Next > IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY CRIMINAL APPEAL No.1007 OF 2010 BETWEEN:
Sri. Mahadeva S/o. K. Shivappa, Age 30 years, Upparadoddi Village, Maddur Taluk, Mandya District. …Appellant (By Sri. Harish Kumar H.C. Advocate) AND:
The State of Karnataka by K.R.Puram Police, Bangalore. …Respondent (By Sri. Divakar Maddur, HCGP) **** This Criminal Appeal is filed under Section 374(2) of Cr.P.C praying to set aside the judgment and order of conviction dated:13.08.2010/16.09.2010 passed by the P.O & Addl. Sessions Judge, Fast Track Court -XV, Bangalore in S.C.No.980/2008, convicting the appellant/accused for the offence punishable under Sections 498-A and 304-B of IPC and sentencing him to undergo Rigorous Imprisonment for 10 (ten) years for the offence punishable under Section 304-B of IPC and that he prays that he be acquitted.
This Criminal Appeal coming on for Hearing, this day, the Court delivered the following:
J U D G M E N T The present appellant who is accused in Sessions Case No.980/2008, in the Court of the Additional Sessions Judge, Fast Track Court XV, Bangalore, (hereinafter referred to as `Trial Court’ for brevity), has challenged the impugned judgment of conviction dated 13-08-2010 and order on sentence dated 16-09-2010, convicting him for the offences punishable under Sections 498-A and 304-B of the Indian Penal Code, 1860 (hereinafter referred to as `IPC’ for brevity) and sentencing him to undergo Rigorous Imprisonment for a period of ten years for the offence punishable under Section 304-B IPC, giving a set-off for the period during which the accused was in judicial custody. It is against the said judgment of conviction and order on sentence, the appellant/accused has preferred this appeal.
2. Lower Court records were called and the same are placed before this Court.
3. For the sake of convenience, the parties would be referred to as per their ranks before the Trial Court.
4. The summary of the case of the prosecution before the Trial Court is that, the present appellant who is the accused had married the deceased Smt. Rekha, the sister of PW-1, Muralidhara (CW1), on 13-05-2007. It was a love marriage. After marriage, the couple started living in Andra Hally of Peenya Tigalarapalya in a rented house. At that time, the accused started harassing his wife Rekha mentally and physically and pestering her to bring a sum of `2.00 lakhs, 100 grams of gold jewellery and one motor cycle from her parental house. There after wards, they shifted their residence to Narayanapura, Shanthi Layout within the limits of K.R. Puram Police Station, Bengaluru to a rented house.
There also, the accused continued ill-treating his wife and demanding for valuables to be brought by her from her parental house. Due to the said unbearable cruelty meted to her, the deceased Rekha committed suicide by hanging herself at 9:45 p.m. on 13-05-2008 in her house and thereby the accused has committed the offence punishable under Sections 498-A, 306 and 304-B of IPC read with Sections 3 and 4 of the Dowry Prohibition Act, 1961.
5. The Trial Court framed the charges against the accused for the offences punishable under Sections 498-A, 306, 304-B of IPC. Since the accused pleaded not guilty, in order to prove the allegations made against the accused, the prosecution got examined 14 witnesses from PW-1 to PW-14 and got marked documents from Exhibits P1 to P9(a) and Material Objects from MO1 to MO4.
Neither any witnesses were examined nor any documents were marked as documents from the side of the accused.
6. After hearing both sides, the Trial Court by its impugned judgment, convicted the accused for the offences punishable under Sections 498-A, 304-B IPC and sentenced him accordingly. It is against the said judgment of conviction and order on sentence, the accused has preferred this appeal.
7. Heard the arguments from both side.
8. Perused the materials placed before this Court including the impugned judgment and also Lower Court records,.
9. Learned counsel for the accused in his arguments submitted that the parents of the deceased had hatredness towards the accused because the deceased and the accused married each other out of love, without the permission of the elders and it was not an arranged marriage, as a result, a false complaint has been lodged against the accused.
