IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 5TH DECEMBER, 2008 / 14TH AGRAHAYANA, 1930 CRL.A.No. 1466 of 2006(C) (SC.56/1999 of ADDL. SESSIONS COURT (ADHOC), THALASSERY) .................... APPELLANT/ACCUSED: --------------------------- PUTHUPPALLIL SHAJI ALIAS S/O. MATHEW, AGED 36 YEARS, AGRICULTURIST, RESIDING AT THOTTAMKAVALA, PAYAM AMSOM, EDOOR, THALASSERY TALUK, KANNUR DISTRICT. BY ADV. SRI.R.SURENDRAN RESPONDENT/COMPLAINANT: ------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM, KOCHI-31. PUBLIC PROSECUTOR SMT.K.L.LAKSHMI RANI. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10/11/2008, ALONG WITH CRA NO. 2082 OF 2006, THE COURT ON 05/12/2008 DELIVERED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.A.Nos.1466 & 2082 of 2006 --------------------------------------------- Dated this the 5th day of December, 2008 J U D G M E N T Crl.A.No.1466 of 2006 is filed by the sole accused in Sessions Case No.56 of 1999 on the file of the Additional Sessions Court, Adhoc-I (Fast Track Court-I), Thalassery challenging the conviction and sentence imposed against him by the said court as per its judgment dated 12.7.2006 under Section 304B of the Indian Penal Code (for short ' the I.P.C.'). Crl.A.No.2082 of 2006 is an appeal preferred by the appellants herein who are prosecution witness Nos.1,6,7 and 8 in S.C.No.56 of 1999 on the file of the Additional Sessions Court Adhoc-I (Fast Track Court-I), Thalassery challenging the complaint filed against them under Section 195 read with Section 340 of the Code of Criminal Procedure (for short ' the Cr.P.C'). on the allegation that they gave false evidence suppressing material facts in the above sessions case and thereby committed the offence punishable under Section 193 I.P.C. 2. As Crl.A.No.2082 of 2006 is originated against the complaint filed at the instance of the Additional Sessions Judge, Adhoc-I, Thalassery connected with the judgment in S.C.No.56 of 1999 which is under challenge in Cr.A.No.1466 of 2006 at the Crl.A.Nos.1466 & 2082 of 2006 :-2-: instance of the accused and as both the appeals are interconnected, the same were heard together and being disposed of by this common judgment. 3. For convenience, first of all I shall deal with Crl.A.No.1466 of 2006. 4. As pointed out earlier, this appeal is preferred by the accused challenging his conviction and sentence imposed by the court of Additional Sessions Judge (Adhoc-I), Fast Track Court-I, Thalassery in S.C.No.56/1999.The allegation of prosecution is that the accused married the deceased Laly on 6.6.1994 and while they were living as man and wife in her matrimonial house, the accused tortured her mentally and physically demanding more dowry and due to the continuous intolerable torture, the said Laly committed suicide at the instance of the accused on 30.12.1995 at about 7 a.m. by consuming poison and thus, according to the prosecution, the accused has committed the offence punishable under Section 304B I.P.C. Initially, Crime No.357 of 1995 was registered in the Iritty Police Station under the caption of 'unnatural death' on the basis of the statement given by CW-1 and subsequently, investigation was conducted by CWs.34 and 35 and during the course of investigation, the Crl.A.Nos.1466 & 2082 of 2006 :-3-: section was altered to Section 304 B I.P.C., on the basis of the report filed by CW34. On completing investigation, CW35 laid the charge sheet before the Judicial First Class Magistrate Court, Mattannur where C.P.No.74 of 1998 was instituted and the learned Magistrate by his order dated 22.10.1998 in the above committal proceedings committed the case to the Sessions Court from where the case was made over to the trial court for disposal. On appearance of the accused, after hearing the prosecution as well as the defence, a formal charge under Section 304B I.P.C. was framed which was read over and explained to the accused and he pleaded not guilty which resulted in further trial during which Pws.1 to 22 were examined and Exts.P1 to P4 were marked on the side of the prosecution. Material objects such as Mos.1 to 4 were identified and marked during the trial. On completing the prosecution evidence, the accused was questioned under Section 313 of Cr.P.C. and when the incriminating circumstances, which brought out during the prosecution evidence, put to him, he denied the same. During the defence evidence, the accused himself was examined as DW1 and besides him, Dws.2 to 4 were examined and Exts.D1 to D5 were marked as defence exhibits. On the basis of the rival Crl.A.Nos.1466 & 2082 of 2006 :-4-: contentions and pleadings, the trial court formulated two issues for its consideration and finally found that the accused/appellant was guilty under Section 304B I.P.C. and accordingly, he was sentenced to undergo imprisonment for seven years and set off was allowed. It is the above conviction and sentence challenged in this appeal. 