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Judgment
Rengasamy, J.—This revision is directed against the conviction and sentence imposed by the learned Additional Sessions Judge, South
Arcot, at Cuddalore in C.A. No. 46 of 1989 concurring with the conviction and sentence of the Additional Assistant Sessions Judge, Cuddalore,
in S.C. No. 153 of 1988 for the offence u/s 304-B Indian Penal Code to undergo rigorous imprisonment for seven years.
The deceased Pushpa was married to the revision Petitioner herein on 24.4.1985 and she committed suicide by hanging in her husband''s house
on 28.7.1987 early morning and as the death had occurred within 7 years of the marriage and PW.1 the father of the deceased gave a complaint
Ex.P.1 alleging harassment by the husband, the case was registered and the investigation revealed that the revision Petitioner was harassing the wife
to get money from her father PW.1. Both the courts, referring to Section 304-B Indian Penal Code and also Section 2 of the Dowry Prohibition
Act, took the view that the harassment by the husband was by making demand for property or money for the purpose of subsistence of the
marriage and it would amount to a dowry demand. So, on that view, both Courts below came to the conclusion that the harassment by the revision
Petitioner herein to his wife, would fall u/s 304-B, Indian Penal Code.
The learned Counsel Mr. Balasabramaniam referring to the evidence of PW.1 would contend that PW.1 has nowhere pointed out that the
revision Petitioner was making demand of money in relation to the dowry and therefore the offence would not fall u/s 304-B Indian Penal Code. I
also carefully went through the evidence of PW.1 and he has spoken that his daughter the deceased, used to come frequently demanding money as
her husband was not able to maintain her as he was unemployed. PW.1 has nowhere stated that the Petitioner herein or his family members were
demanding any property or cash in connection with the marriage of his daughter, solemnised two years prior to the death of Pushpa. Section 304-
B reads.
(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances 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
for or in connection with any demand for dowry, such death would call ""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.
(2) Whoever commits dowry death, shall be punished with imprisonment for a term, which shall not be less than 7 years but which may extent to
imprisonment for life.
The important element of this Section is that the demand of the husband or his relation must be for dowry. Section 2 of the Dowry Prohibition Act
defines what is dowry. It reads as follows:
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 mahr in the case of persons to whom the
Muslim Personal Law (Shariat) applies.
Explanation II-The expression ""Valuable security"" has the same meaning as in Section 30 of the Indian Penal Code (45 of 1860)
The sentence ''at or before or at any time after in connection with the marriage of the said parties'' makes it clear that the demand made by the
husband or his relation must be connected with the marriage of the parties or in consideration of the marriage. The marriage is an event taking place
only once and if this demand is in possession with that event, then only it falls within the definition of the dowry. On a careful scrutiny of the
evidence of PW.1, it is not revealed anywhere that his son-in-law the revision Petitioner herein was claiming any dowry or any property or money
in relation to the marriage between himself and Pushpa. On the other hand, the evidence of PW.1 is so clear that his daughter was demanding
money at the instance of this revision Petitioner for the family expenses and also for his contract work as he needed some founds to carry on the
contract work. As a matter of fact, PW.1 has made it clear that as his daughter was in penury and starvation, he was providing small amounts of
Rs. l00 or Rs. 200 whenever she came demanding money at the instance of her husband. It is only P Ws.2 and 3 who have introduced the word in
the evidence, the dowry claim of the revision Petitioner. PW.2 has stated in his evidence that whenever the deceased Pushpa used to come to the
village, she used to tell him that her husband was harassing her as she was not given proper gift at the time of her marriage (Seervarisai), but he
used to console her. But when PW.1 himself has not spoken in his evidence that his daughter was complaining that her husband was harassing her
for not given the proper ''seer'' the evidence of PW.2 loses its significance for the alleged harassment on the ground of dowry. Similarly, PW.3,
who was a panchayatar, has spoken in his evidence that as the deceased Pushpa was staying in the house of PW.1 for a few months on account of
the misunderstanding with her to her husband, he, along with PW.2 and others, took her to her husband''s house and in a panchayat held for the
re-union of this couple. The revision Petitioner was complaining that the ""seer"" was not properly given to him and he would be able to live with his
wife only if such gifts were given to him. But PW.2, who also attended the panchayat, has not stated anywhere in his evidence that the revision
Petitioner herein made any complaint against his father-in-law for not providing sufficient ""seer"" as promised by him at the time of the marriage.
