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CASE NO.: Appeal (crl.)  706 of 2008

PETITIONER: Noorjahan

RESPONDENT: State Rep. by D.S.P.

DATE OF JUDGMENT: 23/04/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T REPORTABLE

CRIMINAL APPEAL NO.   706 OF 2008 (Arising out of SLP (Crl.) No. 3399 of 2007)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.  

2.      Challenge in this appeal is to the judgment of a Division  Bench of the Madras High Court dismissing the appeal of the  appellant and upholding the conviction for offence punishable  under  Section 498-A of the Indian Penal Code, 1860 (in short  the ’IPC’) recorded and imposed by the learned District and  Sessions Judge, Karur in S.C. No.1/2004. Several persons  who had faced trial had preferred the appeal. Accused Nos.1 to  5 and 7 i.e. present appellant were found guilty of offence  punishable under Section 498-A IPC. Accused Nos.1 to 5 were  found guilty under Section 302 IPC.

3.      In appeal it was held that A-1 and A-2 were guilty of  offence punishable under Section 302 IPC and, therefore, their  conviction as recorded by the trial Court was affirmed.  Conviction of A-3, A-4 and A-5 for offence punishable under  Section 302 IPC was set aside. In respect of offence punishable  under Section 498-A the conviction in respect of A-1 to A-5  and A-7 was confirmed.  Appellant is A-7.

4.      Background facts as projected by prosecution in a  nutshell are as follows:          The marriage between A-1 and Syed Ali Fathima  (hereinafter referred to as the deceased) took place on  22.4.2001. A-2 is the brother of A-1. A-3 and A-4 are the  sisters of A-1 and A-5 is the mother and A-6 is the father of A- 1. A-7 is the aunt of A-1. PW-1 is the mother of the deceased.  At the time of marriage, PW-1 paid Rs.5,000/- and three  sovereigns of gold jewels and after a period of two months, A-1  went over to Mumbai seeking for a job.  All the other accused  ill treated the deceased stating that the dowry demand was not  met. Prior to the occurrence, A-1 came from Mumbai. PW-1  was summoned. At that time, there was a demand from A-1,  A-2 and A-7, the appellant that 10 sovereigns of gold and a  sum of Rs.5,000/- towards "Seervarisal" for Ramzan must be  paid immediately. A-7, the appellant, who was present at that  time informed PW-1 that she can pay the said demand within  a period of two months.

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       PW-2 is closely related to PW-1. On 6.3.2000 he came to  Pallapatti and went to the house of PW-1. PW-2 was informed  by PW-1 that there was a dowry demand from the side of the  accused. A marriage was scheduled to take place in the house  of a neighbour which is next to the house of A-1 and hence on  8.3.2002, PW-2 came there between 11.00 a.m. and 12 noon.  He was chatting with the said neighbour. Since PW-2 knew  that there was a dowry demand, he decided to meet the  deceased in her house for that purpose. When he was just  getting down through the stair case, he was able to see the  house of the deceased Fathima. A window was open through  which he was able to see within 10 feet. At that time, A-1 and  A-2 strangulated the deceased Fathima with a rope and A-3  and A-4 caught hold of both the arms. On seeing this, PW-2  was shocked. When he was witnessing the occurrence, A-2  saw PW-2. Immediately, PW-2 went over to the place of PW-1.  But he could not meet anybody and he went over to his native  place, Salem and returned on 9.3.2002.

       When PW-1 went to the house of the accused, the wife of  A-2 locked from inside and informed that the deceased  Fathima was upstairs. When PW-1 went upstairs, she found  only the dead body of her daughter and PW-1 was able to see a  ligature mark around the neck of the deceased. PW-1  immediately came back and informed the relatives and  proceeded to the Police Station. PW-13 the Sub Inspector of  Police was on duty on the day of occurrence. PW-1 gave a  complaint at about 1700 hrs which is marked as Ex.P-1 on the  strength of which a case came to be registered in Crime No.  49/2002 under Section 174 of the Code of Criminal Procedure,  1973 (in short the ’Code’).  Ex.P-11, the FIR was dispatched to  the Court. On receipt of the copy of the FIR, PW-14 the Deputy  Superintendent of Police took up investigation, proceeded to  the scene of occurrence, made inspection and prepared Ex.P-2  the observation Mahazar and Ex.P-12 the rough sketch. He  also sent a copy of the FIR to PW-10, the Revenue Divisional  Officer. PW-10, the Revenue Divisional Officer, on receipt of  the copy of the FIR proceeded on the place and also conducted  inquest on the dead body in the presence of witnesses and  prepared Ex.P-9, the Inquest Report, wherein he opined that it  was not a case of suicide but it was the death by homicide. He  also made enquiries from the witnesses including the accused.  Following the same, the dead body was subjected to post  mortem by PW-9, the doctor attached to the Government Head  Quarters Hospital, Karur, who opined that the deceased  appeared to have died of asphyxia due to strangulation about  24-36 hours prior to autopsy.

       Originally, the case was registered under Section 174 of  the Code. Later it was converted into one under Section 498-A  and 302 IPC and the express FIR (Ex.P-13) was dispatched to  the Court.

       Pending investigation, A-1 to A-6 were arrested. A-2 came  forward to give confessional statement voluntarily and the  same was recorded by PW-13, the Deputy Superintendent of  Police in the presence of witness, pursuant to which A-2 has  produced M.O.1-Nylon rope which was recovered under a  recovery Mahazar, Ex.P-1.  

