IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 12TH MARCH 2009 / 21ST PHALGUNA 1930 CRL.A.No. 348 of 2001(B) {S.C.NO.314/1996 of IIND ADDITIONAL SESSIONS COURT, THIRUVANANTHAPURAM} .................... APPELLANT(S)/1ST ACCUSED: ------------------------- ANI, S/O. GEORGE, THEKKETHETTIVILA, THEKKARIKATHU PUTHEN VEEDU, THETTIVILA, KALLIYOOR DESOM, KALLIYOOR VILLAGE. BY ADV. SRI.PIRAPPANCODE V.SREEDHARAN NAIR SRI.S.P.ARAVINDAKSHAN PILLAY SRI.PIRAPPANCODE V.S.SUDHIR RESPONDENT(S)/COMPLAINANT: ---------------------------- STATE, REPRESENTED BY THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL, HIGH COURT BUILDING, ERNAKULAM. (ASSISTANT COMMISSIONER OF POLICE, FORT POLICE STATION, THIRUVANANTHAPURAM.) BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J. ------------------------- Crl.A.No.348 of 2001 ------------------------- Dated this the 12th day of March, 2009. JUDGMENT The first accused in S.C.No.314/96 on the files of the 2nd Additional Sessions Court, Thiruvananthapuram, is the appellant herein. 2. The first accused was prosecuted for the offences punishable under Sections 304(B) and 498(A) read with Section 34 of the Indian Penal Code {for short “the Code”}. The 2nd accused, the mother of the first accused, who was prosecuted along with the first accused, was found not guilty and was acquitted. Her acquittal has become final. 3. The first accused/appellant was convicted for the offence under Section 304(B) as also under Section 498(A) of the Code. He was sentenced to undergo rigorous imprisonment for a period of 7 years for the offence under Section 304(B); but no separate sentence was awarded under Section 498(A), though he was convicted for the said offence also. Crl.A.No.348 of 2001 :: 2 :: 4. The case of the prosecution, in brief, is that on 3.9.1992, the first accused married Pushpam, the sister of PW.1 at the Keezharoor St. Peter's Church. For the marriage, 4 sovereigns of gold ornaments and Rs.10,000/- were agreed to be given. Gold was given. Cash could not be paid and therefore, 15 cents of property was conveyed under Ext.P2 document in the joint names of Pushpam and the 1st accused. Pushpam was constantly harassed by the 1st accused for money. While so, on 5.9.1994 Pushpam committed suicide by jumping into the well situated in the family house of accused 1 and 2. Therefore, it was alleged that the accused have committed offences under Sections 304(B) and 498(A) read with Section 34 of the Code. 5. First information statement was given by CW.1, at about 9 AM on 6.9.1994 (CW.1 could not be examined because he passed away before trial). PW.1 is the mother of the deceased. PW.2 is the sister-in-law of the deceased. PW.3 is an attester to Ext.P3 mahazar. PW.4 is a Priest who Crl.A.No.348 of 2001 :: 3 :: solemnised the marriage of Pushpam and the 1st accused. PW.5 is a neighbour of Pushpam and the 1st accused. PW.6 is an attester to Ext.P6 inquest report. PW.7 is the Fire Station Officer, who had played a vital role in the retrieval of the body of Pushpam from the well. PW.8 is another neighbour of the 1st accused and PW.9 is the doctor who issued Ext.P8 post mortem certificate. PW.10 is the Tahsildar and PW.11 is the Village Officer, who were examined to prove the inquest and PW.12 had recorded the first information statement. PW.13 is the Investigating Officer. 6. PW.1 deposed that there was a demand for 4 sovereigns of gold and Rs.10,000/- at the time of engagement between Pushpam and 1st accused. The marriage was solemnised on 3.9.1992. A child was born and the child was 9 months' old when Pushpam died. Though Pushpam was generally seen happy, it was noticed that Pushpam was conveying the demand of Rs.10,000/- whenever she came home and she was then found gloomy. She was brought to her Crl.A.No.348 of 2001 :: 4 :: mother's house viz., PW.1's house, by the first accused about two months prior to her death. She was asked to stay there for four days. Pushpam told PW.1 that there was a constant demand for dowry. She cried when she narrated the same. There was no sufficient clarity whether there was any mediation at that point of time. It has come out that Pushpam was brought back by the 1st accused to his house about 4/5 days later. She did not say that she came across any other ill- treatment being meted out to Pushpam by the 1st accused. 7. PW.2, the sister-in-law, also spoke about the demand for Rs.10,000/-, stated to have been made on Pushpam, by her husband. Both Pws.1 and 2 speak about the demand for Rs.10,000/-, which originated at the time of marriage and which can, therefore, be treated as a demand for dowry. Both of them speak about the conveyance of 15 cents of property, which at the time of deposition, could be valued at Rs.3000/- to Rs.5000/- per cent, having been conveyed in the joint names of Pushpam and 1st accused. One of the Crl.A.No.348 of 2001 :: 5 :: contentions that was taken up on behalf of the accused is that the alleged demand of Rs.10,000/- does not seem to be believable because, according to Pws.1 and 2, the total demand was for 4 sovereigns of gold and Rs.10,000/- in cash and if a property having more value than Rs.10,000/- had been conveyed, then there would not have been a demand for a lesser sum of Rs.10,000/-, which if paid would have resulted in the property being re-conveyed to PW.1. But Pws.1 and 2 have been consistent in their version about Pushpam coming to her house two months prior to her death and narrating the demand for Rs.10,000/-. Both of them said that 4/5 days thereafter 1st accused came to their house and took her back. 