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CASE NO.: Appeal (crl.)  779 of 2005

PETITIONER: T. Aruntperunjothi

RESPONDENT: State Through S.H.O., Pondicherry

DATE OF JUDGMENT: 05/04/2006

BENCH: S.B. Sinha & P.P. Naolekar

JUDGMENT: J U D G M E N T

S.B. SINHA,  J :

       Davamani (the deceased) was the wife of the appellant herein.  She  admittedly committed suicide on 14.03.1994.  They were married on  04.09.1992.  The deceased gave birth to a female child at Pondicherry in  July 1993.  The appellant for one reason or the other did not bring her back  from her maternal home for a period of about eight months.  She was  brought back in February 1994.  According to the appellant, the deceased  proposed to go back to her mother’s house to see her mother which he  refused stating that she had come back only a month back.         It is not in dispute that at the time when the deceased committed  suicide neither the appellant nor his mother was present in the house.   Somehow or the other the people of the neighbourhood came to know about  it. They broke open the door and found the dead body.  The deceased  committed suicide at about 1 p.m..  The mother of the appellant came back  at 3.30 p.m.  

       It also stands admitted that the family members of the deceased,  namely, her mother (PW-7), sister (PW-8), maternal uncle (PW-6),  another  relative (PW-9), and brother (who was not examined), came to the house and  allowed the cremation of the dead body in his village.  They took back all  the articles which were given to her at the time of or after the marriage.  No  first information report was lodged by them.  The police was informed by  the appellant himself whereupon a case under Section 176 of the Code of  Criminal Procedure was initiated.  The matter was also considered by  panchayat.  One Rajarajan Veerasamy, Deputy Tahsildar-cum-Executive  Magistrate, (PW-14), conducted an enquiry.  He examined the prosecution  witnesses and others.  He submitted a report before the Station House  Officer, Mettupalayam Police Station on or about 15.03.1994 wherein he is  said to have raised some suspicion as regards the death of the said  Davamani.  In his report, it was stated : "\005.Further, their statements also stress the harassment  for want of dowry.  The Panchayatars statement does not  clear the doubts as they are not aware of any facts and  they could not confirm that there are no problems  between the deceased and her husband.  There is an  injury on the right hand side of the neck of the deceased  and an internal injuries could be traced out only in the  post mortem report.

       In my opinion, I suspect that there could be  harassment for demand of dowry by the in-laws and  husband of the deceased, based on the statements  recorded in this regard.  Hence, in my opinion, this could  be a case of dowry death\005"

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       On the basis of the suspicion expressed by him, a case under Section  304B of the Indian Penal Code came to be registered against the appellant  alone.  His mother was not made an accused.  She was made a prosecution  witness.  She was examined on behalf of the prosecution as PW-1.  It is  furthermore not in dispute that an investigation into the offence was required  to be carried out by a Superintendent of Police.  Upon the said report of PW- 14, Smt. Anita Roy, Superintendent of Police (PW-10), took up the  investigation.  She was not conversant with the local language.  She went to  the village Kilinchikuppam and examined the mother, sister and brother of  the deceased.  The Circle Inspector Munisam and Head Constable  Ramaswami (PW-15) accompanied her.  Admittedly, the evidences of the  witnesses were recorded by the said PW-15.  They were said to have been  translated in English.  Although, according to PW-10, she verified the said  statements, but did not state as to how she did it.  PW-10 and PW-11 being  not available at that time  in the village, were asked to come to Pondicherry.    PW Nos. 7, 10 and 11 visited Pondicherry  on  8.05.1994.  Their statements  were said to have been recorded by PW-15, in her presence.  The said  statements were also allegedly translated.  She again allegedly verified the  said statements without disclosing the mode and manner thereof.  Upon  completion of the investigation a chargesheet was filed.   

       The learned Sessions Judge framed the following charge against the  appellant:

       "That you from 4.9.1992 to 14.3.1994 had  subjected your wife Davamani to cruelty and harassment  in connection with dowry demand and had driven her to  commit suicide by hanging at her residence at  Shanmugapuram on 14.3.1994 between 8-15 and 13-00  hours which occurred within seven years of her marriage  and that you thereby committed an offence punishable  under Section 304B of the Indian Penal Code and within  my cognizance."  