       On completion of the investigation, the Investigating  Officer filed the report. The case was committed to the Court of  Sessions. Necessary charges were framed. In order to  substantiate the charges leveled against the accused, the  prosecution examined 16 witnesses and relied upon 13

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exhibits and 3 material objects. On completion of evidence on  the side of the prosecution, the accused were questioned  under Section 313 of the Code as to the incriminating  circumstances found in the evidence of the prosecution  witnesses which they denied as false. The accused examined  three witnesses who were all Medical Officers through whom 5  exhibits were also marked.                  The accused persons pleaded innocence and, therefore,  trial was held and conviction was recorded and sentence  imposed as noted above.

5.      In support of the appeal, learned counsel for the  appellant submitted that there was no evidence so far as the  present appellant is concerned to show that any demand for  dowry was made by her. The witnesses had not stated that she  was present when the demand was made. Therefore, it is  submitted that the trial Court and the High Court erred in  directing her conviction.  

6.      In response, learned counsel for the respondent-State  supported the judgment of the trial Court and the appellate  Court.  

7.      Section 498-A appears in Chapter XX-A IPC.

8.      Substantive Section 498-A IPC and presumptive Section  113-B of the Indian Evidence Act, 1872 (in short the ’Evidence  Act’) have been inserted in the respective statutes by the  Criminal Law (Second Amendment) Act, 1983 and by the  Dowry Prohibition (Amendment) Act, 1986 respectively.

9.      Section 498-A of IPC and Section 113-B of the Evidence  Act include in their amplitude past events of cruelty. Period of  operation of Section 113-B of the Evidence Act is seven years,  presumption arises when a woman committed suicide within a  period of seven years from the date of marriage.   

10.     Section 498A reads as follows: "498A: Husband or relative of husband of a  woman subjecting her to cruelty- Whoever,  being the husband or the relative of the  husband of a woman, subjects such woman  to cruelty shall be punished with  imprisonment for a term which may extend to  three years and shall also be liable to fine.  

Explanation \026 For the purpose of this section  ’cruelty’ means \026

(a)     any wilful conduct which is of such a  nature as is likely to drive the woman to  commit suicide or to cause grave injury or  danger to life, limb or health (whether mental  or physical) of the woman; or

(b)     harassment of the woman where such  harassment is with a view to coercing her or  any person related to her to meet any  unlawful demand for any property or valuable  security or is on account of failure by her or  any person related to her to meet such  demand."

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"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 \026 For the purposes of this section  ’dowry death’ shall have the same meaning as  in Section 304-B of the Indian Penal Code (45  of 1860)."

11.     Consequences of cruelty which are likely to drive a  woman to commit suicide or to cause grave injury or danger to  life, limb or health, whether mental or physical of the woman  is required to be established in order to bring home the  application of Section 498A IPC. Cruelty has been defined in  the Explanation for the purpose of Section 498A.  Substantive  Section 498A IPC and presumptive Section 113B of the  Evidence Act have been inserted in the respective statutes by  Criminal Law (Second Amendment) Act, 1983. It is to be noted  that Sections 304B and 498A, IPC cannot be held to be  mutually inclusive. These provisions deal with two distinct  offences.  It is true that cruelty is a common essential to both  the Sections and that has to be proved. The Explanation to  Section 498A gives the meaning of ’cruelty’.   

12.     The object for which Section 498-A IPC was introduced is  amply reflected in the Statement of Objects and Reasons while  enacting the Criminal Law (Amendment) Act 46 of 1983. As  clearly stated therein the increase in the number of dowry  deaths is a matter of serious concern. The extent of the evil  has been commented upon by the Joint Committee of the  Houses to examine the work of the Dowry Prohibition Act,  1961. In some cases, cruelty of the husband and the relatives  of the husband which culminate in suicide by or murder of  the helpless woman concerned, constitute only a small  fraction involving such cruelty. Therefore, it was proposed to  amend IPC, the Code of Criminal Procedure, 1973 and the  Evidence Act suitably to deal effectively not only with cases of  dowry deaths but also cases of cruelty to married women by  the husband, in-laws and relatives. The avowed object is to  combat the menace of dowry death and cruelty.            13.     So far as the present appellant is concerned, the evidence  is inadequate to show that she was party to any demand for  dowry. In fact, PW-1 stated that when she went to the place of  her daughter appellant was present alongwith A-1 and A-2.  The said A-1 demanded jewels and presentation of Rs.5,000/-  for Ramzan.  She accepted that she told A-1 and A-2 that she  will send the same within a week. The next statement of this  witness is very significant. She (appellant) told that two  months’ time will be sufficient for offering the presentation. In  other words, she did not make any demand for dowry. That  aspect has been accepted by PW-1. Significantly, this witness  in her cross examination had admitted that appellant is  residing at Coimbatore for the last 35 years. She has  categorically admitted that while she went to the house of her  daughter, she (appellant) was not present. Therefore, there is  no evidence to show that appellant was either present when  the demand was made or she herself made any demand.   

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14.     Above being the position, the prosecution has failed to  establish the accusations against the appellant. Therefore, her  conviction cannot be maintained and is set aside. She was  released on bail by order dated 22.2.2008.  In view of the order  of acquittal, bail bonds shall stand discharged.  

15.     The appeal is allowed.