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PETITIONER: RAJAYYAN

       Vs.

RESPONDENT: STATE OF KERALA & ANR.

DATE OF JUDGMENT:       03/03/1998

BENCH: M.K. MUKHERJEE, SYED SHAH MOHAMMED QUADRI

ACT:

HEADNOTE:

JUDGMENT:                  THE 3RD DAY OF MARCH, 1998 Present:              Hon’ble Mr, Justice M.K. Mukherjee              Hon’ble Mr, Justice S.S. Mohammed Quadri M.P. Vinod , Adv. for the appellant E.M.S. Anam,  G. Prakash,  Advs. (M.T. George) Adv (N.P) for the Respondents.                       J U D G M E N T      The following Judgment of the Court was delivered: M.K Mukherjee, J.      Within 3-2/2 years of her marriage Sanalkumari, a young housewife, met  with her death on October 5, 1987 by falling in a  well in  her matrimonial  home. Alleging that it was a ‘dowry death’  and that  her husband  (the appellant  before us), mother-in-law  and two  sisters-in-law were responsible for the  same a  case was registered against them. Following the charge-sheet  (challan) submitted  by the Police and the committal enquiry  held by a Magistrate, they were placed on trial  before  the  Sessions  Judge,  Thiruvananthapuram  to answer a charge under Section 304B I.P.C. The trial ended in an acquittal of all of them; and aggrieved thereby the State of Kerala  filed an  appeal and  the mother  of the deceased filed an  appeal and  the mother  of the  deceased  filed  a revision petition in the High Court. In disposing of them by a common  judgment the  High Court reversed the acquittal of the appellant  and convicted  him for the above offence. The acquittal of  others was  however upheld. The above judgment of the  High  Court  is  under  challenge  in  these  appeal preferred by the appellant.      The prosecution  case briefly stated is as follows: The appellant married  the deceased,  daughter of P.Ws. 1 (Leela Bai) and 2 (Madhavan Nadar) on June 7, 1984 in the Malamkara Syrian Catholic  Church, Kanjiramkulam.  At the  time of the marriage he  obtained by why of dowry 20 cents of land and 2 gold ornaments  wroth 20  sovereigns. The  document for  the transfer of  the land  was executed  by P.Ws  1 and 2 on the date of  the betrothal.  Even on  the 3rd day after marriage the appellant  started expressing  dis-satisfaction  on  the quantum of dowry. As  he had by then started construction of a building  on a  land belonging  to his  father availing  a

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loan and  the loan amount was exhausted, he approached P.Ws. 1 and  2 for  the balance  amount required  to construct the building. Since  P.Ws. 1  and 2 failed to meet his demand he and the  other members  of his  family started harassing and ill-treating the  deceased. In  the meantime,  the  deceased had become  pregnant. She was, however, not allowed to go to her parents’ house prior to the delivery; and even after she was admitted in the hospital for the delivery, they were not intimated about  it. The  deceased gave  birth to  a  female child on  July 6,  1985. As  a result  of the mental torture during pregnancy,  she developed  post partum  psychosis and was under  the treatment  of P.W.  12 (Dr.  M.S Sivakaumar). Finding the  pitiable predicament  of the  deceased P. Ws. 1 and 2 gave Rs. 50,000/- in case to the appellant as demanded and obtained   a release of the 20 cents of land transferred in his  name. Thereafter,  the appellant  put forth a demand for an  additional amount  of Rs. 10,000/- and 3 sovereigns. As that  demand was not immediately met by P.Ws. 1 and 2 the appellant and  other members  of  his  family  continued  to torture and  harass the  deceased. When mt he torture became unbearable she committed suicide by jumping into the well in the house of the appellant.      The appellant pleaded not guilty to the charge levelled against him  and denied  the prosecution  story of demand of dowry and  torture and harassment on that score. He asserted that he  had a  happy conjugal  life and  that her death was owing to  an accidental  fall in  the  well.  Though  during cross-examination  of  P.Ws.  1  and  23  it  was  not  even suggested to them that the deceased was not his wife, in his examination under  Section 313  Cr. P.C. he denied that fact also.      In support  of their  respective cases  the prosecution examined 20 witnesses and the defence examined 6 witnesses. On consideration  of the evidence adduced by the parties the trial Court first recorded the following findings:-      (i) the  deceased was  the legally  married wife of the      appellant;      (ii) she committed suicide on October 5, 1987;      (iii) there was a demand of dowry in the form of landed      property, cash  and gold  ornaments  for  the  marriage      between the appellant and the deceased; and      (iv) a  dowry problem  was  involved  in  the  marriage      relationship between he appellant and the deceased.      The trial  Court  proceeded  to  consider  whether  the requirements  of   Section  304B(1)  I.P.C.  were  factually established in the case with the following observations :-      " As  noticed above  the demand for      Rs.   50,000/-   could   not   have      continued beyond  September,  1986.      But P.  Ws.  1  and  2  state  that      immediately after  the  transaction      evidenced by Exhibit P3 and Exhibit      D1 the  Ist accused  made a  demand      for  a  further  payment  of    Rs.      10,000/-  as  given  to  the  elder      daughter  and   also   wanted   the      deficit of  3  sovereigns  in  gold      ornaments. P.  W. 2  says that  his      daughter was  in tears hearing this      and  she  stated  that  if  further      amounts were  to be paid to the Ist      accused  her  younger  brother  and      sisters  would   not  get  even  10      cents. If  there had  been  such  a      demand for  payment of Rs. 10,000/-

