A.M. Babu JUDGMENT
A.M. Shaffique, J.
1. These appeals have been preferred by the State of Kerala and the father of the victim, Chami challenging the judgment of conviction and order of sentence passed by the Special Additional Sessions Judge, Palakkad dated 07/12/2013 in S.C. No. 641 of 2010 by which the accused/appellants were not found guilty for offences alleged against them and hence were acquitted of all charges.
2. The case of the prosecution, in short, is as follows:
The deceased was married to the 1st accused as per religious rites of the parties on 11/02/2008 at Mannur Sree Kaimathukavu temple. They began to live as husband and wife at the house of the 1st accused at House No. 1/135, Mannur Thekkinkadu at Mannur Panchayat along with accused nos. 2 to 4. The accused used to torture her telling that the dowry given was inadequate and also by demanding more dowry in cash and kind. After the delivery of the child, she came back to her matrimonial home. Thereafter, she was asked to bring money and gold and was subjected to cruelty and torture both mental and physical. Due to all these, on 08/04/2010, at 09.00 p.m, she poured kerosene on her body in the said house and set her ablaze and died out of burn injuries so sustained.
3. Prosecution examined PW 1 to PW 18 as witnesses, marked documents Exts. P1 to P17 and identified articles as MO 1 to MO 31. Exts. D1 to D8 contradictions were marked by the defence. During 313 examination, all the accused denied circumstances that appeared against them and pleaded innocence. Defence examined DW 1 and DW 2 from their side.
4. This is an appeal against judgment of acquittal passed by the trial Court. It is settled law that appellate Courts have to restrain themselves from reversing the finding of a trial Judge merely on the ground that another view is possible or that a better view could have been taken. Unless it is shown to the satisfaction of this Court that the judgment is perverse or that it is unreasonable, our interference is not called for in the matter. Keeping these basic principles in mind, let us go into the appreciation of evidence afresh.
5. At the very outset, it can be seen that there is no charge of Section 498A of I.P.C. against any of the accused. At the same time, they were charged with Section 304B of I.P.C. which is the offence of dowry death. The Court charge further shows that the accused were charged by the trial Court with offence under Sections 304B and Section 302 read with Section 34 of the Indian Penal Code, 1860 (for short 'IPC') in the light of Regbir Singh v. State of Haryana (CDJ 2010 SC 1067). Learned Senior counsel for the accused submitted that the way charge was framed by the trial Court was not legal. S. 304B of I.P.C. and S. 302 read with S. 34 of I.P.C. cannot go simultaneously. We make it clear that there is nothing in S. 304B as to prevent the Court from charging the accused with S. 302 of IPC. S. 304B is a special provision inserted in I.P.C. to deal with the menace of dowry death. It 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 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.
6. It is well settled that for holding a person liable under Section 304B of I.P.C., the essential ingredients to be proved by the prosecution are as follows:-
(i) The death of a women should be caused by burn or bodily injury or otherwise than under a normal circumstance;
(ii) Such a death should have occurred within seven years of her marriage;
(iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband;
(iv) Such cruelty or harassment should be for or in connection with demand of dowry;
(v) Such cruelty or harassment is shown to have been meted out to the women soon before her death.
7. On proof of the essential ingredients under Section 304B, it becomes obligatory on the part of the Court to raise a presumption that the accused caused dowry death. Presumption under S. 113B of the Indian Evidence Act, 1872 kicks in:
"113B. 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 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)".
8. When Section 113-B of Evidence Act and Section 304B I.P.C. are read together, it is palpable that there must be material to show that soon before her death, the victim was subjected to cruelty or harassment. Apex Court has laid down in catena of decisions that 'soon before' is a relative term and it would depend upon circumstance of each case and no straight jacket formula can be laid down as to what would constitute the said period. There must be in existence, proximate live link between the facts of cruelty in connection with demand of dowry and the death. If the alleged incident of cruelty is remote in time and had become stale enough not to disturb mental equilibrium of the women concerned, it would be of no consequence. The word used is 'shown', not 'proved' in Section 304B IPC. It indicates that the prosecution can discharge its burden by preponderance of probability. The word 'deemed' used in that Section requires that an accused has to prove his innocence beyond reasonable doubt. The accused is required to rebut the presumption under Section 113B of the Indian Evidence Act by proving his innocence. Thus, where prosecution has shown that 'soon before her death' the deceased was subjected to cruelty or harassment by the husband or in-laws in connection with demand of dowry, the presumption under Section 113B of Evidence Act arises and the Court shall presume that such person, who had subjected the women to cruelty or harassment in connection with any demand for dowry, shall be presumed to have caused the dowry death. The presumption that arises in such cases may be rebutted by the accused. Plain reading of Section 304B clearly shows that the death which is talking about could be homicide or suicide. Hence, there is no legal bar in charging the accused with S. 304B and S. 302 of I.P.C. simultaneously. Of course, the question is whether the said charges were proved by the prosecution to the satisfaction of Court.