       In support of its case, the prosecution examined Kasiammal (PW-1),  Amudha (PW-2), Arumugham (PW-3), Seethapathy (PW-6), Amaravathi  (PW-7), Chandrakantha (PW-8) and Jaya (PW-9) .

       In this case three witnesses were also examined on behalf of the  prosecution who instead of supporting its case directly or indirectly  supported the case of the appellant herein.  PW-1 is the mother of the  appellant.  PW-2 is a neighbour and PW-3 was a teacher of the village, who  himself had even, according to prosecution witnesses, been demanding  dowry.  We would refer to their depositions before the court a little later.   

       We would, however, at this stage notice the deposition of those  witnesses who supported the case of the prosecution completely.   

       PW-7 is the mother of the deceased.  She was, presumably her best  friend.  It is expected that the deceased would share her agonies with her  mother only.   

       Three periods are involved in this case.  The marriage took place on  04.09.1992.  The deceased stayed with her husband for about seven months,  i.e., upto February 1994.  According to PW-7 they were living happily  during that period.  The deceased went back to her mother’s place for  delivery of a child.  She delivered a child in a hospital.  According to the  deceased’s mother the appellant came and saw the child.  She was later on  discharged from the hospital after informing the appellant. The deceased  stayed with her mother from March 1993 to February 1994.   

       The incident took place on 14.03.1994.

       So far as demand of dowry is concerned, allegedly a demand was  made of 8 sovereign of gold.  One witness PW-9, Jaya, however, states that

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the accused party demanded 9 sovereigns.  It was stated by other prosecution  witnesses that 6.5 sovereign of gold was given at the time of marriage,  whereas according to PW-9 only five sovereign of gold was given.  Another  demand by way of dowry was said to be in the form of a silk saree as it was  missing at the time of marriage and the groom’s family wanted them to  purchase a new saree.   

       We may notice that no witness stated that the demand of dowry was  made by the appellant himself.  Evidence brought on record by the  prosecution as regard the alleged demand of dowry is : (i) PW-3  Arumugham had been demanding dowry; (ii) a demand was made also by  the brother of the accused; and (iii) the hearsay evidence of PWs that the  deceased herself told that she was being harassed for demand of dowry.  

       It is of some significance to note that the mother of the deceased  categorically stated. :

"\005The accused has not demanded for the jewels and  saree.  The teacher only demanded.  The teacher is  responsible for my daughter’s death."

It is furthermore of some significance to note that a categorical  statement was made by PW-7 that when PW-3 had visited her house and  demanded a silk saree and jewels, she had told him that she would ask her  son-in-law regarding the same which demonstrate that she had confidence in  him.  It is not her case that at any point of time she had asked the appellant  as regard any demand of dowry made by him.          PW-6 is the  maternal uncle of the deceased.  His evidence cannot at  all be relied upon as what he stated in his deposition had not been stated by  him before the investigating officer or before the Deputy Tehsildar.  He, in  his deposition, went beyond the prosecution case.  According to him, the  accused and his family demanded TVS  Moped, Cot, Bureau, Grinder and  vessels made of stainless steel.  No such case was made out by the family  members of the deceased.  According to him, when he visited the deceased   six months after the marriage, she had allegedly informed him about being  beaten by the appellant and demanding of remaining 1.5 sovereign of gold  jewels.  He spoke about giving of  = sovereign of gold during Valaikappu  function.   

The said function is indisputably held when the woman is about seven  months’ pregnant.  It may, therefore, be that = sovereign of gold might have  been given as a customary gift.  He is said to have been informed that it was  PW-3 alone who came to his sister’s house and demanded  the balance of  jewels and a silk saree which had been missing at the time of marriage.   Even this witness, thus, did not say that the said teacher was making any  demand on behalf of the appellant.              As noticed hereinbefore, according to PW-7, she believed that the  cause of death of the deceased was the demand of dowry made by PW-3.   

PW-8  is the sister of the deceased.  She visited her sister three months  after marriage and was allegedly told by her that her in laws had been  demanding the balance of jewels which had been agreed to by them.  At that  time admittedly  no allegation was made by her as regard harassment meted  out to her by anybody far less the appellant herein.    PW-9 is the aunt of the deceased.  She was examined by the  Superintendent of Police three months after the death of the deceased  Davamani.  She of course  told about the alleged torture meted out to the  deceased by the appellant for not giving the balance jewels but her evidence,  in our considered view, is not reliable.  Evidence led by prosecution, thus,  failed to establish involvement of the Appellant as regards the alleged  demand of dowry.