He also submitted that since the family of the deceased Rekha ill-treated her, she committed suicide. No statement of the neighbours at three places where the accused shifted his residence was recorded by the Investigating Officer.
The learned counsel for the accused also submitted that the prosecution has no answer as to why the complainant did not lodge any complaint when he is said to have been heard about the cruelty meted to the deceased.
Learned counsel also submitted that even if the evidence of the prosecution witnesses are taken at their facial value, still, Section 304-B of IPC would not attract in the circumstances of the case.
Learned counsel also relied upon the judgment of the Hon’ble Apex Court in the case of Baijnath and others Vs. State of Madhya Pradesh, decided on 18-11-2016 reported in A.I.R. 2016 Supreme Court 5313.
10. Learned High Court Government Pleader appearing for respondent-Police in his very brief argument submitted that PW-4, Papanna who was the neighbour of the accused has supported the case of the prosecution, so also, PW-5, Dhananjaya, the brother-in- law of the deceased. Thus, apart from the family members of the deceased, her brother-in-law, and neighbour since have spoken about the harassment meted to the deceased by the accused which was soon before her death, the prosecution has successfully proved the alleged offences against the accused.
11. PW-1, Muralidhara, the elder brother of the deceased Rekha, PW-2, Smt. Vishalamma, the mother of the deceased, PW-3, Dinesh, the maternal uncle of the deceased and PW-5, Dhananjaya, the brother-in-law of the deceased, have all stated that the marriage between the accused and the deceased Rekha was a love marriage for which none of these people attended.
PW-1 has also stated that the said marriage took place on 13-05-2007 in a Temple. According to the aforesaid witnesses, after their marriage, the accused and the deceased started living separately by establishing their house. The evidence of these witnesses on these lines is not denied or disputed from the side of the accused, as such it is an undisputed fact that the deceased Rekha was the wife of the accused having married him on 13-05-2007.
PW-1 in his evidence has stated that for about two months after their marriage, the deceased Rekha was living a happy life with her husband. Thereafter, the accused started assaulting her for trivial reasons. He also used to tell her that had he married any other girl, he would have got sufficient dowry in the form of money, property and other valuables. Alleging so, he was assaulting the deceased which was told by her to this witness over phone.
PW-1 has further stated that when he questioned the accused, i.e. his brother-in-law as to why he was harassing his wife, the accused told him that had he married any other girl, he would have got all the properties, stating so, he demanded for getting a house leased in his favour by paying a sum of `2.00 lakhs. He also demanded for 100 grams of gold for which, this witness replied that he has married his sister on his own choice as such they should not quarrel and lead a happy life, however, he had told the accused that he would do his level best.
PW-1 has further stated that after a month or one and a half months of the above incident, once again, the accused assaulted the deceased Rekha physically and on that occasion, his sister i.e. the deceased Rekha attempted to commit suicide. Her neighbours stopped her from taking such a drastic step on the said night. At that time, this witness along with few persons and some of his people went to her house and advised. She was pregnant at that time. Even then also, the deceased told this witness that the accused was pestering her to get the house at Gayatrinagar leased in his name and 100 grams of gold to be given to him, otherwise, none from the family of the deceased should visit the house.
PW-1 has further stated that this act of accused harassing his wife for valuables to be brought by her continued several times and when ever his sister used to visit them on Sundays, she used to reveal about the cruelty she had been subjected to by her husband and on all those occasions, this witness and his family were consoling her and asking her to have some patience and sent her back. That being the case, on the night of the death of his sister Rekha, he received a telephone call stating to him that his sister Rekha had committed suicide. With great difficulty, after finding the address of her house, this witness and others went there. The witness also stated that in that connection, he had lodged a police complaint as per Ex.P1.
This witness, i.e. PW-1 was subjected to a detailed cross-examination, wherein he adhered to his original version.