5. I have heard Mr.R.Surendran, learned counsel appearing for the appellant and also Smt.K.L.Lakshmi Rani, the learned Public Prosecutor. 6. Originally, Ext.P1(a) F.I.R in Crime No.357 of 1995 of Iritty Police Station was registered under the caption 'unnatural death' on the basis of Ext.P1 statement given by PW-1 to PW- 13, the A.S.I. of the Iritty Police Station. PW1 stated before the A.S.I. that he went to the Police Station to lodge the information regarding the suicide committed by Laly, W/o.Shaji Mathew. According to the First Information Statement, on 29.12.1995 evening, the sister of the accused and her husband came in the house of the accused as guests and on that day, along with them, the deceased Laly had gone for a cinema and as the deceased went for cinema, without obtaining permission from the accused, Crl.A.Nos.1466 & 2082 of 2006 :-5-: there was a quarrel between the deceased and the accused and at about 7 a.m. on the next day, i.e. on 30.12.1995, Laly committed suicide by consuming poisonous pesticide which was kept for treatment of the plantain and the accused removed her to the hospital in a lorry driven by one Jose firstly to Eduthala and therefrom, in a jeep bearing Registration No.KL13 B 2113 to the Government Hospital, Iritty. Immediately thereafter, the said Laly was taken to the Kannur Government Hospital and from there to A.K.G. Hospital and from the A.K.G.Hospital to Kozhikode Medical College Hospital. According to PW1, as per the F.I.statement, the marriage between the accused and the deceased had taken place just before one and a half years and they were quarrelling frequently. According to him, the accused questioned and quarrelled with her for going cinema without his permission. When PW-1 was examined, he admitted the signature in Ext.P1 F.I.statement and stated that at 2 p.m. on a day in December 1995, he was told by his wife that Laly was admitted in A.K.G.Hospital, Kannur and when he was about to go, he got information that Laly was taken to Medical college Hospital, Kozhikode and accordingly, he reached there and came to know that Laly expired and he returned to his home on the Crl.A.Nos.1466 & 2082 of 2006 :-6-: same day and the next day morning at 8 a.m. on 31.12.1995, he went to the Police Station, and lodged Ext.P1 statement. As he disowned 161 statement with respect to the reason for the death of the said Laly, he was declared as hostile. 7. Other main witnesses examined are PWs.2,3 and 5 who are the brothers of the deceased. Besides the brothers, sister of the deceased was also examined as PW4 and her sister- in-law was examined as DW3. When Pws.2 to 5 were examined, they deposed in favour of the prosecution saying that the deceased told them that the accused was harassing her for not giving the balance amount of dowry. The other three witnesses namely, Pws.6,7 and 8 were turned hostile to the prosecution. PW6 is the brother of the father of the accused and PW7 is the wife of PW6 and PW8 is their daughter. According to the court below, they turned hostile deposing that they did not know anything about the alleged torture of the deceased Laly by the accused. In this case, the statements of Pws.6 to 8 were recorded under Section 164 of the Code of Criminal Procedure by the Judicial First Class Magistrate, Kuthuparamba who was examined as PW10 in this case. During their examination in the present case, they admitted the statement given before PW10, Crl.A.Nos.1466 & 2082 of 2006 :-7-: but according to them, they gave such statement due to the compulsion and threat from the part of the Police. PW-9 is the witness to Ext.P16 inquest report. Mos.1 to 4 are the dresses of the deceased. When PW10 was examined, he had stated that he had complied with all formalities and ensured that the witnesses were giving statement voluntarily and according to their free will. Ext.P35 is the certificate issued by PW11 Assistant Surgeon of Kannur District Hospital who examined the deceased at about 10.30 p.m. on 30.12.1995. The autopsy on the body of the deceased was conducted by PW12 and he issued Ext.P36 post mortem certificate. PW13 who registered