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We may now scrutinize the evidence led by the prosecution as regards  the alleged harassment of the deceased.   

The mother of the deceased did not depose that she had ever been  intimated by the deceased about harassment meted out toher.  She is said to  have received the information from her son who was not examined.  Her  evidence, thus, being hearsay in nature is inadmissible in evidence.   She  allegedly came to know about the alleged harassment through her son and  daughter only.  PW-8, however, does not say that she had ever stated the  same to her mother.  PW-7’s statement as regard harassment, thus, is not  admissible at all.

We have noticed hereinbefore that when PW-8 visited the deceased  for the first time, i.e., three months after the marriage, she did not speak  about any harassment.  Only when she allegedly came to see her sister after  the delivery of the child and asked as to how she was, she allegedly cried  stating that she was in apprehension of danger to life.  She is said to have  made a similar statement before the police also but in relation thereto no date  or month was mentioned.  She deposed that she allegedly had told the  Tahsildar that the deceased was beaten up by the appellant; but no such  statement appeared to have been made.  She in her evidence categorically  stated that :

"\005When I invited my sister to come to my house along  with her husband, she told that her husband would come  only after his mother in law come and go to his  house\005."     

       The explanation offered by the accused is exactly the same.  We for  the reasons mentioned hereinbefore, do not intend to place any reliance on  the statement of  PW-9 even on this score.   

We may at this juncture may notice the peculiar features of the case.   PW-1, the mother of the accused and PW-3, the teacher, who were  responsible for the demand of dowry had not been made accused in the case.   They have been examined as prosecution witnesses.  PW-1 has not even  been declared hostile.  She was examined by the prosecution, as presumably  before the police because she had deposed against the accused and in  support of the prosecution.  As regards the suicide committed by the  deceased, she offered an explanation not as a defence witness but as a  prosecution witness stating that after a month of her coming back after  delivery of child,  the deceased had requested her son to permit her to go to  her parents’ house, but he had told her that she could do so only after her  parents come to their house but despite the same she had been insisting to  visit her parents.  According to PW-1 she was a short tempered girl.  She  categorically stated that she committed suicide for not being allowed to go to  her parents house by the appellant and there was no other reason therefor.   PW-2 is another witness, who was examined by the prosecution.  She  was the last person to see the deceased.  According to her at about 12.30  p.m., she visited her house.  She was in normal mood.  She also bears  testimony that the couple had been leading a happy life.  She had also not  been declared hostile by the prosecution.

       PW-3 is the teacher, who according to PW-7 was solely responsible  for causing her daughter’s death.  He was declared hostile.  He had been  examined by the police as also by the Superintendent of Police.  He  categorically stated that there had never been any problem as regard dowry  nor any complaint was made by the appellant to the deceased’s family about  missing of the silk saree.  Although he was declared hostile, only some  suggestions were given to him. In fact he had not been cross-examined in the  true sense of the term. His attention had not been drawn to his earlier  statements, if any, before the police or before the Deputy Tahsildar.  Why he  was examined  as a prosecution witness and why he was declared hostile is

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not known.   

       In the aforementioned factual backdrop, we have to consider as to  whether a case has been made out for conviction of the appellant under  Section 304-B of the Indian Penal Code, which reads as under :

               "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, 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) Whosoever 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."  

The essential ingredients of the said offence, therefore, are (i) death of  a woman must have been caused by any burns or bodily injury or otherwise  than under normal circumstances; (ii) such death must have been occurred  within seven years of marriage (iii) soon before her death she was subjected  to cruelty or harassment by her husband or relative of her husband; (iv) such  cruelty or harassment must be in connection with the demand of dowry; and  (v) such cruelty is shown to have been meted out to the woman soon before  her death.

The significant words are "soon before her death". Here, it was, thus,  necessary for the prosecution to establish that the deceased must have been  subjected to cruelty or harassment by her husband or relative of her husband  soon before her death.

It is now well-settled in view of a catena of decisions of this Court  that what would constitute ’soon before her death’ depends upon the facts  and circumstances of each case.   

We would examine some of them.