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    or for  3 sovereigns gold ornaments      and cruelty  and harassment on that      account till  Sanalkumari’s  death,      then it will be a "dowry death"."      and answered the same in favour of the accused with the following words:-      "Here the  evidence shows  that the      squabbles between  the parties over      allotment of  the dowry  could have      caused mental  pain to the deceased      before September,  1986. But  there      is no  acceptable proof  of demands      for dowry thereafter and harassment      on that account. The evidence about      the incident  in 1987 only indicate      that  the   mother-in-law  and  the      daughter-in-law possibly  could not      get along  well  but  there  is  no      proof of  a rift  between  the  Ist      accused and  the deceased. Thus the      prosecution has  not  succeeded  in      proving that  the  accused  persons      were   guilty    of   cruelty    or      harassment   as   contemplated   by      Sections  304B   and  Section  498A      I.P.C.  and   that  the   death  of      Sanalkumari was a dowry death."      In  appeal  the  High  Court  concurred  with  all  the findings recorded  by the  trial Court against the appellant but disagreeing  with the above quoted finding in his favour passed the impugned judgment.      Keeping in  view the well settled principle of law that an order of acquittal ought not to be set aside unless it is found to  be patently wrong and wholly unsustainable we have perused the  entire evidence and the judgments of the Courts below. Our  such exercise  persuades  us  to  hold,  at  the outset, that  the concurrent  findings of  fact recorded b y the  Courts   below  in   favour  of   the  prosecution  are unassailable and  need no  interference whatsoever.  We  are therefore left  with the question whether the High Court was justified in  reversing the  finding of the trial Court that there  was  no  satisfactory  evidence  to  prove  that  the deceased was  subjected to  cruelty  or  harassment  by  the appellant for or in connection with any demand for dowry.      It stands  established from the evidence, both oral and documentary, that  since before  the date  of  marriage  the appellant had  had been  insisting upon  dowry  and  on  the betrothal day  itself certain  land had to be transferred in his favour.  The evidence  further establishes  that at  the time of  marriage some  gold ornaments  were  given  to  the deceased. Then  again it  si the  concurrent finding  of the Courts below  that since  the 3rd  day  after  marriage  the appellant  was   making  further   demands  of  dowry  which ultimately compelled  P.Ws. 1 and 2 to give him a sum of Rs. 50,000/- on  September 10, 1986. The evidence on record also demonstrates that  from before  marriage and  even till  two years thereafter  t he  appellant was  continuing  with  his demand for  dowry and  that the  deceased was  subjected  to cruelty, both  mental and  physical,  on  that  score  since marriage. If  in the  background  of  the  above  facts  and circumstances, the relevant evidence of P.Ws. 1 & 2 and P.W. 5 (Sudhakaran),  a cousin  of the  deceased, is  read  there cannot be  escape from  the conclusion  that  the  appellant continued with  his demands  for dowry  and ill-treated  the deceased till  the  month  of  September  1987.  The  patent