12. PW-2, Vishalamma, mother of the deceased Rekha has stated that after the marriage of the deceased with accused, her daughter Rekha was subjected to cruelty by her husband, i.e. accused. The accused was demanding that his wife should bring cash of `2.00 lakhs, a motor cycle and 100 grams of gold. These details were revealed to her by none else than by her daughter herself over phone. On all those occasions, she was consoling her daughter and assuring that they would give in instalments to her husband. On one such occasion, due to unbearable cruelty meted to her by the deceased, she also attempted to commit suicide. At that point of time, PW-1 had gone there and advised his sister suitably.
PW-2 further stated that in the process, the accused shifted their residence from one place to another and had prohibited his wife Rekha i.e. the deceased from giving the address of the said house to her family members. He had conditioned that revealing the address would be only if they give him gold, cash and motor cycle. Still, her daughter had told those details to her (PW-2) over the phone.
The witness has further stated that due to unbearable cruelty meted to her, the deceased died. She does not now whether it was suicide by hanging or the accused caused her death.
This witness also was subjected to a detailed cross-examination wherein she adhered to her original version.
13. PW-3, Dinesh and PW-5 Dhananjaya claim to be the close relatives of the deceased. Both these witnesses have stated that after their marriage, the accused and deceased started living separately by putting up their own rented house. The deceased Rekha was visiting her parents’ house and during her visit, she was complaining that her husband was subjecting her to cruelty and was demanding valuables to be brought by her from her parental house. However, the family members of her parental house were consoling her and advising her to some how manage. Both these witnesses have stated that all these details of cruelty meted to the deceased were told to them by the family members of the deceased. However, PW-5 has stated that it was deceased alone who had given all those details about the cruelty meted to her by the accused to him over phone on more than one occasion. Both these witnesses have stated that the death of the deceased was suicide by hanging and death was a dowry death.
Even in their cross-examination, these witnesses have adhered to their original version.
14. PW-4, Papanna, claiming to be the neighbour of the accused has stated that the accused was quarrelling with his wife in connection with dowry. Though this witness used to advise him that what he is doing is not correct, still, he was continuing quarrelling with his wife assaulting and scolding her and he was also in the habit of consuming liquor and assault his wife. Whenever the parents of the deceased visited their house, he used to object for the same and asking his wife whether she collected the money from them as demanded.
PW-4 has further stated that after six months, they shifted their house and thereafter through somebody, he came to know that the deceased was no more.
15. PW-6, Chamaraj, a businessman in Onion has stated that being a businessman in Onion, the accused and the deceased were known to him. The accused was doing weaving work and their marriage was a love marriage. The couple had some dispute between them in connection with dowry and when the parents of the deceased used to visit their house, the accused was asking his wife to get money, gold and a house for lease from her parents. In that connection, this witness and others had advised him not less than two to three times, however, the accused shifted their residence to a different place and thereafter, this witness came to know that the deceased had committed suicide by hanging due to cruelty meted to her by the accused in connection with dowry.
16. PW-7, Umesh has stated that inquest panchanama on the deceased as per Ex.P3 was drawn in his presence by the Tahsildar at Bowring Hospital, Bengaluru.
17. PW-8, Mahesh, Police Constable has spoken about he apprehending the accused as per the orders of his superior on 16-05-2008 and producing him before his superior.
18. PW-9, Parameshaiah, Head Constable has stated that as per the order of his superior, he got the Post-Mortem examination conducted on the body of the deceased Rekha done through a Doctor and collected the dress worn by her at the time of her death including the old cloth used by her to hang herself. The witness has stated that the articles at MO1 to MO4, the cloth used by the deceased for hanging and his report at Ex.P5 were submitted to the Police Sub-Inspector, Giriraj of the K.R. Puram Police Station and received Forms under Section 146 of the Code of Criminal Procedure at Exs.P6 and P7.
19. PW-10 Giriraj, the then Police Sub-Inspector of the K.R. Puram Police Station has stated that based on an information received by the Control Room on 13-05-2008, he went to the house of the accused and noticed that the neighbours had broke opened the door and dead body of a lady was found hanging in the said house, photographs of which he took through a photographer. Later, he shifted the body to the mortuary of the Bowring Hospital, after intimating to her relatives over the phone.