the F.I.R. also visited the place of occurrence and prepared the scene mahazar which is marked as Ext.P37. PW14 is a witness to the seizure mahazar Ext.P11, by which the letters sent by the deceased were seized. Exts.P2,P4,P5, and P7 to P10 were letters seized by the Police. Ext.P15 is the seizure mahazar prepared for the seizure of wedding photos of the accused as well as the deceased. There are certain other witnesses and documents as prosecution exhibits to prove the marriage between the accused and the deceased which are not relevant, according to me, for the disposal of this appeal since the marriage is not disputed by the Crl.A.Nos.1466 & 2082 of 2006 :-8-: accused. PW19 is the husband of the elder sister of the deceased who signed Ext.P3 as the witness. PW20 is the Tahsildar of the Thalassery Taluk who prepared Ext.P16 inquest report. PW21 is the Dy.S.P., Kannur who conducted the investigation and PW22 is the successor of PW21, who completed the investigation and laid the charge. There are certain other documents produced by the prosecution which, according to me, assume much importance and relevance in the factual background of the case and therefore, I shall refer those documents. As indicated earlier, certain letters written and sent by the deceased to her brothers were seized by the Police. The details are as follows:- Ext.P2 is a letter written by the deceased to PW2 and Ext.P3 is the mahazar for the seizure of the said letter. Ext.P4 is another letter sent by the deceased to PW3 and Ext.P5 is the letter sent to his wife by the deceased. Those two letters are seized as per Ext.P6 mahazar. Exts.P7 to P10 are the letters sent by Laly to PW4 and Ext.P11 is the mahazar for seizure of those letters. Exts.P17 to P34 are the contradictions in the statement given by Pws.6 to 8 with respect to the 164 statement recorded by PW10 and the same are proved through him. Crl.A.Nos.1466 & 2082 of 2006 :-9-: Ext.P39 is the report submitted by PW21 for altering the section. Exts.P40 to 43 is the contradictions in the statement of Pws.1,7,9 and 10. 8. The defence took a stand that the deceased Laly committed suicide because of her despondency as the accused was incapable to give birth to a child and also the accused adduced evidence to show her temperament. DW1 is the accused himself who mounted to the box and gave evidence to that effect. DW2 is the Assistant Surgeon of the Government Hospital, Thalassery who issued Ext.D2, the result of the examination of the serum of the accused. DW3 is the wife of the brother of the deceased who was examined to prove the letter sent by herself to the accused which is marked as Ext.D4. DW4 is one of the friends of the deceased Laly and Ext.D5 is the letter sent by her to the deceased. . Exts.D1 and D3 are the pregnancy test results of the deceased. 9. After analysing the above evidence and the facts and circumstances involved in the case, the trial court was of the opinion that the cardinal point to be looked into is regarding the conduct of the accused and also of the opinion that in the absence of evidence of eye witnesses in a case like this, the Crl.A.Nos.1466 & 2082 of 2006 :-10-: court has to rely on the circumstances and other witnesses. The trial court considered the legal question involved in the case in the following manner as to “whether the deceased Laly was subjected to cruelty or harassment by the accused for or in connection with any demand for dowry and if it is shown that the accused had harassed the deceased demanding dowry before her death, a presumption can be drawn under Section 113B of the Indian Evidence Act, 1872 (for short 'the Act') that the accused caused the dowry death which comes under Section 304 B of the I.P.C.”. On the basis of the available evidence and materials, according to the trial court, the harassment meted out against the deceased was proved and therefore, it was for the accused to show that the death was not due to the harassment or the harassment was not for or in connection with the demand for dowry. Finally, the court found that in the present case, from the evidence of Pws.2 to 5 and the letters sent by the deceased Laly, it is obvious that she was tortured and harassed by the accused demanding dowry which led to the death. Thus, it was accordingly found that the accused Crl.A.Nos.1466 & 2082 of 2006 :-11-: has committed the offence punishable under Section 304B of I.P.C. 10. Learned counsel for the appellant submits that the prosecution has miserably failed to show that the