BAIL SLIP --- The Accused No.1 & 2 namely Santhanaswamy, S/o.Alaxandar and Raginameri, W/o.Alaxandar was directed to be released on bail as per the order of the Court dated 18.7.2002 and made in Crl.M.P.No.6303/02 in C.A.No.999/02. IN THE HIGH COURT OF JUDICATUE AT MADRAS DATED: 28.01.2010 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Crl.A.No.999 of 2002 1. Santhanaswamy 2. Raginameri .. Appellants/Accused Vs. The Union Territory of Pondicherry, Rep. by Superintendent of Police, Karaikal. .. Respondent/Complainant Criminal Appeal against the judgment, dated 27.6.2002 in S.C.No.3 of 2001 on the file of the Additional Sessions Court, Karaikal. For appellants : Mr.S.Sounthar For respondent : Mr.R.Thangavel, Govt. Advocate (Pondicherry) JUDGMENT The Criminal Appeal arises out of the judgment, dated 27.6.2002 in S.C.No.3 of 2001 on the file of the Additional Sessions Court, Karaikal, whereby the appellants/A.1 and A.2 were convicted for the offence under Section 498-A IPC read with 34 IPC and each sentenced to undergo two years' rigorous imprisonment and to pay a fine of Rs.1,000/- each, in default, to undergo three months' imprisonment, also convicted for the offence under Section 304-B IPC and each sentenced to undergo seven years' rigorous imprisonment and also convicted for the offence under Section 4 of the Dowry Prohibition Act read with Section 34 IPC and each sentenced to undergo six months' rigorous imprisonment and to pay a fine of Rs.500/- each, in default, to undergo 15 days rigorous imprisonment. The sentences https://hcservices.ecourts.gov.in/hcservices/ imposed on the appellants were directed to run concurrently. 2. The case of the prosecution is as follows: (a) The first appellant/A.1 is the husband of the deceased Elizabeth Rani. The second appellant/A.2 is the mother-in-law of the deceased. P.Ws.1 and 2 are the parents of the deceased. (b) The marriage between A.1 and the deceased was celebrated on 19.6.1996. Out of the lawful wedlock, they have a female child. (c) P.Ws.1 to 4 have deposed about the marriage. There was a dispute in respect of dowry given by P.Ws.1 and 2 in respect of motor bike, which was pacified by both side villagers. After two months, the deceased went to her parents' house and demanded the motor bike stating that it would be more helpful for her husband for going to office. After then, she gave birth to the child. At that time, she was not presented with gold minor chain. 15 days prior to the incident, the deceased went to a marriage, where P.Ws.1 to 4 questioned about her injury on her face and at that time, the deceased told that because of not giving motor bike, she was harassed by her husband and in-laws. After 15 days, they came to know that P.Ws.1 and 2's daughter, the deceased, committed suicide by setting herself ablaze with kerosene. (d) On 17.7.1998, when A.1 went to Office and A.2 who is none other than the mother-in-law of the deceased, went for thithering cattle and when A.2 returned at about 5 p.m., she questioned the deceased about paddy. The deceased shown the paddy and since there was only lesser quantity of paddy, A.2 scolded the deceased. On the same night, after giving food to others, the deceased committed suicide as indicated above. (e) P.W.5 who knows the accused, turned hostile. (f) P.Ws.6 and 7 who are neighbours and know the accused, have stated that the deceased committed suicide. (g) P.W.9 who resides near the house of the accused, has deposed that at 10.30 p.m., on the request of A-1, he has taken a vehicle to Thenur Hospital. P.W.9, A.1, A.2 and others took the deceased to Thenur Hospital. (h) Subsequently, P.W.10 Dr.Annie B.Juliet examined the deceased in the Community Centre Hospital at Thirunallar and issued Ex.P-2 accident register in respect of the deceased and she was referred to Government Hospital, Karaikal, where P.W.11 Dr.Ravichandran gave treatment to the deceased. At that time, P.W.15 Head Constable went to the hospital and recorded the statement from the victim-deceased, which is marked as Ex.P-10. https://hcservices.ecourts.gov.in/hcservices/ (i) In pursuance of the same, P.W.15 Head Constable registered a case in Cr.No.32 of 1998 for the offence under Section 309 IPC. He examined the witnesses. P.W.11 Dr.Ravichandran sent Ex.P-3 intimation to the Police that the deceased died at 7 p.m. on 18.7.1998. (j) P.W.15 Head Constable conducted inquest and Ex.P-9 is the inquest report. Intimation was sent to P.W.14 Tahsildar-cum-Executive Magistrate. After receipt of the FIR, since the