In State of A.P. v. Raj Gopal Asawa and Another [(2004) 4 SCC 470],  it is stated :

"10. Section 113-B of the Evidence Act is also  relevant for the case at hand. Both Section 304-B IPC  and Section 113-B of the Evidence Act were inserted as  noted earlier by Dowry Prohibition (Amendment) Act 43  of 1986 with a view to combat the increasing menace of  dowry deaths. Section 113-B reads as follows:

"113-B. Presumption as to dowry death.\027When 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.\027For the purposes of this section ’dowry  death’ shall have the same meaning as in Section 304-B

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of the Indian Penal Code (45 of 1860)."

The necessity for insertion of the two provisions has been  amply analysed by the Law Commission of India in its  21st Report dated 10-8-1988 on "Dowry Deaths and Law  Reform". Keeping in view the impediment in the pre- existing law in securing evidence to prove dowry-related  deaths, the legislature thought it wise to insert a provision  relating to presumption of dowry death on proof of  certain essentials. It is in this background that  presumptive Section 113-B in the Evidence Act has been  inserted. As per the definition of "dowry death" in  Section 304-B IPC and the wording in the presumptive  Section 113-B of the Evidence Act, one of the essential  ingredients, amongst others, in both the provisions is that  the woman concerned must have been "soon before her  death" subjected to cruelty or harassment "for, or in  connection with, the demand for dowry". Presumption  under Section 113-B is a presumption of law. On proof of  the essentials mentioned therein, it becomes obligatory  on the court to raise a presumption that the accused  caused the dowry death. The presumption shall be raised  only on proof of the following essentials:

(1) The question before the court must be whether the  accused has committed the dowry death of a woman.  (This means that the presumption can be raised only if  the accused is being tried for the offence under Section  304-B IPC.)

(2) The woman was subjected to cruelty or  harassment by her husband or his relatives.

(3) Such cruelty or harassment was for, or in  connection with, any demand for dowry.

(4) Such cruelty or harassment was soon before her  death."

[See also Harjit Singh v. State of Punjab [(2006) 1 SCC 463]  

In Kamesh Panjiyar alias Kamlesh  Panjiyar v. State of Bihar [(2005)  2 SCC 388], this Court opined :          "12. 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 498-A IPC.  Cruelty has been defined in the Explanation for the  purpose of Section 498-A. Substantive Section 498-A  IPC and presumptive Section 113-A of the Evidence Act  have been inserted in the respective statutes by the  Criminal Law (Second Amendment) Act, 1983. It is to be  noted that Sections 304-B and 498-A 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 498-A gives the meaning of  "cruelty". In Section 304-B there is no such explanation  about the meaning of "cruelty". But having regard to the  common background to these offences it has to be taken  that the meaning of "cruelty" or "harassment" is the same  as prescribed in the Explanation to Section 498-A under  which "cruelty" by itself amounts to an offence. Under

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Section 304-B it is "dowry death" that is punishable and  such death should have occurred within seven years of  marriage. No such period is mentioned in Section 498-A.  If the case is established, there can be a conviction under  both the sections. (See Akula Ravinder v. State of A.P.1)  Period of operation of Section 113-A of the Evidence Act  is seven years, presumption arises when a woman  commits suicide within a period of seven years from the  date of marriage."

In the decision of this Court in Sudhakar and Another v. State of  Maharashtra [(2000) 6 SCC 671] whereupon Mr. R. Sundaravardan relied,  this Court opined that the proximity test is one of the tests which must be  held to be applicable for the purpose of consideration as to whether such a  statement of a deceased should be relied upon or not.  Therein, Sethi, J.,  speaking for a 3-Judge Bench of this Court held that only because allegedly  the deceased made a statement giving out circumstances in which she was  allegedly raped by two accused, which was recorded by police 11 days after  the occurrence whereas she committed suicide about 5-1/2 months  thereafter, it would not lead to the conclusion that rape upon her was the  reason for commission of her committing suicide, stating:

"11. There is no legal evidence on record that the  prosecutrix at or about the time of making the  statement had disclosed her mind for committing  suicide allegedly on account of the humiliation to  which she was subjected to on account of the rape  committed on her person. The prosecution  evidence does not even disclose the cause of death  of the deceased. The circumstances stated in  Exhibit P-59 do not suggest that a person making  such a statement would, under the normal  circumstances, commit suicide after more than  five-and-a-half months. The High Court was,  therefore, not justified in relying upon Exhibit P- 59 as a dying declaration holding that the said  statement was in series of circumstances of the  transaction which resulted in the death of the  deceased on 21-12-1994. The conviction of the  persons accused of offences cannot be based upon  conjectures and suspicions. Statement Exhibit P-59  if not treated as a dying declaration, there is no  cogent and reliable evidence which can connect  the accused with the commission of the crime\005"

The said decision is, therefore, of no assistance to the prosecution.   