PW.1 also has not said so about any demand in the panchayat. Therefore, this evidence of PW.3 cannot be true for the alleged harassment
connected to the dowry. Unfortunately, the Courts below did not properly understand the significance of the word ''dowry'' employed in Section 2
of the Dowry Prohibition Act for bringing it as offence, only if the demand was made in connection with the marriage. Therefore, absolutely, there
is no evidence in this case to conclude that the revision Petitioner herein was treating his wife cruelly demanding property or cash towards the
dowry from his father-in-law.
Ex.P.l is the complaint given by PW.1 soon after the death of his daughter Pushpa, to the Police and he has stated therein that his daughter came
to him on 25.7.87 stating that her husband was harassing her frequently, that he consoled her and sent back to her husband''s house. Except the
word that her husband was harassing her frequently, there is nothing to say from Ex.P.1 that the husband was demanding dowry. Ex.P.4 is the
statement recorded by the Assistant Collector PW.13 during the inquest and in this statement also PW. 1 has simply stated that his daughter used
to come frequently demanding Rs. 500 or Rs. 200 or Rs. 100 at the instance of her husband and she was also complaining that her husband was
frequently harassing her to get money from him and on 25.7.87, she demanded Rs. 500 for the contract work of her husband, but as he had no
funds in his hands on that day, he arranged for payment through PW.2. In these statements also, recorded soon after the death of Pushpa, there is
no allegation anywhere that the revision Petitioner wad demanding money towards the dowry, which, according to the definition, relates to the
marriage, Therefore, I can boldly say that the alleged harassment of the revision Petitioner demanding money through his wife, even if it is true,
cannot fall within the ambit of Section 304-B Indian Penal Code, which has the important element, namely the demand for dowry which relates to
the marriage, As mentioned above, when the evidence is completely wanting in this case, for the demand of dowry, the Courts below were not
right in convicting this revision Petitioner u/s 304-B Indian Penal Code. Therefore, the conviction for the said offences has to be set aside.
The learned Public Prosecutor referring to Section 221 Criminal Procedure Code, would argue that even if the offence does not come u/s 304-
B Indian Penal Code, as the cruelty in this case has been established against the revision Petitioner, the offence would fall u/s 498-A Indian Penal
Code, for which he could be now convicted, for the lesser offence the learned Public Prosecutor refers to the oral evidence of P Ws. 1 and 2 and
also the complaint Ex.P.1 and the statement Ex.P.4 all, referring to the harassment made by the revision Petitioner to his wife, for extracting money
from PW.1 and therefore the offence squarely falls u/s 498-A Indian Penal Code for which this revision Petitioner has to be convicted. But the
learned defence counsel Mr. Balasubramaniam would contend that the Petitioner cannot be convicted for the said offence unless the charge has
been framed against him under the relevant Section, which has not been done in this case and therefore if the prosecution has not made out the
offence u/s 304-B Indian Penal Code, the revision Petitioner has to be acquitted. According to the learned Counsel, as the revision Petitioner was
facing the charge only u/s 304-B Indian Penal Code, he was defending that the harassment was not in relation to the dowry and he did not
seriously concentrate his defence upon the cruelty alleged, which is the only element for the offence u/s 498-A. As the elements for Section 304-B
are not merely the cruelty but also the same connected with the dowry, the accused may concentrate upon his defence in showing the absence of
one of the elements namely relation to dowry to escape the punishment of that Section. Only for the offence u/s 498-A, Indian Penal Code, he has
to show the absence of cruelty to escape the punishment. As mere was no charge against him for Section 498-A Indian Penal Code, we cannot
anticipate his defence for that Section pleading the absence of cruelty. Therefore, now, if he is convicted u/s 498-A Indian Penal Code, as there is
evidence, the revision Petitioner would be highly prejudiced as he was not given opportunity for defending that offence, though cruelty is the
common element for both the offences. The learned Counsel Mr. Balasubramaniam refers to a decision in Smt Shanti and Another Vs. State of
Haryana, wherein the Supreme Court has taken the view that to avoid any technical defects, it is necessary to frame separate charges for Sections
304-B and 498-A Indian Penal Code under both the Sections and if the case is established, they can be convicted under both Sections, but the
sentence can only be u/s 304-B Indian Penal Code. In view of the difficulty, which the accused would face if he is convicted u/s 498-A Indian
Penal Code without being a charge for the said offence, the Supreme Court has observed that separate charges are necessary for these two
different categories of offences, though the punishment can be either for Section 304-B or Section 498-A, Indian Penal Code, according to the
conviction. So, I also feel that the revision Petitioner cannot be convicted u/s 498-A without a charge for the said offence. The result would be
acquittal of the revision Petitioner.
Hence, the convictions and sentence of the Court below is set aside. The revision Petitioner is acquitted. The revision is allowed.