deceased died within seven years of her marriage, P.W.14 proceeded to Government Hospital and conducted enquiry. Ex.P-7 is the inquest report conducted by P.W.14. (k) P.W.17 the then Station House Officer and P.W.18 the then Superintendent of Police, took up the matter for investigation. Since P.W.18 was not well-versed in Tamil, with the assistance of P.W.17, he conducted the investigation. P.W.17 prepared Crime Details Form, which is marked as Ex.P-1. He took steps through P.W.13 Photographer to take photographs, which are marked as Ex.P-5 and the negatives are Ex.P-6. He examined the witnesses. He went to the place of occurrence and seized M.Os.1 to 3 in the presence of P.W.8 under Ex.P-1 Crime Details Form. (l) After the inquest, on the basis of the requisition, P.W.12 Dr.Narasimha Murthy conducted autopsy and issued Ex.P-4 post-mortem certificate, wherein the following injuries are stated: "External examination (including external injuries): Deceased is an adult female aged about 23 yrs. of moderate built and nourishment. Height-160 cms. Scalp hair was black in colour-55 cm long. Eyes: closed, Pupils dilated, conjunctiva pale. Cornea clear. Rigor mortis well established and retained all over the body. Singeing of frontal hair portion present. All external orifices normal. Superficial external burns dupuytren's 11..º to 111º seen all over the body except scalp, face, neck portions of chest palms and soles Approximately 95% burns. Erythema, charring and singeing of body hair present. Internal examination: Head (scalp, skull, meninges, brain, spinal cord) Scalp | skull | Intact. Meninges | https://hcservices.ecourts.gov.in/hcservices/ Brain intact and pale. Neck, thoracic wall, pleura, lungs, heart Neck structures intact. Soot particles present in trachea and principle bronchus. Lungs intact and congested on cross section frothy fluid blood exudate present. Heart intact, contained black colour jelly postmortem clots. Abdomen and pelvis Stomach intact, contained semi digested food materials. No unusual smell. Liver spleen, kidneys intact and pale. Intestines contained gas and contents. Uterus intact and empty. Description in details (if any) Contact. Lesions are fresh and antemortem in nature. Cause of death "Death is due to hypovolaemia shock as a result of burns sustained." (m) After autopsy, the Police handed over the body to the relatives of the deceased. P.W.18 the then Superintendent of Police completed the investigation. Since P.W.18 was transferred, P.W.19 Superintendent of Police took up the matter for further investigation. He examined the witnesses and concluded the investigation and filed the charge sheet against the accused for the offences under Sections 498-A and 304-B IPC read with Section 4 of the Dowry Prohibition Act. 3. The trial Court questioned the accused under Section 313 Cr.P.C. and put forward incriminating materials against the accused. The accused denied the charges. 4. During the course of trial, P.Ws.1 to 19 were examined, Exs.P-1 to P-10 were marked and M.Os.1 to 3 were produced. 5. Considering the oral and documentary evidence, the trial Court found the accused guilty of the offences and convicted and sentenced them as indicated above. Challenging the same, the present Criminal Appeal is preferred by the appellants/A.1 and A.2. 6. Learned counsel for the appellants-accused would put forth the following points: (i) Ex.P-10 which is the dying declaration of the deceased, has not been considered by the trial Court. https://hcservices.ecourts.gov.in/hcservices/ (ii) Section 161 Cr.P.C. statement of the vital witnesses P.Ws.1 to 3 were recorded on 16.7.1999 after one year of the occurrence. Initially P.W.15 Head Constable recorded Section 161 Cr.P.C. statement of P.Ws.2 and 3, which was suppressed by the prosecution. (iii) There is a contradiction between the oral evidence of P.Ws.1 and 2 in respect of demand of dowry. (iv) P.W.14 Tahsildar-cum-Executive Magistrate has not spoken about the harassment of the accused. (v) Even Ex.P-10 statement of the deceased, has to be treated as dying declaration as per Section 32 of the Indian Evidence Act. In Ex.P-10 statement, it was stated that there was only paddy quarrel and in respect of not taking care of the family affairs, which does not amount to harassment. It is only day-to-day activity. That has not been considered by the trial Court. The case has been foisted. (vi) Since P.Ws.1 to 4 demanded jewels from A.1 and since A.1 refused to return the jewels as he is having one female child, a false case has been foisted against the accused and charge sheet has been filed against the accused. (vii) Enquiry has been conducted one year after the incident. Learned counsel for the appellants relied upon the following decisions in support of his submissions: (a) 1988 (3) SCC 609 (Kehar Singh Vs. State (Delhi Administration); (b) 2005 (3) SCC 689 (Jagjit Singh Vs. State of Punjab) and (c) MANU/SC/0001/2010 (Gangula Mohan Reddy Vs. State of Andhra Pradesh). Learned counsel for the appellants prayed for acquittal of the appellants/A.1 and A.2. 