8. There is also the evidence of PW.5, a neighbour and a retired Headmaster and a senior citizen aged 74. No motives have been attributed or suggested against him. He also deposed that though Pushpam was otherwise found to be happy, he had also sometimes found her to be sad and he stated about the demand for dowry being made by the 1st Crl.A.No.348 of 2001 :: 6 :: accused. This version was corroborated by Pws.1 and 2. It is also stated that the first information statement was given by CW.1, the brother of the deceased on the following day. Neither the accused nor any one in the family had given the first information statement. PW.7 is another neighbour of Pushpam and 1st accused. Though he was declared hostile, he stated that he had heard a sound on 5.9.1994 and having rushed to the spot, he found accused 1 and 2 in tears crying aloud that Pushpam had just jumped into the well. The case of Pushpam committing suicide was found established by the court below. On a re-appreciation of the evidence, I am in complete agreement as regards the manner of death of Pushpam. 9. I am also in agreement with the findings of the court below that the accused had made demand for dowry with Pushpam and that Pushpam had been taken to her mother's house and left there for about 4/5 days. But, I also take note of the fact that even going by the evidence of Pws.1 and 2, Crl.A.No.348 of 2001 :: 7 :: Pushpam had not shown any reluctance in joining her husband when he came to her house. PW.1 has said that generally she found her daughter happy with her husband. But, there was a demand for dowry and the said demand as such is spoken to by Pws.1 and 2 and corroborated by PW.5. 10. There is yet another aspect, which has to be taken note of. PW.8 the doctor has deposed that out of the 13 injuries, which were found on the body of the deceased, injuries 7, 8, 9 and 10 contusions, which were found to be blue in colour, could have happened on account of a contact with the blunt instrument prior to the fall into the well and the consequent drowning, which led to the death of the deceased. The said wounds, which were blue in colour, were on the left shoulder, wrist, and left palm. There was no reasonable explanation offered by the accused as to how those injuries could have been detected on the body of the deceased. It is not possible to conclude that those injuries were caused due to the fall, which had immediately preceded the drowning. Crl.A.No.348 of 2001 :: 8 :: Those wounds could have been inflicted well prior to the fall, which had led to the death of the deceased. No doubt, there is no clinching circumstance to show that Pushpam had been subjected to physical harassment and Pws.1 and 2 also do not depose that Pushpam had told that she was being beaten by her husband. There is a vague statement by PW.2 that Pushpam had told her that a demand for dowry is sometimes accompanied by beating as well. This answer is given at the time of cross-examination. But the time when this was conveyed to her by Pushpam and whether this was pursued as such is not spoken to by PW.2. PW.1, the mother does not say anything about Pushpam having been subjected to any such physical harassment or any such version being conveyed by Pushpam. On an over all re-appreciation of the evidence, I am of the view that Pushpam was subjected to repeated demands of dowry and she was being harassed in that line. That the demands were being made by the husband-1st accused is also clear from the evidence of Pws.1 and 2, corroborated by PW.5. Crl.A.No.348 of 2001 :: 9 :: Since the 2nd accused has been acquitted and her acquittal has become final, I refrain from making any comment as to whether the 2nd accused was responsible for such demand. The demand for dowry, therefore, being made on Pushpam would definitely amount to harassment. 11. The crucial question is whether the demand for dowry so made on Pushpam, was the proximate cause which led to Pushpam having jumped into the well on the fateful day of 5.9.1994. The court below had referred to the injuries 7 to 10 in Ext.P8 postmortem certificate to come to the conclusion that physical harassment which could have been meted out to Pushpam would have persuaded her to take the ultimate decision to jump into the well. I am afraid that the ingredients to make out an offence under Section 304(B) IPC Pushpam has not been analyzed or appreciated by the court below correctly. Section 304(B) reads as follows: “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 Crl.A.No.348 of 2001 :: 10 :: 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. 12. That the death of Pushpam occurred on account of the bodily injuries sustained by her, as noted in Ext.P8 postmortem certificate, is a matter which has been established beyond doubt. That the death took place within 7 years of marriage is also established. But the crucial link to make an offence under Section 304(B) of the Code is that Pushpam must have been subjected to cruelty or harassment by the 1st accused, soon before her death and that such cruelty or harassment was in connection with any payment of dowry. In such circumstances, the death shall be called a “dowry death”. Is there any evidence, as such, to demonstrate that Pushpam was subjected to physical harassment or cruelty immediately before her death and the same was in relation to the demand of dowry. There is total dearth of evidence in this regard. It is PW.1, who has spoken to the fact that she had Crl.A.No.348 of 2001 :: 11 :: gone to Pushpam's house about 13 days prior to her death. But PW.2 also does