On 14-05-2008 at 10:50 a.m., the complainant (PW-1) claiming himself to be the elder brother of the deceased lodged a complaint as per Ex.P1 and after registering the same, he prepared the FIR as per Ex.P7 and submitted it to the Court. Then, he proceeded to the spot of the offence and drew a scene of offence panchanama in the presence of panchas as per Ex.P8. He requested the Tahsildar to conduct the inquest panchanama on the body of the deceased. He also directed his staff to get the Post-Mortem examination of the dead body done and seized the cloths found on the dead body of the deceased which he has identified as MO1 to MO4 and handed over further investigation to PW-11, Ajjaiah.
20. PW-11, Ajjaiah, the then Assistant Commissioner of Police of K.R. Puram Sub-Division, has stated that on 15-05-2008, after taking up the further investigation in the matter from PW-10, he secured the presence of the accused and produced him before the Court. On 18-05-2008, he recorded the statements of CWs.6-10 and collected the Post-Mortem examination report and also recorded the further statement of the complainant on 19-05-2008. Completing the investigation, he has filed the charge sheet against the accused.
21. PW-12, Kenchaiah has stated that as an Assistant Sub-Inspector of respondent Police Station on 14-05-2008, he was the scribe for the inquest panchanama of the deceased Rekha, which was drawn by the Special Tahsildar. He has also stated that on 03-06-2008, he colleted the Post-Mortem examination report and submitted it to his superior, which he has identified as Ex.P9.
22. PW-13, Dr. Bheemappa, Havanoor has stated about he conducting the Post-Mortem examination on the body of the deceased Rekha at the request of the Special Tahsildar on 14-05-2008, after giving description of what he noticed on the person of the deceased and more particularly the presence of ligature mark starting from below the chin on the left side and sliding towards the right side of the neck and gone to the back of the neck also and again the mark had come under the neck and continued till the left side jaw, which measured 28x2.5 cm. and was 3 cm. below the chin, in the middle of the neck.
The witness has opined that the said ligature mark was anti-mortal in nature and it was due to hanging. He opined that the death was due to asphyxia as a result of hanging. Stating that he has issued the Post-Mortem report in this regard, he has identified the same at Ex.P9.
23. PW-14, Y.B. Krishna, the then Special Tahsildar of K.R.Puram, has stated that at the request of the respondent Police, on 04-05-2008, he conducted an inquest panchanama on the dead body of the deceased Rekha and recorded statements of few persons at that time. What he could gather from them was that the marriage of deceased Rekha with her husband was a love marriage and her husband was pestering her to get 100 grams of gold and `2.00 lakhs for taking the house on lease and a motor cycle to be brought from her parent’s house. He was subjecting her to both physical and mental cruelty due to which Rekha might have committed suicide or her husband himself might have caused her death.
The witness identified the inquest panchanama (Ex.P8) and the cloth used for hanging. He has also identified the cloths said to have been worn by the deceased which were marked at MO1 to MO4.
24. The evidence of PW-1, the elder brother of the deceased, PW-2, the mother of the deceased, PW-3 and PW-5, who are the relatives of the deceased have all uniformly come out on the aspect that the accused was subjecting the deceased to cruelty.
PW-1, being the elder brother has shown in his evidence that even though none of his family members attended the marriage of the deceased with the accused, since it was a love marriage, still, he had not discontinued to contact or communicate with his sister i.e. deceased Rekha. He has specifically stated that his sister had told him about the accused subjecting her to cruelty and about one such incident he has stated that his sister told him that since there was some delay in she fetching water to her husband (accused), he had assaulted her and also objected stating that he would have got valuables in the form of dowry if he had married any other person.
The further evidence of PW-1 that in the said connection, he had been to the work place of the accused to talk to him and thereafter to his house also and tried to convince him, has not been specifically denied in his cross-examination.
25. The said statement of CW-1 (PW-1) would go to show that the accused was constantly pestering his wife Rekha and demanding her to get valuables from her parents’ house and in that connection, he had also conditioned his wife not to allow any one from her parental house to visit his house, if his demands are not fulfilled.