7. Learned Government Advocate (Pondicherry) appearing for the respondent-Police, submitted that the best persons to speak about the incident are the parents of the deceased. P.Ws.1 and 2 have deposed about the demand of dowry. That has been corroborated by the evidence of P.Ws.3, 4 and 6, who are the neighbours of the accused. The ingredients of dowry have been proved by the prosecution beyond reasonable doubt. Learned Government Advocate further submits that 15 days prior to the incident, when P.Ws.1 to 4 and 6 met the deceased in a marriage function, the deceased disclosed that she was harassed for not bringing motor bike. So, the ingredients of Section 304-B IPC are made out. Learned Government Advocate relied on the decisions of the Supreme Court reported in 2006 (1) SCC (Cri) 129 (Satbir Singh https://hcservices.ecourts.gov.in/hcservices/ Vs. State of Haryana) and 2006 (1) SCC (Cri) 134 (Devinder Singh Vs. State of Punjab) and prayed for confirming the conviction and sentence imposed on the appellants/accused and for dismissal of the Criminal Appeal. 8. The first appellant/A.1 is the son of the second appellant/A.2. The deceased was the daughter of P.Ws.1 and 2. The marriage between A.1 and the deceased was performed on 19.6.1996. Out of their lawful wedlock, the deceased gave birth to a female child. The date of occurrence is 17.7.1998. 9. The prosecution has to prove the ingredients of Section 304-B IPC relating to dowry death. Section 304-B IPC reads as follows: "Section 304-B: 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." 10. The ingredients of Section 304-B IPC have to be proved by the prosecution to find the accused guilty of the offence under Section 304-B IPC. It is true that unnatural death has taken place within seven years of the marriage of the deceased. As per the evidence of P.W.12 Doctor and Ex.P-4 post-mortem certificate, the death is not natural and it is by way of suicide. The next ingredient of Section 304-B IPC is as to whether the death was due to demand of dowry, that too soon prior to the death, which has to be proved by the prosecution beyond reasonable doubt. The trial Court has come to the conclusion that the appellants are guilty of the offences under Section 304-B IPC and Section 4 of the Dowry Prohibition Act. 11. At this juncture, it is appropriate to consider the meaning of dowry. Even though the 'dowry' has not been defined in IPC, Section 2 of the Dowry Prohibition Act defines 'dowry', which reads as follows: https://hcservices.ecourts.gov.in/hcservices/ "Section 2. 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 mahar in the case of persons to whom the Muslim personal law (Shariat) provides. Explanation I.--omitted by Act 63 of 1984. Explanation II.--The expression 'valuable security' has the same meaning as in Section 30 of the Indian Penal Code (45 of 1860)." 12. It has to be decided as to whether there was demand of dowry. P.Ws.1 and 2 who are none other than the parents of the deceased and P.Ws.3 to 6, who are neighbours of the accused, have been examined by the prosecution. P.W.5 turned hostile. P.Ws.1, 2, 3, 4 and 6 have deposed about the demand of dowry. 13. At this juncture, it is appropriate to consider the decision relied on by learned Government Advocate, reported in 2006 (1) SCC (Cri) 129 (Satbir Singh Vs. State of Haryana), wherein, it was held as follows: "5. Section 304-B reads as under: "304-B(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." Section 304-B as quoted above, clearly shows that in order to bring the offence within the purview of Section 304-B, the following ingredients are to be fulfilled: https://hcservices.ecourts.gov.in/hcservices/ (a) that the death of a woman is caused by any burns or bodily injury occurs other than in normal circumstances, (b) that such death must have occurred during the seven years of her marriage, (c) soon before her death, she must be subjected to cruelty or harassment by her husband or any relative of her husband, (d) such harassment by the husband, or relative must be in connection with any demand for dowry. Once the ingredients are fulfilled the death shall be presumed as dowry death. The husband and such other relatives shall be deemed to have caused her death. 