IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 11TH JUNE 2008 / 21ST JYAISHTA 1930 CRL.A.No. 1504 of 2004() ------------------------ SC.97/1999 of ADDL. SESSIONS COURT (FAST TRACK COURT-I), THIRUVANANTHAPURAM .................... APPELLANT: ACCUSED NO.1. ------------------------ PALRAJ @ APPUKUTTAN, S/O.THANKAYYAN, KUNCHUVEETUVILA PUTHEN VEEDU, VENKADAMBU DESOM, KULATHOOR VILLAGE. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT: COMPLAINANT. ------------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/06/2008 ALONG WITH CRA NO. 1399 OF 2004, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & M.C.HARI RANI, JJ. ----------------------------------------------------------------- Crl. Appeal No.1504 of 2004 ----------------------------------------------------------------- Judgment Balakrishnan Nair, J. The appellant challenges the conviction and the sentence imposed on him by the Additional Sessions Judge (Fast Track Court I), Thiruvananthapuram in SC No.97/99. 2. The prosecution case in brief is as follows: The first accused is the husband of Valsala, the deceased. Their marriage was solemnised as per the customary rites on 14.11.1996. PW1, the mother of the deceased had given her an amount of Rs.75,000/- as dowry, but it was deposited in the bank in the name of the first accused and the deceased on 03.03.1997. There was persistent demand from the part of the first accused and also the second accused, who is the father of the first accused, for withdrawing the said amount from the bank. The deceased was not agreeing for the same. Further, A1 and A2 were harbouring doubts regarding the chastity of the deceased Valsala. They suspected that she was having illicit relationship with PW12 and also with other young men of the locality. On that ground also, A1 and A2 were Crl.A No.1504/04 2 harassing her. In order to withdraw the amount deposited in the bank, the accused decided to do away with Valsala. A1, using a betel pestle, hit her on the middle of the chest at about 2 pm on 25.05.1997. She was again hit, using the very same pestle on the right forehead. Because of the said two injuries, she fell unconscious. A1 closed the door of the room from inside and poured kerosene on her. Thereafter, using a ladder, he climbed to the roof of the house, lighted a match and threw it on the body of Valsala, who was lying unconscious. After that, he escaped through the gap between the eastern wall and the roof of the house. Valsala suffered burn injuries and died. Thereby, the first accused committed the offences punishable under Sections 498A and 302 IPC. A2, the father, A3, the brother-in-law and A4, the mother of the first accused, also participated in the crime. Immediately after the death of Valsala, PW1, her mother Palamma came to the scene of occurrence. She lodged the information regarding the death of her daughter, with Pozhiyoor Police on the morning of 26.05.1997. The Assistant Sub Inspector of Police, PW29 registered Crime No.73/97 for the offence punishable under S.304B IPC. A1 and A2 were shown as the accused. The initial investigation was conducted by PW31 and the Deputy Superintendent of Police, PW32 Crl.A No.1504/04 3 completed the investigation and laid the charge before the Magistrate's Court for the offences punishable under Ss.498A and 302 IPC. During the investigation, reports were filed, arraying A3 and A4 also as the accused. 3. The learned Magistrate committed the case to be tried by the Sessions Court. The accused pleaded not guilty to the charges framed by the learned Sessions Judge. PWs1 to 32 were examined from the side of the prosecution and Exts.P1 to P27 were marked. Material Objects 1 to 6 were produced. The accused were questioned by the trial court on the circumstances, which appeared against them in the evidence, under S.313 Cr.PC. A1 pleaded alibi. To prove that defence, he examined DWs1 and 2, who deposed that he was away at Chengannur on the date of occurrence. The court considered the evidence on record and found the appellant/first accused guilty of the offence under S.302 IPC. The trial court held that all the circumstances proved by the prosecution point to the guilt of the accused and there was no circumstance, inconsistent with his guilt. So, relying on the circumstantial evidence, it was found that the appellant was guilty and he was sentenced to undergo rigorous imprisonment for life for the offence under S.302 IPC and three years' rigorous imprisonment for the offence under Crl.A No.1504/04 4 S.498A IPC. He was also sentenced to pay a fine of Rs.1 lakh for the offence under S.302 and to undergo rigorous imprisonment for four years, in default. He was further sentenced to pay a fine of Rs.5,000/- for the offence under S.498A IPC and in default, to undergo six months' rigorous imprisonment. 