death was due to the harassment connected with demand for dowry. According to the learned counsel, the marriage between the deceased and the accused was settled or has taken place not on the basis of any dowry demanded or fixed. According to the learned counsel, the fixation of Rs.2 lakhs, the payment of one and a half lakhs rupees as cash and ornaments and offer to pay the remaining Rs.50,000/- will not come within the purview of dowry. On the other hand, it can be treated only as the share of the deceased which she is entitled to get from the family property. It is also pointed out by the learned counsel that absolutely there is no evidence to show any demand raised by the accused for the dowry either the full amount or balance towards the dowry and also there is no iota of evidence to show that the deceased Laly was subjected to harassment demanding either for the balance dowry amount or for more dowry amount. Going by the evidence of prosecution, viz., the letters written by the deceased itself, according to the learned counsel, it can be seen that her only Crl.A.Nos.1466 & 2082 of 2006 :-12-: agony is with respect to the habitual consumption of liquor by the accused. Learned counsel also pointed out that even going by the prosecution case itself, the dispute between the accused and the deceased has been settled at the intervention of the brothers on 24.12.2005 through dialogue with the accused and thus after settling the issue, both the deceased and accused were taken to the house of the accused by Sherli. It is thereafter, the deceased committed suicide on 30.12.1995. Therefore, according to the learned counsel, absolutely there is no evidence to show that soon before the death of Laly, she was subjected to cruelty or harassment by the accused in connection with any demand for dowry. Thus, according to the learned counsel, in the absence of any concrete evidence or reliable materials, to show that Laly has committed suicide because, before such death, she was subjected to cruelty or harassment in connection with any demand for dowry, no statutory presumption under Section 113B of the Act is available in favour of the prosecution and against the accused. Thus, according to the learned counsel, even if it is admitted as proved that the deceased was subjected to any harassment or cruelty, the offence will not come under Section 304B of I.P.C. and without conceding, the learned counsel Crl.A.Nos.1466 & 2082 of 2006 :-13-: submits that at the most, what was attracted is only under Section 498A of the Indian Penal Code. Therefore, according to the learned counsel, the conviction and the consequent sentence under Section 304B of I.P.C. is liable to be set aside. 11. Per contra, Smt.Lakshmy Rani, the learned Public Prosecutor submits that the evidence let in by the prosecution categorically proved that there was a settlement regarding the dowry amount connected with the marriage between the accused and the deceased and out of the two lakhs rupees so settled, only one and a half lakhs of rupees was given to the accused by way of cash and ornaments and the accused was continuously harassing the deceased demanding for the balance dowry amount of Rs.50,000/-. It is also pointed out by the learned Public Prosecutor that demanding for the balance amount towards the dowry and more money from the house of the deceased, the accused was frequently quarrelling with the deceased after consuming liquor and as a result of such dispute and quarrel, on several occasions, she had to leave her matrimonial house, but she was again sent back with the company of the accused and the accused continued his cruel behavior to the deceased demanding more money including the Crl.A.Nos.1466 & 2082 of 2006 :-14-: balance dowry amount. According to the Prosecutor, the prosecution has tried to adduce evidence by examining Pws.6,7 and 8, the persons who are connected with and more concerned with the matrimonial home of the deceased and as a precaution, their statements were recorded under Section 164 of the Cr.P.C. and the evidence thus adduced by the prosecution would clearly show the harassment meted out against the deceased by the accused. According to her, besides the oral evidence, the prosecution has also produced certain contemporaneous documents namely, the letters written by the deceased addressing her brothers pointing out the harassment and cruel behavior of the accused shown to her and threatening connected with the demand for dowry. The learned Public Prosecutor further