9. Evidence adduced in this case, in brief, are as follows:-
PW 1 is an attestor to Ext. P1 mahazar. PW 2 and PW 3 are attestors to Ext. P2 inquest report. Ext. P3 is marked through PW 4. PW 5 is the Civil Police Officer through whom Ext. P4 seizure mahazar of wedding invitation card (MO 2) and wedding photos (MO 1) of the 1st accused and the deceased were marked. Ext. P5 is the seizure mahazar prepared at the time of seizing 21 digitally taken photos (MO 3 to MO 23) and a CD (MO 24) which were taken at the time of inquest of the deceased. PW 6 is the Special Village Officer who prepared Ext. P6 site plan. PW 7 to PW 11 are cited to prove the allegation of demand of dowry and cruelty meted out by the accused against the deceased.
10. It is apt to look into the evidence of witnesses in detail. PW 7 Krishnadas is the brother of the deceased. He gave Ext. P7 statement to police. He deposed that his sister Krishnaleena was given in marriage to the 1st accused as per customary rites on 11/02/2008 at Sree Kaimathukavu temple, Mannur, Palakkad. It is his version that 50 sovereigns of gold and a sum of ` 1,50,000/- (Rupees One Lakh and Fifty Thousand only) were given at the time of marriage. The deceased started living in the house of the accused and in the seventh month of pregnancy, she was taken back to her parental home. Nine months after delivery, she was brought back to her matrimonial home by himself, her mother, her father and local people. He deposed that his sister died and it was a dowry death. Ramadas, his father Chathunni, his mother Thankamani and Nisha tortured her physically and mentally. She was fisted and beaten by them several times and was taken back home. Alleging that property and money given were insufficient, she was severely tortured and even before pregnancy, she was forced to return home 2-3 times. It is his further version that they went for compromise talk with accused and told them that they should not ask money to Krishnaleena, instead they should ask them if they need any money. The accused promised not to torture her. According to PW 7, there were marks of torture on her body. Besides the gift received at the time of marriage, the accused demanded a further sum of ` 50,000/- (Rupees Fifty Thousand only) and gold ornaments as the gold ornaments given were inadequate. It is his deposition that at the time of returning to matrimonial home after delivering the child, 5 sovereigns of gold was given to the child. A cot, almirah, fridge, bed and articles like textiles worth ` 75,000/- (Rupees Seventy Five Thousand only) were given to the accused. A sum of ` 30,000/- (Rupees Thirty Thousand only) was given by the father and mother of the deceased to the hands of 3rd and 4th accused. They demanded ` 5 lakhs for purchasing a car. There was no means for them to give that amount. According to PW 7, he had a debt of ` 2,00,000/- (Rupees Two Lakhs only) to the bank. His father was also in debt. The accused wanted a deposit of ` 1,00,000/- (Rupees One Lakh only) in the name of child. It is his version that Krishnaleena telephoned twice and told them that she cannot bear the assault and accordingly she was taken back to parental home. After staying at parental home for 10 days, again she was taken to matrimonial home. After 10 to 15 days, she again returned complaining the same thing. They consoled her and after 10 to 12 days, sent her back to matrimonial home again. Later, on 08/04/2010, she died. He identified MO 1 marriage photo and MO 2 marriage invitation card.
11. Court below did not place reliance on the evidence of PW 7 stating that the statements made by him did not find a place in his previous statement to police. His case regarding vital aspects are newly introduced in Court. There is no evidence for the alleged handing over of ` 75,000/- and purchase of fridge, bed, gold ornaments and neither a case before the police to that effect. PW 7 pleaded ignorance regarding the circumstances under which the money was demanded by the accused. He denied the suggestion that the 3rd accused was suffering from cancer which proves that he is not acquainted with the accused.
12. PW 8 Chami is the father of the deceased. He deposed that his daughter was given in marriage to the first accused in the year 2008 as per religious rites and customs. At that time, 50 sovereigns of gold ornaments and an amount of ` 50,000/- (Rupees Fifty Thousand only) was given to the accused. It is his version that Krishnaleena resided at her husband's house for 3 to 4 months and stayed 3 to 4 months in his house. According to him, all the accused demanded money and ornaments repeatedly. She was beaten and abused. Within 4 months, she had returned to parental home 3 to 4 times. Meanwhile she gave birth to a baby boy and after 9 months of delivery, the child and Krishnaleena were taken to her matrimonial home by PW 8 and PW 9. It is his deposition that at that time, a sum of ` 70,000/- (Rupees Seventy Thousand only), a cot, fridge and a bed were given apart from a sum of ` 30,000/- (Rupees Thirty Thousand only). The said amount was given to the 1st accused at his residence. A few days later, the victim telephoned and told that she wanted to come back to parental home as she was being severely harassed and she was not allowed to live. PW 8 went to their home. It is his version that Krishnaleena told him that the accused told her that her ornaments were inadequate. PW 8 asked to remain there peacefully for the sake of child. It is his further version that ` 5,00,000/- (Rupees Five Lakhs only) was demanded by the accused and they also asked to deposit ` 1,00,000/- (Rupees One Lakh only) in the name of child. According to PW 8, this is the reason for the death of his daughter. She called him in the previous night and told that since the promised money was not paid by him, it is not possible to live and she would not be allowed to live. On the next day, he heard that his daughter is no more. He identified all the accused in Court and also identified MO 26 to MO 31 ornaments of the deceased and MO 32 as the can found at the place of occurrence.