As stated by PWs. 1 and 2, still, the deceased was in contact with them and was narrating the details and about the incidents over phone.
PW-1 has also given an incident about his sister attempting to commit suicide and being prevented by the neighbours because her husband i.e. the accused was subjecting her to cruelty and physically assaulting her. The witness also stated after hearing from the neighbours in the midnight at about 12.00 or 12.15 hours, he visited his sister and enquired her as to why she had attempted to commit suicide and heard from her that the accused was subjecting her to cruelty since she was not meeting his demand in getting the valuables from her parental house.
At more than one place, PW-1 has given the details of instances of the accused subjecting the deceased to cruelty and has stated that all those details were revealed to him by none else than by his sister Rekha.
Even in his cross-examination, PW-1 has maintained the same stand and reiterated that the accused was subjecting his sister to cruelty. It is also stated that prior to his marriage, the accused was a tenant in the upstairs of their house, where his sister and the accused developed intimacy between themselves, which ended in their love marriage.
In the cross examination of PW-1, a suggestion was made to this witness that when he visited his sister for the first time after her marriage, he did not go alone, but had taken one Dinesh and one Dhananjaya and others with him. The witness did not admit the said suggestion as true. However, by making the said suggestion, the accused has admitted that even after marriage, PW-1 was in touch with his sister and was visiting them. Further, denying the suggestion that he does not have personal knowledge, the witness stated that his sister herself was coming and revealing all those details to them. The suggestion made to him that after the love marriage of Rekha with the accused, these people had abandoned her and the said statement was not admitted as true by this witness.
In that manner, PW-1 apart from narrating about the alleged incidences of cruelty meted out to the deceased by the accused, has also adhered to the same version when cross-examined from the side of the accused.
26. The evidence of PW-2 is in consonance with the evidence of PW1 regarding the marital life of the deceased. She has stated in similar lines as what PW1 has stated and supported the case of the prosecution. She too had made it clear that the details of the cruelty meted to her daughter by the accused has been stated to her by none else than by her deceased daughter herself. She has also stated that the accused had put unreasonable restriction to his wife, by preventing her from talking to her parents, however, her daughter was calling them over phone and narrating these details.
Even in her cross-examination also, PW-2 has maintained the same stand and attempts made to shake her evidence from the side of the accused were unsuccessful. She adhered to her original version and reiterated that her daughter Rekha was being constantly subjected to cruelty by the accused. She has also stated that due to unbearable cruelty meted to her by her husband in connection with demand for valuables, her daughter died. A suggestion made to her in her cross-examination that the family of the deceased wanted deceased Rekha to come back to their house and accordingly they had advised their daughter, was not admitted as true by this witness, however, as in the case of PW-1 also, even with respect to PW-2 also, by making the said suggestion from the side of the accused, it was clearly admitted that PW-2 was in constant touch with her daughter i.e. the deceased Rekha.
27. When PWs. 1 and 2, being family members of the deceased Rekha are shown to have being in constant touch with the deceased, their evidence that the deceased was revealing before them about the cruelty meted to her by her husband, cannot be disbelieved.
The above finding that the evidence of PW-1 and PW-2 appears to be trustworthy, is further corroborated by the evidence of PW-3 to PW-5. As already observed, both these witnesses are the relatives of the deceased Rekha.
28. PW-3, apart from stating about the cruelty meted to the deceased by her husband, has also stated that after hearing about the death of the deceased Rekha, he also went to the house of the deceased and also to the Police Station while PW-1 lodged the complaint, Ex.P1. The witness was also a panch to the inquest panchanama which he has identified at Ex.P3.
This goes to show that PW-3 is not an important witness but was sharing the happiness and sorrows of the family of the PW-1 and the deceased.
Even in the cross-examination of PW-3 also from the side of the accused, by making a suggestion that when the witness had gone to the house of the deceased, he told them that they had love marriage as such they should lead a good life, the accused has admitted that PW-3 was in constant touch with the deceased and was visiting them regularly. Therefore, the evidence of PW-3 also appears to be trustworthy and cannot be ignored.