6. Section 304-B was inserted in the Penal Code by Act 43 of 1986 with effect from 19.11.1986. In consequence thereof, another Section 113-B was inserted in the Evidence Act by Act 43 of 1986 with effect from 1.5.1986. Section 113-B of the Evidence Act deals with the presumption of dowry death which reads as under: "113-B. 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 had 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." 7. Undisputedly in this case the death of a woman has occurred during seven years of her marriage. It is also stated that, at the time of marriage the dowry had been paid according to the capacity of the complainant. However, subsequent to the marriage, the deceased Shanti was harassed for not bringing more dowry. Ten days prior to the incident, the deceased had come to the complainant's place and stated that her in-laws were demanding Rs.7000 as they wanted to purchase a buffalo. She had further stated that till she brings the desired money, she would not be allowed to reside in her in-law's place. She died in the intervening period of 13.6.1989/14.6.1989 with bodily injury occurring otherwise than under normal circumstances. In our view, the prosecution has been able to establish the ingredients as enjoined under Section 304-B of the Penal code. Once the prosecution is able to establish the aforesaid ingredients, the presumption against the accused starts as enjoined under Section 113-B of the Evidence Act. Of course, it is a https://hcservices.ecourts.gov.in/hcservices/ rebuttable presumption and the onus lies on the accused against whom the presumption lies to discharge it. On this aspect the laws are no more res integra. In a catena of decisions, this Court has repeatedly held that once these ingredients of Section 304-B IPC have been established by the prosecution, the onus lies on the accused to rebut the presumption under Section 113-B of the Evidence Act. Avoiding multiplicity, we may refer to the decision rendered by this Court in the case of State of Karnataka v. M.V.Manjunathegowda (2003 (2) SCC 188 : 2003 SCC (Cri) 467) SCC at pp.189-90, this Court said that: "In order to establish the offence under Section 304-B IPC the prosecution is obliged to prove that the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances and such death occurs within 7 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. Such harassment and cruelty must be in connection with any demand for dowry. If the prosecution is able to prove these circumstances then the presumption under Section 113-B of the Evidence Act will operate. It is a rebuttable presumption and the onus to rebut shifts on the accused. The defence of the accused was a total denial. Therefore, the presumption as to dowry death envisaged under Section 113-B of the Evidence Act remains unrebutted." 14. Learned Government Advocate also relied upon the decision reported in 2006 (1) SCC (Cri) 134 (Devinder Singh Vs. State of Punjab), wherein, the Supreme Court held as follows: "In the present case, all the ingredients of Section 304-B are satisfied except that there is argument about the last ingredient about cruelty or harassment in connection with demand for dowry. It is a case of death of a woman, caused by burns i.e. it is an unnatural death and the death has taken place within seven years of the marriage. Thus, the argument in the present appeal centres around only the last ingredient i.e. whether there was cruelty or harassment on account of demands for dowry. The deceased wife who could be the best person to speak about such demands; as the demands were allegedly made to her, is no more, the only remaining evidence can be that of the parents of the deceased to whom she would be supposed to mention about such demands in order to ascertain if they could meet the same. https://hcservices.ecourts.gov.in/hcservices/ From the facts and circumstances the conclusion is inescapable that the accused made demands for dowry from the deceased and made her life miserable. It became unbearable for her to face the accused persons in such circumstances and she had to ultimately take her life. The High Court has affirmed the findings of the Sessions Court. There is no reason to differ with the view taken by the courts below." 