not say that Pushpam had said that she was subjected to any physical harassment or that she was being beaten by her husband or by any other inmate of his house in connection with the demand for dowry. PW.2's testimony has been accepted by the court below and at any rate, the testimony is believable as such. But PW.2 has not spoken that she had found any marks or injury on Pushpam when she had come 13 days prior to her death and that Pushpam had stated that her husband had been regularly beating her with a demand for dowry. There is no other evidence on record to show that there had been any fight between them and such fight between the husband and wife was in relation to the non- receipt of dowry. In fact, there is total dearth of evidence on this aspect. If that be so, the crucial ingredients of Section 304(B) of the Code is absent in this case. Pushpam has not, before her death, stated that she was subjected to cruelty or harassment in connection with the demand of dowry and such Crl.A.No.348 of 2001 :: 12 :: an incident has not been established. In fact, let alone establishing the same beyond reasonable doubt, there does not seem to be any evidence, attracting the crucial ingredients of Section 304(B) of the Code. In the circumstances, I am of the view that the conviction of the 1st accused under Section 304 (B) of the Code is unsustainable. 13. But I am in agreement with the court below that the 1st accused has committed the offence under Section 498(A) of the Code. The constant demand for dowry with the wife and denying his company to the wife for the purpose of dowry are matters, which will constitute physical harassment within the meaning of Section 498(A) of the Code. Learned counsel for the appellant submits that there is no acceptable evidence to show that Pushpam was being subjected to any physical harassment. The offence under Section 498(A) of the Code is not dependent on any physical harassment. Cruelty for the purpose of Section 498(A) would include any willful conduct, which is likely to drive the woman to commit suicide. Crl.A.No.348 of 2001 :: 13 :: Pushpam was only 22 years at the time of her death. She had a 9 month old child. There was no other cause for her, which would have impelled her to commit suicide. She was aggrieved by the demand for dowry as spoken to by witnesses. In these circumstances, I am of the view that the prosecution has established that the 1st accused is guilty of the offence under Section 498(A) of the Code. 14. In the circumstances, the 1st accused/appellant is liable to be convicted for the offence under Section 498(A) of the Code. 15. I heard learned counsel for the appellant/1st accused and learned Public Prosecutor on the question of sentence as well. 16. The court below had not awarded any separate sentence for the offence under Section 498(A) of the Code. In circumstances where the court below had sentenced the appellant to undergo rigorous imprisonment for a period of 7 years under Section 304(B), the court below has not awarded a Crl.A.No.348 of 2001 :: 14 :: separate sentence under Section 498(A). Now that the conviction for the offence under Section 304(B) is being set aside and the conviction under Section 498(A) is being upheld, it is necessary to impose a separate sentence on the 1st accused/appellant for the offence under Section 498(A) of the Code. 17. I take note of the fact that the property having an extent of 15 cents had been conveyed in favour of the 1st accused and the deceased as per Ext.P2 document. It has come out in evidence that the only child of Pushpam and 1st accused, 9 months old child at the time of the death of Pushpam, is being looked after by the mother of Pushpam, PW.1. It seems that the 1st accused has not taken any earnest steps to look after the child. In the circumstances, I am of the view that the 1st accused must be sentenced to pay a reasonably high amount as fine and the said fine amount must be paid to the only child of the deceased, who is now being looked after by PW.1, as compensation under Section 357. Crl.A.No.348 of 2001 :: 15 :: In the result, the appeal is allowed in part. The conviction and sentence imposed on the appellant/1st accused under Section 304(B) of the Code is set aside. The conviction of the 1st accused for the offence under Section 498(A) of the Code is affirmed. The appellant/1st accused is sentenced to undergo rigorous imprisonment for a period of 9 months. He is also directed to pay a fine of Rs.50,000/-. The fine amount shall be deposited within three months from today. If the fine amount is not paid, he shall undergo simple imprisonment for a further period of 6 months. The fine amount, if deposited, shall be handed over to the child of Pushpam and the 1st accused, who is now a minor and in the custody of PW.1, by depositing it in the name of the minor in a Nationalized Bank. The child would be entitled to withdraw the said amount only when she becomes a major. It is made clear that if the fine amount is deposited, such deposit will have no impact on the liability of the 1st accused for maintaining his daughter. This direction to pay compensation to the child is only imposed Crl.A.No.348 of 2001 :: 16 :: under Section 357(3) of the Code of Criminal Procedure and the Family Court, if called upon to adjudicate the liability of the 1st accused for maintenance, shall do so, regardless of the direction issued hereunder to see that the fine amount deposited by the 1st accused is paid over to the child as compensation. Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. to Judge