dowry demand. On perusal of the cross examination of PW1 to PW4 and the Investigating Officer PW20, there was no direct eye witness on the prosecution side to prove that soon before the death of the deceased, there was a demand of dowry by the accused. Further, in the case is dowry demand, it has to be sent to the Revenue Authorities for enquiry. Hence, the offence under
Section 304(B) IPC is not made out.
18..Further, in this case, PW1 to PW4 categorically stated that the deceased subjected her to cruelty by way of compelling her to roll Beedi. After the occurrence, the deceased was taken at first to the Ambai Government Hospital and then, she was referred to Tirunelveli Medical College Hospital for further treatment and in the Tirunelveli Medical College Hospital, the deceased gave Dying Declaration and it was recorded by the Judicial Magistrate and the Dying Declaration was marked as Ex.P7.
http://www.judis.nic.in 11
19.On perusal of the Ex.P7 Dying Declaration, it is stated as follows:-
vd; fztUf;Fk; vdf;Fk; 6.12.06-k; jpajp 9.45 kzpf;F gPo Rw;wr; brhy;yp rz;il ele;jJ ehd; 10.00 kzpf;F kz;vz;bza; Cw;wp jP itj;Jf; bfhz;nld; bghk;gisfs; g{r;rhz;o fhl;Lthh;fs; rht[ vd;why; rht; kz;vz;bza; Cw;wp epy; ghh;f;fpnwd; vd;W Twfpwhd; mth; vd;id 2tjhf jpUkzk; bra;J bfhz;lhh; mth; vdf;F Kjy; jhuk;
MFk;. 10>000/- ngrpdhh;fs; 8>000/- bfhLj;jjhh;fs; 2>000/-k; bghq;fy; go bfhz;L te;jhy; th vd;W Twpdhh; mof;fo tujl;rid rz;il elf;Fk; vd;id ,d;W brtpl;oy; moj;Jtpl;lhd;.
20.On careful perusal of Ex.P7, it reveals that quarrel arose between the deceased and the accused only respect of rolling Beedi by the deceased. Further, she has stated that frequently quarrel arose between her and the accused in respect of the demand of dowry. The deceased has not stated that only due to it, she committed suicide. But she has categorically stated that her husband only asked to roll Beedi on 06.12.2006 and hence, she set fire.
21.In view of the above, this court finds that there was no demand of dowry prior to the death of the deceased and the deceased set fire by pouring kerosene only by the accused asking her to roll Beedi. Hence, there was nexus between the accused and the death of the deceased. Hence, the offence under Section http://www.judis.nic.in 12 304(B) IPC and Section 4 of Tamil Nadu Prohibition of Harassment of Women Act were not made out and only the offence under
Section 306 IPC alone is made out. For all the reasons stated above, this court is of the considered view that the appellant/accused is found guilty under
Section 306 IPC and he is liable to be punished for the said offence.
22.In the result, the Criminal Appeal is partly allowed. The punishment imposed on the appellant under
Section 304(B) IPC is modified into 306 IPC and the appellant is directed to undergo 3 years of Rigorous imprisonment for the said offence and also to pay a fine of Rs.5,000/-, in default to undergo 6 months Simple Imprisonment. The period of sentence, if any already undergone by the appellant/accused is set off under Section 428 of Cr.P.C. The appellant, after adjusting the period of imprisonment already undergone, shall undergo imprisonment for the remaining period.
04.06.2019 Index:Yes/No Internet:Yes/No er http://www.judis.nic.in 13 To
1.The Sessions Judge, Mahila Court, Tirunelveli.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 14 T.KRISHNAVALLI,J.
gns/er Pre-Delivery order made in Crl.A.(MD)No.227 of 2009 04.06.2019 http://www.judis.nic.in 15 http://www.judis.nic.in