submits that by adducing the evidences, both oral and documentary, the prosecution has succeeded in establishing the harassment meted out by the accused against the deceased connected with the demand for dowry and therefore, in view of Section 113B of the Act, a statutory presumption can be drawn that the death of Laly was due to the dowry demand from the part of the accused. It is also the case of the Public Prosecutor that as the prosecution has succeeded in establishing the harassment Crl.A.Nos.1466 & 2082 of 2006 :-15-: from the part of the accused, it is for the accused to show and establish that the death is not a dowry death, but for some other reason, and in the present case, though such attempt was made, it was failed miserably. Hence, according to the Prosecutor, the trial court had correctly found that the accused was guilty of the offence under Section 304B of the I.P.C. and a reasonable punishment was imposed and therefore, there is no illegality so as to interfere with such judgment by this Court by exercising the appellate jurisdiction. 12. I have carefully considered the contentions advanced by learned counsel for the appellant in Crl.A.No.1466 of 2006 as well as the learned Public Prosecutor and also perused the materials and evidence on record. 13. In the present case, the marriage between the accused and the deceased is admitted and it is also beyond doubt that the deceased committed suicide within seven years from the date of their marriage. Section 304B of I.P.C. deals with dowry death which runs as follows:- “304B. Dowry death.-- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal Crl.A.Nos.1466 & 2082 of 2006 :-16-: 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.” In the light of the facts which are beyond dispute as mentioned above, what is to be established by the prosecution is that soon before the death of Laly, she was subjected to cruelty or harassment by the accused in connection with any demand for dowry. 14. In this juncture, it is also relevant to examine the amendment brought in the Indian Evidence Act, 1872 by incorporating with Section 113B. “113B. Presumption as to dowry death.-- When the question is whether a person has committed the dowry death of a woman and it Crl.A.Nos.1466 & 2082 of 2006 :-17-: 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.-- For the purposes of this section, “dowry death” shall have the same meaning as in section 304B, of the Indian Penal Code, (45 of 1860)” By incorporating such a provision, it is the obligation of the court to draw a presumption against a person under Section 113B of the Act that such person had caused the dowry death provided if it is shown that soon before the death of a woman, such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry. So a conjoint reading of Section 304B of the I.P.C. and Section 113B of the Act would show in the present case, the prosecution has to show and establish that the accused had subjected the deceased Laly to cruelty or harassment soon before her death for or in connection with any demand for dowry. 15. The above burden of the prosecution is tried to discharge through the oral evidence of Pws.2 to 8. Besides the oral evidence of the above witnesses, the prosecution has also Crl.A.Nos.1466 & 2082 of 2006 :-18-: relied upon certain documents to prove its case. 16. The learned counsel on the basis of the decision of the supreme Court in Appasaheb v. State of Maharashtra (2007 (4) KLT 463)(SC) submits that the main demand for money on account of financial stringency or for meeting urgent domestic expenses will not come within the purview of dowry. According to the learned counsel, the prosecution has not established that there was a demand for dowry and the same was settled as a condition precedent for solemnization of the marriage. However, according to the learned counsel, the documents produced in this case are not sufficient to show that there was a dowry demand and a settlement. From the prosecution evidence, especially PW2 has stated that the dowry was fixed as two lakhs rupees and a sum of Rs.1,50,000/- was given to the father of the accused from the date of betrothal and the specific agreement was that remaining Rs.50,000/- will be paid after two years. It is also stated that about 30 sovereign ornaments were given to Laly and the ornaments were bought from the dowry amount of one and a half lakhs rupees. PW2 also deposed that he received a letter dated 1.12.1995 written by deceased Laly mentioning about the cruelty faced by