4. In this appeal, the appellant attacks the sentence and the conviction imposed on him. The learned counsel for the appellant took us through the deposition of the witnesses and also through the documents marked by the prosecution. The learned counsel submitted that as per the prosecution case, the room in which the deceased was found dead, was locked from inside. So, it must be presumed that she has committed suicide by locking herself inside. There is no whisper in the evidence to show that the first accused, after setting fire to the deceased, escaped through the space between the eastern wall and the roof of the house. In the absence of any evidence on this aspect, it is submitted, the charge against the appellant that he committed culpable homicide, is bound to fail. 5. We heard the learned Public Prosecutor on the above point. But, he was also unable to point out any evidence which showed that the first accused, after committing the heinous crime, locked the door from inside and made his Crl.A No.1504/04 5 escape by climbing to the roof, using a ladder. Therefore, a very important link in the evidence against the first accused is missing. The absence of the said link is inconsistent with the guilt of the first accused. So, going by the principles laid down by the Apex Court and this Court, concerning the sufficiency of circumstantial evidence to secure a conviction, the appellant is entitled to succeed. Accordingly, the conviction of the appellant and the sentence imposed on him under S.302 IPC are set aside, as the prosecution has failed to prove his guilt beyond reasonable doubt. 6. The learned counsel for the appellant submitted that his conviction under S.498A IPC is also liable to be set aside. But, we find it difficult to accept the said submission of the learned counsel. S.498A IPC reads as follows : “Husband or relative of husband of a woman subjecting her to cruelty – Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation – For the purpose of this section, 'cruelty' means - (a) any wilful conduct which is of such a nature as is likely to Crl.A No.1504/04 6 drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman ; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.” 7. We are of the view that the deceased was subjected to cruelty, going by clause (b) of the Explanation of cruelty. There is ample evidence on record to show that there was persistent demand from the part of the appellant/first accused, for closing the account with the bank and for drawing the amount of Rs.75,000/- deposited as dowry. PWs1, 3, 6 and 7 have spoken on this aspect. The trial court believed the version of the above witnesses and found the appellant guilty under S.498A IPC. We find no reason to take a different view. We agree with the reasons and conclusion of the trial court on this point. Accordingly, the conviction of the appellant and the sentence imposed on him under S.498A are affirmed. 8. Even if the appellant is found not guilty of the offence under S.302 Crl.A No.1504/04 7 IPC, the next point to be considered is whether he should be found guilty under S.304B IPC. Though the appellant is not charged for a particular offence, he can be found guilty of that offence, in view of the provisions contained in Ss.222 and 386 of the Cr.P.C. 9. S.304B IPC 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, 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.” The view that even if the appellant is not charged for the offence under S.304B, he can be convicted for it, provided he is given a chance to adduce Crl.A No.1504/04 8 defence evidence, is supported by the decision of the Apex Court in Shamnsaheb M.Multtani v. State of Karnataka (AIR 2001 SC 921). But, the learned counsel for the appellant submitted that there is no evidence on record to show that soon before the death of Valsala, she was subjected to cruelty or harassment by her husband or any of his relatives in connection with the demand for dowry. Relying on the evidence of PW1, Palamma, the learned counsel submitted that the alleged cause for doing away with Valsala was her alleged illicit relationship with PW12. The harassment in connection with the alleged relationship with PW12 will not help the prosecution to bring her death under the purview of S.304B IPC, it is submitted. Though some of the prosecution witnesses have spoken that the deceased was being harassed for not co-operating to withdraw the amount deposited in the joint account of her and the appellant, none of them has spoken that there was such an incident, immediately preceding the death of Valsala on 25.05.1997. So, the most important ingredient of the offence under S.304B is not proved by the prosecution, it is submitted. The learned counsel for the appellant also submitted that the demand in this case cannot be treated as a demand for dowry. He pointed out that the dowry amount has already been paid. The Crl.A No.1504/04 9 dispute remained was as to how it should be utilised. The learned counsel also pointed out that when PW27, who is the sister of the appellant, was examined, the prosecution put a suggestion that the appellant insisted for the release of the amount, so that it can be used as dowry for the marriage of the said witness. Therefore, it is submitted that the demand in this case cannot be characterised as a demand for dowry. In support of that submission, the learned counsel relied on the decision of the Apex Court in Appasaheb v. State of Maharashtra [2007(4) KLT 463 (SC)]. Special reference was made to para 9 of the said judgment, which reads as follows: “9. Two essential ingredients of S.304-B I.P.C., apart from others, are (i) death of woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances, and (ii) woman is subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for 'dowry'. The explanation appended to sub-s.