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infirmity in the judgment of the  trial Court in this regard is that  it  considered  the  demand  subsequently  made  in isolation and  also failed  to notice  material evidence  on record.      P. Ws. 1 and 2 categorically stated that even after the sum of Rs. 50,000/- was paid the appellant made a demand for further payment  of Rs.  10,000/- on  the specious plea that they (P.Ws.  1 and  2) had  at the  time of  the marriage of their elder daughter given Rs. 60,000/- as dowry and that he was yet  to receive  gold ornaments  worth 3  sovereigns, as promised at  the time  of  his  marriage.  It  is  also  the evidence of  P.W.2 that  his daughter  was in  tears hearing this. The  evidence of  P.Ws.1 and  2 in  this regard stands amply corroborated  by the  evidence of P.W. 5. He testified that on September 27, 1987 the appellant, accompanied by the deceased went  to his  house  and  told  him  that  he  (the appellant) was to get a sum of Rs. 10,000/- and 3 sovereigns as the  balance of  dowry and that  he should intervene into the matter  and persuade P.Ws. 1 and 2 to handover the same. In view  of the  insistence of  the  appellant  he  gave  an assurance to  him that  he would  talk of  P.Ws. 1 and 2 and ensure that  the money  is paid  and ornaments given to him. Thereafter, P.W.5 met P.WS. 1 and 2 and asked them to accede to the  demand of  the appellant.  Before, however, he could communicate to  the appellant  the outcome  of his talk with P.Ws. 1  and 2  the deceased  met with  her death. The trial Court disbelieved the evidence of P.W. 5 as in the statement recorded under  Section 161 Cr. P.C. he did not mention that he agreed to request P.Ws. 1 and 2 to meet the demand of the appellant nor  did he  mention that  he went to the house of P.Ws. 1  and 2  and they  told him that they would accede to the demand.  Even if  it is assumed that P.W.5’s omission to make such  statements  amount  to  material  contradictions, still then,  it would  not in  any way impair his unrebutted evidence that  the appellant came to his house and asked for the additional  dowry. Having  carefully  gone  through  his evidence we  find no  reason whatsoever  to disbelieve.  The evidence  of  cruelty  and  harassment  for  non-payment  of additional  dowry   is  also   furnished  by  C.W.1  (Sister Veronica), who  at the material time was the Mother Superior of the  local ’Daughters  of Mary’  Convent and known to the parties from  before   and  P.W.6  (Gangadharan  Nadar),  an Advocate practising  in the Courts at Nayyattinkara. C.W.1’s good offices  were requisitioned  by P.Ws.  1 and 2 to bring harmony  into   the  life  of  the  deceased  subsequent  to September 10,  1986, and   when C.W.1 was approached by them P.W.6 was  present. Both of them stated that P.W.1 told them that the  appellant was  quarrelling with  the deceased  for getting more  money  as  dowry.  Both  these  witnesses  are independent witnesses  and there  is no reason whatsoever to disbelieve them. While on this point we cannot also ignore t he stand taken by the appellant in the statement made by him under Section  313 Cr.  P.C. that  the deceased  was not his wife.  Obviously   because  his  continuous  and  persistent demands for  dowry were  not being met by P.Ws. 1 and 2, the appellant went to the extent of even disowning the deceased. Needless to say such conduct of the appellant is an eloquent proof  of  his  having  subjected  the  deceased  to  mental cruelty. Unfortunately, all these aspects of the matter were not  considered   by  the   trial  Court   from    a  proper perspective.      Having analysed the entire evidence on record we are in complete agreement with the High Court that the deceased was subjected to  cruelty by  the appellant for payment of dowry soon before  her death  for which she committed suicide. The

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conviction of  the appellant under Section 304B I.P.C. must, therefore,  be   upheld.  Since  the  sentence  of  rigorous imprisonment for  seven years  awarded to  the appellant for his conviction  is the  minimum prescribed,  the question of interfering with the same also does not arise.      We, therefor,  do not  find any  merit in these appeals dismiss the same.