13. Court below disbelieved the version of PW 8 stating that his evidence contradicts the testimony of PW 7 regarding the articles given and demand made by the accused. Court below found that according to PW 8, ` 30,000/- was given to the 1st accused whereas PW 7 stated that it was handed over to the parents of 1st accused. PW 8 did not speak the handing over of 5 sovereigns of gold to the child or clothes and other items worth ` 75,000/- besides cot, almirah, fridge and bed. The evidence are inconsistent as to what had happened to the victim after she was sent back to the house of the accused after delivering child.
14. PW 9 Rukmani is the mother of the victim. She deposed that her daughter was married to 1st accused in the year 2008. According to her, whenever her daughter had come to her house, she would complain about the harassment done to her by the accused demanding money and ornaments. The accused used to torture her daughter. Her daughter suffered a lot at the hands of the accused. PW 10 and PW 11 also deposed in the same way stating that the victim was being harassed by the accused in connection with demand for more money and gold ornaments. Court below did not place reliance on their evidence as there was no previous statement to police in line of their deposition in Court. There was no specific allegation of cruelty demanding dowry as well.
15. PW 18 Dr. Hithesh conducted the autopsy on the victim on 09/04/2010 and issued Ext. P17 post-mortem certificate. According to him, Krishnaleena died due to burns. It is pertinent to note that PW 18 did not depose the contents of Ext. P17 during his testimony. In the case at hand, evidence adduced by the prosecution would show that death of Krishnaleena was a suicide. The question of homicide does not arise at all. Prosecution does not even have a case of homicide. Nobody was present in the house at the time of incident except 3rd accused who was taking care of the child of the victim. There is also evidence to the effect that attempts were made to break open the room and water was seen poured over the body of the victim. Hence offence under Section 302 read with Section 34 of I.P.C. crumbles at the very outset.
16. The remaining question is whether the appellants are liable under Section 304B of IPC. On a perusal of the evidence, we could not find any evidence to hold that the victim was subjected to cruelty by the accused in connection with demand of dowry. Prosecution did not discharge its onus of proving specific instances of cruelty or harassment in connection with demand of dowry soon before the death of the victim. It can also be seen that specific instances of cruelty demanding dowry are not meted out from the evidence of PW 7 to PW 11. Even in matrimonial disputes, specific instances of cruelty is a material aspect. In criminal trial, there cannot be a conviction under Section 304B unless the above is proved. What we find from the evidence are general allegations regarding demand for dowry. When it was made and under what circumstances such demand was made are conspicuously lacking. Under which circumstances the victim complained of the demand of dowry etc., are some of the details which specify the demand for dowry and cruelty acted upon by the accused on the victim. No such evidence is available in this case. Ext. P1 contains no specific allegation of dowry demand or cruelty. None of the witnesses has a case or complaint that their statements were not completely recorded by the investigating officer or that it were erroneously recorded. The case of the prosecution before Court would indicate that many 'material aspects' were introduced in Court for the first time, which do not find a place in the previous statements of witnesses. Such omissions amount to contradiction which withers away the aspect of dowry harassment or cruelty. No suicide note or diary of the victim is available to support the case of the prosecution. We are in dark as to what specific harassment, whether physical or mental, the victim had undergone at the hands of the accused which allegedly drove her to commit suicide.
17. Of course, the death of Krishnaleena occurred after 2 years and 2 months of marriage. Evidence further reveals that her death was due to burns and it was a suicide. But nothing is shown in evidence to arrive at a conclusion that the victim was subjected to cruelty in connection with demand for dowry by the accused. Unless the same is proved by the prosecution at least as a probability by preponderance, no offence under Section 304B is made out and hence no presumption under Section 113B could be raised.
18. The observation by the trial Court that the victim committed suicide because the dowry demanded was not given to her by her parents is not backed by any evidence and hence needs no interference. Apart from that, we are of the view that there are sufficient reasons for the trial Court to arrive at its verdict of acquittal.
The appeals are liable only for dismissal and we do so.
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