29. PW-5 apart from stating about his relationship with the deceased, has categorically stated that the deceased and the accused were shifting their residence from one place to another and finally to Ramamurthy Nagar at Bengaluru and deceased Rekha was in touch with him over telephone and she was telling him about the cruelty meted to her by the accused.
This witness has given some more details in his cross-examination, stating that even with respect to the alleged demand of dowry by the accused was told to him by none other than the deceased Rekha herself over telephone. The details given by the witness that even for festivals also his family used to invite the family of the deceased since elder sister of deceased Rekha was his wife, shows the naturality due to the relationship and concern this witness was having against the deceased and her family.
30. Supporting the evidence of PW-1, PW-2, PW-3 and PW-5 is the evidence of PW-6. As already observed, the said witness who claims himself to be an outsider to the family of the deceased, has stated that he was acquainted with the family of the deceased, he being a vendor in onion. The said witness also has categorically stated that the accused used to quarrel with his wife and harass her by demanding for valuables to be brought by her from her parental house. The witness also stated that in this connection about two to three times, he had advised the accused. When this witness says that he had advised the accused also, it shows that he was close to the family of the accused and the deceased as such, had taken such a lenience of advising the accused.
In his cross-examination, the witness has given some more details as to where he was residing and where the accused were residing. He has further stated that whenever the accused used to quarrel with his wife, himself and PW-1, Muralidhar were visiting them. Thus, the evidence of PW-1 that he was visiting his sister is further corroborated by the evidence of PW-6.
31. The evidence of PW-4 is one more corroboration to the evidence of PW-1, PW-2, PW-3, PW-
5 and PW-6. Even this witness (PW-4) also claiming to be one among the neighbours of the accused, has stated that the accused was subjecting the deceased to cruelty and demanding valuables to be brought by her from her parents’ house.
In his cross-examination, he has given the details as to what his avocation was and how he was able to know the details of cruelty meted to the deceased by the accused. Even this witness also has stated that in one such instance, he himself has telephoned to PW-1, the elder brother of the deceased and summoned him.
Thus, the evidence of PW-4 who is the independent witness also would go to show that the accused was subjecting the deceased to cruelty and the neighbours were also updating PW-1, the elder brother of the deceased in that connection and were summoning him. This further goes to show that the evidence of PW-1 that he was regularly visiting his sister and was in contact with her and getting the details of the cruelty meted to her by the accused is trust worthy and reliable.
32. In this way, the evidence of PW-1, PW-2, PW- 3, PW-4, PW-5, and PW-6 would clearly go to establish that immediately after about two months after the marriage of the deceased with the accused, the deceased Rekha was being subjected to constant cruelty by none else than her husband who is the accused herein. The said cruelty meted to the deceased by the accused was by pestering deceased Rekha to get valuables from her parents’ house in the form of cash, gold and a motor cycle.
33. The next question would be whether such a cruelty meted by the accused to the deceased can be called as cruelty in connection with dowry which has led to the death of the deceased and whether the said death of the deceased may be called as a ‘dowry death’.
Section 304-B of IPC reads as below:-
“304B. Dowry Death – (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection 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 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.”
34. In Baijnath case (supra), the Hon’ble Apex Court while analysing Section 113-B of the Evidence Act, 1872, which speaks about presumption as to ‘dowry death’ and Section 304-B of IPC at paragraphs 33 to 36 of the judgment was pleased to observe as below:-
“33. A conjoint reading of these three provisions, thus predicate the burden of the prosecution to unassailably substantiate the ingredients of the two offences by direct and convincing evidence so as to avail the presumption engrafted in Section 113B of the Act against the accused. Proof of cruelty or harassment by the husband or his relative or the person charged is thus the sine qua non to inspirit the statutory presumption, to draw the person charged within the coils thereof. If the prosecution fails to demonstrate by cogent coherent and persuasive evidence to prove such fact, the person accused of either of the above referred offences cannot be held guilty by taking refuge only of the presumption to cover up the shortfall in proof.