(1) of S.304-B I.P.C says that 'dowry' shall have the same meaning as in S.2 of Dowry Prohibition Act, 1961. S.2 of Dowry Prohibition Act reads as under:-- '2. Definition of 'dowry':-- In this Act 'dowry' means any property or valuable security given or agreed to be given either Crl.A No.1504/04 10 directly or indirectly-- (a) by one party to a marriage to the other party to the marriage; or (b) by the parent 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 mahr in the case of persons to whom the Muslim Personal Law (shariat) applies.' In view of the aforesaid definition of the word 'dowry' any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. Therefore, the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well known social custom or practice in India. It is well settled principle of interpretation of Statute that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understands to have a particular meaning in Crl.A No.1504/04 11 it, then the words are to be construed as having that particular meaning (see Union of India v. Garware Nylons Ltd. - AIR 1996 SC 3509 and Chemicals and Fibres of India v. Union of India – AIR 1997 SC 558). A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. The evidence adduced by the prosecution does not, therefore, show that any demand for 'dowry' as defined in S.2 of the Dowry Prohibition Act was made by the appellants as what was allegedly asked for was some money for meeting domestic expenses and for purchasing manure. Since an essential ingredient of S.304-B I.P.C., viz, demand for dowry is not established, the conviction of the appellants cannot be sustained.” 10. The learned Public Prosecutor, on the other hand, pointed out that the dowry was never paid to the appellant. It remained in the joint account of him and the deceased. So, the demand for release of the amount to him will amount to a demand for release of dowry. Therefore, the dispute between the husband and wife was regarding payment of dowry and not about the utilisation of it, submits the learned Public Prosecutor. He also pointed out that Crl.A No.1504/04 12 there is ample evidence to show that there was persistent harassment from the part of the husband and the father-in-law of the deceased for not permitting them to withdraw the amount deposited in the bank towards dowry. The words 'soon before her death' may not be interpreted in a mechanical way. The relationship between the husband and the wife was strained because of her omission to allow him to withdraw the amount from the bank. It was a continuing and persistent demand and harassment, it is submitted. Therefore, having regard to the facts of the case, it can safely be presumed that there was harassment soon before her death, submits the learned Public Prosecutor. The learned Public Prosecutor submitted that there is no material on record to show that the demand for dowry was met and thereafter no further demand was raised. Unless there is evidence to show that the demand for dowry is met, it can be safely presumed that the earlier persistent demand and harassment for dowry continued till the date of death, though there is no direct evidence to show that soon before the death, there was demand for dowry and harassment. This view is canvassed by the learned Public Prosecutor, relying on the decision of the Apex Court in Kans Raj v. State of Punjab [2000(5) SCC 2007]. Relevant portion of the said judgment reads as follows : Crl.A No.1504/04 13 “It is further contended on behalf of the respondents that the statements of the deceased referred to the instances could not be termed to be cruelty or harassment by the husband soon before her death. 'Soon before' is a relative term which is required to be considered under specific circumstances of each case and no straitjacket formula can be laid down by fixing any time-limit. This expression is pregnant with the idea of proximity test. The term 'soon before' is not synonymous with the term 'immediately before' and is opposite of the expression 'soon after' as used and understood in Section 114, Illustration (a) of the Evidence Act. These words would imply that the interval should not be too long between the time of making the statement and the death. It contemplates the reasonable time which, as earlier noticed, has to be understood and determined under the peculiar circumstances of each case. In relation to dowry deaths, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be 'soon before death' if any other intervening circumstance showing the non-existence of such treatment is not brought on record, before such alleged treatment and the date of death. It Crl.A No.1504/04 14 does not, however, mean that such time can be stretched to any period. Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. The demand for dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time which, under the circumstances, be treated as having become stale enough. No presumption under Section 113-B of the Evidence Act would be drawn against the accused if it is shown that after the alleged demand, cruelty or harassment the dispute stood resolved and there was no evidence of cruelty and harassment thereafter. Mere lapse of some time by itself would not provide to an accused a defence, if the course of conduct relating to cruelty or harassment in connection with the dowry demand is shown to have existed earlier in time not too late and not too stale before the date of death of the woman. The reliance placed by the learned counsel for the respondents on Sham Lal v. State of Haryana (14 (1997) 9 SCC 759) is of no help to them, as in that case, the evidence was brought on record to show that attempt had been made to patch up between the two sides for which a panchayat was held in which it was resolved that the deceased would go back to the nuptial home pursuant to which she was taken by the husband to his house. Such a panchayat was shown Crl.A No.1504/04 15 to have been held about 10 to 15 days prior to the occurrence of the case. There was nothing on record to show that the deceased was either treated with cruelty or harassed with the demand of dowry during the period between her having taken to the nuptial home and her tragic end. Such is not the position in the instant case as the continuous harassment to the deceased is never shown to have settled or resolved.” 11. Having regard to the facts of the case, we, prima facie, feel that there were materials on record to charge and try the appellant under Section 304-B I.P.C. With the materials on record, though, we prima facie felt that he is guilty of the offence under S.304B IPC, we cannot finally convict him under that section, in view of the decision of the Apex Court in Shamnsaheb M.Multtani v. State of Karnataka (AIR 2001 SC 921]. If we venture to evaluate the evidence and decide whether the appellant could be convicted under Section 304-B I.P.C., the same will result in miscarriage of justice, as he was not given a chance to defend himself concerning that charge, as held by the Apex Court in the above decision. If we do that, serious prejudice will be caused to him. In this case, the appellant has attempted to prove alibi to get over the charge under Section 302 I.P.C. If the charge was one under Section Crl.A No.1504/04 16 304-B, he would not have attempted to do that. Because, for convicting an accused under Section 304-B, the presence of the accused at the scene of unnatural death and at the time of unnatural death is not necessary. So, the appellant would be seriously prejudiced, unless he is given a chance to adduce defence evidence to dispel the materials against him, which may lead to his conviction under Section 304-B I.P.C. On this aspect, the Apex Court in Shamnsaheb M.Multtani's case (supra) held as follows : “But the peculiar situation in respect of an offence under Section 304-B IPC as discernible from the distinction pointed out above in respect of the offence under Section 306 IPC is this : Under the former the court has a statutory compulsion, merely on the establishment of two factual positions enumerated above, to presume that the accused has committed dowry death. If any accused wants to escape from the said catch, the burden is on him to disprove it. If he fails to rebut the presumption, the court is bound to act on it. Now take the case of an accused, who was called upon to defend only a charge under Section 302 IPC. The burden of proof Crl.A No.1504/04 17 never shifts on to him. It ever remains on the prosecution which has to prove the charge beyond all reasonable doubt. The said traditional legal concept remains unchanged even now. In such a case, the accused can wait till the prosecution evidence is over and then to show that the prosecution has failed to make out the said offence against him. No compulsory presumption would go to the assistance of the prosecution in such a situation. If that be so, when an accused has no notice of the offence under Section 304-B IPC as he was defending a charge under Section 302 IPC alone, would, it not lead to a grave miscarriage of justice when he is alternatively convicted under Section 304-B IPC and sentenced to the serious punishment prescribed thereunder, which mandates a minimum sentence of imprisonment for seven years. The serious consequence which may ensue to the accused in such a situation can be limned through an illustration ;- If a bride was murdered within seven years of her marriage and there was evidence to show that either on the previous day or a couple of days earlier, she was subjected to harassment by Crl.A No.1504/04 18 her husband with demand for dowry, such husband would be guilty of the offence on the language of Section 304-B IPC read with Section 113-B of the Evidence Act.