15. At this juncture, learned counsel for the appellants-accused would contend that on the basis of the statement given by the deceased, Ex.P-10 has been registered and that Ex.P-10 set the law in motion. The trial Court has not considered Ex.P-10, which was recorded on 18.7.1998. The deceased died on 18.7.1998 at 7 p.m. That has not been considered by the trial Court. As per the decisions of the Supreme Court reported in 2006 (1) SCC (Cri) 129/134 (cited supra), the statement given by the deceased plays vital role for deciding as to whether there was demand of dowry. 16. Before considering this aspect, this Court has to decide whether Ex.P-10 is admissible in evidence and whether it can be treated as a dying declaration of the deceased. It is pertinent to note that the alleged occurrence has taken place on 17.7.1998 at about 10.30 p.m. The deceased was examined by P.W.10 Doctor at Thirunallar Community Health Centre and Ex.P-2 Accident Register was issued therein. She was examined by P.W.10 Doctor on 17.7.1998 at 11 p.m. and she was brought by her husband, A.1. The nature of injury has been mentioned as 90% burns. In Ex.P-2, it is further stated that, "alleged to have sustained burns by pouring kerosene...". Since the deceased was subsequently referred to Government Hospital, Karaikal, P.W.11 Doctor's evidence plays vital role to consider the veracity of Ex.P-10 statement of the deceased. P.W.11 Doctor at Karaikal Government Hospital deposed that at the time of recording the complaint by P.W.15 Head Constable, the deceased was in a fit state of mind to give the statement. So, considering the evidence of P.Ws.11 and 15, I am of the opinion that Ex.P-10 statement of the deceased, is valid in law and the same is admissible in evidence. Since the deceased died on 18.7.1998 at 7 p.m., as per Ex.P-3 intimation given by P.W.11 Doctor, I am of the opinion that Ex.P-10 statement of the deceased, is a dying declaration as per Section 32 of the Indian Evidence Act. So, the trial Court has committed error in not considering Ex.P-10. 17. At this juncture, learned counsel for the appellants-accused culled out some portion of Ex.P-10 statement of the deceased (dying declaration) and submitted that the deceased herself has deposed that there was no demand of dowry either by the in-laws or by her husband or harassment. Relevant portion of Ex.P-10 reads as follows: https://hcservices.ecourts.gov.in/hcservices/ @//// ehnd thH;f;ifapy; btWg;g[ mile;jjhy; ehnd vd; kPJ kz;bzz;id Cw;wp tPl;oy; ,Ue;j btz;fy tpsf;fhy; jP itj;J jw;bfhiy bra;a Kaw;rp bra;njd;/ nkw;fz;l tpgu';fis vd;id vd; fztnuh. khkpahnuh kw;w cwtpdh;fnsh tujl;rid nfl;L bfhLik bra;jjpy;iy/ ehd; brhy;y brhy;y mg;gona eP';fs; vGJtPh;fs; mg;nghJ rpfpr;ir mspj;j lhf;lhplk; eh;!; mk;kht[k; v';fs; Ciu nrh;e;j mUs;jh!; kidtp g[!;gk; cld; ,Ue;jhh;fs;/ eP';fs; goj;J fhl;odPh;fs;////@ 18. So, as per the statement given by the deceased in Ex.P-10, before her death, it is clearly proved that there was no demand of dowry. 19. Considering the evidence of P.Ws.1 and 2 along with the evidence of P.W.4, P.W.4 is very loyal than the master. P.W.1 in his chief examination has stated that, @/// vd; kfs; ,wg;gjw;F xU thuj;jpw;F Kd;g [ v';fs; Chpy; ele;j xU fy;ahzj;jpw;F te;jpUe;jJ/ mg;nghJ ehd; vd; kfis ghh;j;j nghJ Kfk; vy;yhk; fPwpapUe;jJ/ mg;nghJ ehd; vd; kfsplk; vd;dk;kh Kfk; vy;yhk; fPwpapUf;fpwJ vd;W nfl;nld;/ mjw;F vd; kfs; ey;y ,lk; ghh;j;J vd;id fy;ahzk; gz;zpf;bfhLj;nj. nkhl;lhh; irf;fps; th';fpf; bfhLf;fhtpl;lhy; ehd; capnuhL ,Uf;fKoahJ vd;W brhd;dJ/ ////@ P.W.2 in her chief examination has stated that, @ ////// vd; kfs; filrpahf vd;Dila CUf;F vd;Dila brhe;jf;fhuh; tPl;Lf;fy;ahzj;jpw;F te;jpUe;jJ/ mg;nghJ vd; kfsJ fd;dj;jpy; fPwy; ,Ue;jijg; ghh;j;njd;/ mts; nghl;oUe;j K:f;Fj;jp tise;jpUe;jJ/ Vd; vd;W nfl;ljw;F rz;iltk;g[ te;jJ jd; g[U&d; moj;jjhf brhd;dhs;/ ////@ P.W.4 in her chief examination, has stated that, @ ///// vd;Dila tPL m/j/rh/1?d; tPl;ow;F vjph; tPL/ ehd; vyprbgj;uhzpaplk; vd;d K:";rpbay;yhk; fhakhf ,Uf;fpwJ vd;W nfl;nld;/ vd; jfg;gdhiu vdf;F nkhl;lhh; irf;fps; th';fpf; bfhLf;fhjjhy; vd; fzth; tPl;oy; vd;idf; bfhLikg;gLj;Jfpwhh;fs; vd;Wk; tujl;riz bfhLik vd;Wk; brhd;dhs;/ bey; mWj;j gpwF nkhl;lhh; irf;fps; th';fpf;bfhLf;Fk;go vd; mg;ghtplk; nfs; vd;W brhd;ndd; ////@ P.W.4 in her cross examination has stated that, @ //// vyprbgj;uhzpapDila K:";R KGtJk; fhakhf ,Ue;jJ/ K:";R KGtJk; g[z;g[z;zhf ,Ue;jJ/ 10. 20 fhak; ,Ue;jJ/ fy;ahzj;jpw;F 1?k; vjpuhsp tutpy;iy/ ////@ Thus, both P.W.1 and P.W.2 in their chief examination stated that