34. The legislative premature of relieving the prosecution of the rigour of the proof of the often practically inaccessible recesses of life within the guarded confines of a matrimonial home and of replenishing the consequential void, by according a presumption against the person charged, cannot be overeased to gloss- over and condone its failure to prove credibly, the basic facts enumerated in the Sections involved, lest justice is the casualty.
35. This Court while often dwelling on the scope and purport of Section 304B of the Code and Section 113B of the Act have propounded that the presumption is contingent on the fact that the prosecution first spell out the ingredients of the offence of Section 304B as in Shindo Alias Sawinder Kaur and another V. State of Punjab – (2011) 11 SCC 517 : (2011 AIR SCW 6556) and echoed in Rajeev Kumar V. State of Haryana – (2013) 16 SCC 640 : (AIR 2014 SC 227). In the latter pronouncement, this Court propounded that one of the essential ingredients of dowry death under Section 304B of the Code is that accused must have subjected the woman to cruelty in connection with demand for dowry soon before her death and that this ingredient has to be proved by the prosecution beyond reasonable doubt and only then the Court will presume that the accused has committed the offence of dowry death under Section 113B of the Act. It referred to with approval, the earlier decision of this Court in K.Prema S.Rao V. Yadla Srinivasa Rao – (2003) 1 SCC 217 : (AIR 2003 SC 11) to the effect that to attract the provision of Section 304B of the Code, one of the main ingredients of the offence which is required to be established is that “soon before her death” she was subjected to cruelty and harassment “in connection with the demand for dowry”.
36. Tested on the judicially adumbrated parameters as above, we are of the unhesitant opinion that the prosecution has failed to prove beyond reasonable doubt, cruelty or harassment to the deceased for or in connection with any demand for dowry as contemplated in either of the two provisions of the Code under which the accused persons had been charged. Noticeably, the alleged demand centers around a motorcycle, which as the evidence of the prosecution witnesses would evince, admittedly did not surface at the time of finalization of the marriage. PW-5, the mother of the deceased has even conceded that there was no dowry demand at that stage. According to her, when the husband (who is dead) had insisted for a motor-cycle thereafter he was assured that he would be provided with the same, finances permitting. Noticeably again, the demand, as sought to be projected by the prosecution, if accepted to be true had lingered for almost two years. Yet admittedly, no complaint was made thereof to anyone, far less the police. Apart from the general allegations in the same tone ingeminated with parrot like similarly by the prosecution witnesses, the allegation of cruelty and harassment to the deceased is founded on the confidential communications by her to her parents in particular and is not supported by any other quarter.”
In the instant case, admittedly the deceased married the accused on 13-05-2007. It is not in dispute that the deceased died on 13-05-2008 by hanging. Thus the death of the deceased was exactly one year after her marriage. Now what is to be looked into is whether the deceased was subjected to cruelty in connection with dowry soon before her death.
35. Learned High Court Government Pleader in his argument did not even whisper as to how Section 304-B is attractable in the case on hand. As observed by their Lordships in Baijnath’s case (supra), in order to presume that the death of the deceased was a ‘dowry death’, it is not just sufficient that the death of the deceased must be within seven years after the marriage, but, there must be evidence that the deceased was subjected to cruelty soon before her death in this connection for demand of dowry.
In the instant case, no doubt PW-1, PW-2, PW-3 and PW-5 have stated that the accused had subjected the deceased to cruelty and the said cruelty extended till the deceased lost her breath in her matrimonial home. Thus, their evidence which has been analysed in detail in the previous paragraphs establishes that till her death the deceased was subjected to cruelty by the accused. As such one of the necessary ingredients of Section 304-B of IPC that soon before her death, the deceased was subjected to cruelty or harassment by her husband stands established. However, though these witnesses have called the said cruelty as the one in connection with demand for dowry, but merely because these witnesses have used the terminology ‘dowry’ in their statements, it would not make ‘cruelty’ as ‘cruelty’ for demand of dowry, unless the word ‘dowry’ used in Section 304-B of IPC fulfills the definition of ‘Dowry’ as defined under Section 2 of the D.P. Act.