The conduct of the family members of the deceased, in the  aforementioned backdrop, assumes importance.  They did not make any  complaint themselves.  It was the appellant who lodged the first information  report.  On the basis of the said first information report, an investigation  must have been commenced.  It was stated to be a case of unnatural death.   However, an enquiry was made by the Tahsildar.  Before him only for the  first time, some statements had been made by some of the prosecution  witnesses.  We have noticed hereinbefore that the members of the Panchayat  did not state anything about the cause of the death.  The Tahsildar in his  report mentioned about an injury "on the right hand side of the neck" of the  deceased.  No such injury was found in the post mortem report.  He in his  evidence as PW-14 categorically stated :

"\005In my report, I have examined some witnesses who  have not stated that Dawamani was ill-treated by her  mother-in-law..."

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His evidence in this behalf is not very clear, when he stated :

"\005I have not received any information when I examined  5 persons  who are residing in the local area that the  death might not have been happened due to dowry..."                      

He further stated :

"\005In my enquiry, Chandrakantha has stated that  Dawamani was beaten up by her husband demanding =  sovereign of gold Jhimki.  Chandrakantha went to her  sister house 10 days before the death and she was told by  her sister that she was well.  In my report, I have not  stated that Chandrakantha was told by her sister  Dawamani that she was well while weeping. When I  examined Seethapathy he has not stated that Dawamani  was ill treated and beaten up by her husband for dowry.   In the examination of Amarvathy, she has not stated that  Dawamani returned to her mother-in-law’s house for one  month and she was ill treated for dowry\005"

It, therefore, appears that no cogent evidence had been adduced by the  prosecution to establish that the appellant had demanded any dowry.    It  would bear repetition to state that according to the mother of the deceased,  PW-7 only PW-3 demanded dowry and only he was responsible for the  death of her daughter.  If that be so, he should have also been prosecuted.  

The trial court has not given any cogent reason for disbelieving the  evidence of PW-1; upon whom even the prosecution placed reliance. The  statement of  PW-1 that the deceased was short tempered girl has not been  discarded.  The statement of PW-2 that even = hour before committing  suicide the deceased behaved normally had also not been taken into  consideration.  The prosecution did not cross-examine PW-3, except making  some suggestions; although he was declared hostile.  Even the trial court did  not discard the explanation given by the accused as regard suicide of the  deceased.  It proceeded on the basis that there was no evidence either  directly or indirectly as regard harassment or cruelty committed by the  appellant against his wife and there are only circumstantial evidence  therefor.   The necessary ingredients of circumstantial evidence for holding  the appellant guilty of commission of the offence had not been deliberated  upon either by the trial court or by the High Court.  Even an attempt had  been made to show that the accused had on an earlier occasion tried to  murder the deceased but the same was found to be false by the trial court  holding that there was no evidence that the "accused had already attempted  to burn away his wife".  The trial court opined :

"\005The fact that the deceased was living with her  mother for about eight months after delivery would speak  volumes of the misunderstanding between the accused  and his wife\005."

       If it was a case of misunderstanding between the accused and the  deceased, the same would not automatically lead to the conclusion that the  appellant had committed an offence under Section 304-B of the Indian Penal  Code.  The law does not raise any such presumption

       The trial court proceeded on the basis that as if PW-3 was acting as a  messenger, although there was no evidence in this behalf.  It was held by the  trial court that ’the insistence of the PW-3 revealed that what was demanded  by PW-3 was a dowry demand’.  We fail to understand as to how a so-called  misunderstanding or a hypothesis could be made the basis for conviction.  

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       There was no reason to disbelieve that the defence version that the  cause of death was that she had insisted to go to her mother’s house but she  was not allowed,  was plausible.

       Having regard to the peculiar features of the case, we are of the  opinion that demand of dowry or any harassment being the cause for the  death of the deceased, cannot be said to have been established beyond all  reasonable doubt.

       For the reasons aforementioned, the impugned judgment cannot be  sustained, which is set aside accordingly.  The appeal is allowed.  The  appellant shall be set at liberty forthwith unless wanted in connection with  any other case.