Section 2 of D.P. Act defines ‘Dowry’ as below:-
“Definition of “Dowry” – In this Act “Dowry” means any property or valuable security given or agreed to be given either directly or indirectly – (a) by one party to a marriage to the other party to the marriage; or (b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person;
at or before [or any time after the marriage] [in connection with the marriage of the said parties, but does not include] dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.”
A reading of the above Section would go to show that ‘dowry’ means any property or valuable security given or agreed to be given either directly or indirectly between the parties to the marriage or between the parents of either party to a marriage at or before or any time after marriage, in connection with the marriage of the said parties. Thus, the word ‘dowry’ has got a relationship with the marriage of the parties, though payment of said dowry may be at or before or any time after the marriage.
36. In the instant case, admittedly, the marriage of the deceased with the accused was a love marriage as such any previous negotiation for ‘dowry’ or agreement for payment of ‘dowry’ has not arisen in the case. The allegation of demand said to have been made by the accused to the deceased after their marriage, by ipso facto cannot be called as demand for ‘dowry’, that too, in the absence of any specific evidence in that regard.
37. Thus, this establishes that the accused had made demand with his wife and pestering her to bring valuables from her parents’ house, but, none of the witnesses have any where whispered as to how do they call it as a demand for ‘dowry’. No doubt they have used the word ‘dowry’ in their evidence, but, except using the word ‘dowry’, they have not given any details as to why they call it as dowry. Even according to them, accused had not used the specific word for his demand as ‘dowry’. But he has only stated that had he married any other girl, he would have got some property or valuables in the form of dowry. The said statement said to have been made by the accused cannot be attributed as a demand for Dowry for his alleged subsequent demands.
38. The prosecution also has not taken any pain in eliciting any corroborative statements from any of the witnesses on this point from the prosecution witnesses. Further more, as already observed above, the learned High Court Government Pleader also nowhere in his arguments whispered as to how Section 304-B of IPC is attracted in the case on hand. In his very brief arguments, as observed above, except stating that the prosecution witnesses have supported the case of the prosecution, learned High Court Government Pleader was not able to place his argument as to how the prosecution witnesses would fulfill the ingredients of Section 304-B of IPC in the circumstances of the case.
39. In Baijnath’s case (supra), the Hon’ble Apex Court in the facts before it was pleased to observe that the mere demand of motor cycle after marriage would not be treated as demand for ‘dowry’, that too, particularly when no complaint regarding any demand for ‘dowry’ was made before anybody including the police.
40. In the case on hand also, the mere fact that the accused demanding for some valuables to be brought by his wife from her parents’ house by itself cannot be construed as a demand for ‘dowry’ or a cruelty meted in connection with the demand for ‘dowry’, as such, even though there is proof of cruelty meted to the deceased by the accused and the death of the deceased was proved to be an unnatural death within seven years of marriage with the accused, still, in the absence of the prosecution establishing that such cruelty meted to the deceased soon before her death was, for or in connection with any demand for ‘dowry’, the said death cannot be called a ‘dowry death’.
41. However, the Trial Court without noticing the non fulfillment of the essential ingredients of the demand of ‘dowry’ in the matter, was carried away by the word ‘dowry’ used by the prosecution witnesses in their evidence and held that, cruelty meted to the deceased by the accused was a cruelty for ‘dowry’ and held the accused guilty of the offence punishable under Section 304-B of IPC. Since the said finding is now proved to be erroneous, it has to be held that the prosecution was able to prove the guilt of the accused for the offence punishable under Section 498-A of IPC beyond reasonable doubt, but it has failed to prove the guilt against the accused for the offence punishable under Section 304-B of IPC beyond reasonable doubts.
42. Accordingly, the accused deserves to be acquitted of the offence punishable under Section 304-B of IPC. However the finding of the Trial Court holding the accused guilty of the offence punishable under Section 498-A of IPC remains un-altered.
Accordingly, I proceed to pass the following:-
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