Nazar vs State of Kerala

K.A. AbduI Gafoor, J.—Appellants/accused faced conviction for the offence punishable u/s 304B read with Section 34 I.P.C. First accused is sentenced to undergo imprisonment for life and second accused is sentenced to undergo imprisonment for 7 years u/s 304B read with Section 34 I.P.C. They are also directed to pay compensation of Rs. 50,000/- and Rs. 10,000/-respectively. The conviction is appealed against.

The marriage between the first appellant and deceased Soudha is not disputed. It was on 28.8.1997. Immediately after one month of the marriage, first accused, the husband of the victim, left for Gulf. Thereafter she was alone except for a few occasion with 2nd accused, her mother in law. Immediately after the marriage, both 1st accused and the victim visited her parental house. There was demand for dowry in the form of 25 cents said to be promised by PW.l, father of the victim. There was frequent demand thereafter. That 1st accused returned from Gulf after nearly about two years. There was occasion for PW.l to go to the house of accused persons in connection with the demand. He sought for time because of economic disability, as he could not meet the demand for 25 cents of land immediately. After a few days of his return, the victim committed suicide jumping into the well in the compound nearby to the residence of accused. It was in the above circumstances, charge sheet was laid against the accused, the husband and mother-in-law of the victim u/s 304B of the I.P.C.

The prosecution examined PWs.l to 15 marked Exts.Pl to P7 documents. Exts. Dl to D3 were marked on the defence side. MOs.l to 5 were identified. No witness was examined for the defence.

Assailing the conviction, it is contended by the appellants that in order to lay a charge u/s 304B, there should have been evidence for demand of dowry and cruelty and harassment in that regard "soon before her death". In this case there was absolutely no evidence for demand of dowry. Really PW. 1 had promised to give 25 cents of land in the name of the victim. It was a promise without demand. He had not fulfilled the promise. Therefore, there was no demand for dowry at all, to attract the ingredients of Section 304B. The 1st accused had been in Gulf. The incident occurred a few days after he returned from Gulf. There was no evidence of any cruel behaviour on his part or even harassment demanding dowry during his short stay in India just before the incident. So nothing had taken place soon before her death in the form of cruelty demanding dowry. Moreover it is contended that admittedly PW.l the father of the victim he had come to the residence of accused 1 and 2 immediately after the arrival of 1st accused from Gulf and had settled the matter. When the issue thus stood settled, there arises no question of any harassment for dowry.

It is further contended that the evidence of PWs.l and 9, the parents of the victim, is only an interested version. Even in cross examination PW.l admitted that nobody had demanded for 25 cents of property. So going by his evidence, the charge u/s 304B can be made out. The evidence given by PW.9 reveals embroideries and exaggerations as compared to that of PW.l, So PW.9, the mother of the victim, cannot be believed. Even admittedly by the parents, they did not have any information about the victim at least, for three days prior to the incident. The expression "soon before" has to be understood in the circumstances of each case. In this case, therefore, there was no demand for dowry or harassment or cruelty soon before the incident, it is submitted.

PW. 8, though a neighbour, had a case against the family of the accused persons, as there was a complaint by her against the brother of 1st accused. Therefore, her version has to be appreciated, keeping this aspect in mind. There is no independent evidence, in this case, to convict the appellants/accused u/s 304B. The decision reported in Sham Lal Vs. State of Haryana, , K. Prema S. Rao and Another Vs. Yadla Srinivasa Rao and Others, and Kans Raj Vs. State of Punjab and Others, are relied on by the appellants in support of their contentions.

It is contended by the learned Public Prosecutor that the Court below, based on the evidence on record found that there was cruelty as there was allegation that PW.8 had made a complaint against the brother of 1st accused. There was no reason to disbelieve her version. She has been the neighbour of the accused persons for a long period, about 7 years. She had been, almost everyday, hearing quarrel from the house of the accused. The victim had been coming to the house of PW.8, almost everyday, as spoken to by her, complaining about her fate that she was facing from accused. This was not only during the presence of 1st accused in the house, but also when 1st accused was away in Gulf. Merely because PW.l had gone to the house of accused persons, after 1st accused had arrived from Gulf, to say that he will give the land later, it cannot be said there was no harassment. The evidence of PW.8 shows that, even thereafter, there was continued harassment towards the deceased with respect to the property demanded as dowry.

There is also no reason to disbelieve PW. 1, the father, who had given a natural version of what had happened during the two years and what his daughter had told him on a previous occasion regarding the demand of dowry and the harassment and cruelty meted out in that regard by the accused persons. Even if the version of PW.9, the mother of the victim is taken as exaggeration, that is only a natural version given by a mother about the tragedy of her elder daughter among the two. This is a case where there is ample evidence for the offence punishable u/s 304B having been committed by the accused/appellants. Therefore, there is no reason for interference, the Public Prosecutor submits.

Dowry has been defined u/s 2 of the Dowry Prohibition Act, 1961. It means any property, as well, agreed to be given, at or before or any time after the marriage in connection with the marriage of the parties. Therefore, the property said to be demanded comes within the term "dowry" as defined in the said Act to attract the provisions of Section 304B I.P.C.

The facts relating to the decision in K. Prema S. Rao and Another Vs. Yadla Srinivasa Rao and Others, are also quite different. In this case there was "no evidence on record to show that land was demanded as a dowry".

In order to bring the offence u/s 304B, there shall be a death of a woman, caused by any burns and bodily injury or occurs otherwise than under normal circumstances within 7 years of marriage. Admittedly, the death of the victim occurred within 7 years of the marriage and the death was due to drowning as a result of jumping into the nearby well. Therefore, it was a death, occurred otherwise than under normal circumstances.

Apart from that, such death shall be shown to be out of cruelty or harassment meted out soon before her such death "for or in connection with any demand for dowry". The 1st accused is the husband and the 2nd accused is the mother-in-law, the closest relative of the husband. Therefore, they are the persons, falling within the fold of Section 304B I.P.C. Necessarily what shall be examined, in this case, is whether there is evidence as to harassment or cruelty by the accused "for or in connection with any demand for dowry" "soon before her death".

PW.8 is a neighbour, this is not disputed. She is aged about 35, she is the closest neighbour even. She had very categorically stated that while in the house of the accused persons, the victim had been harassed by her husband and her mother-in-law. It is evident from the subsequent sentence that what the witness mentioned was that her mother-in-law also had harassed her. She had further stated that on several occasions, the victim had come to her. Over and above that, she herself had heard, being a neighbour, such quarrel and such utterance from their house. She further stated that the victim had come to her, to say about her sufferings and further that

(Even 2, 3 days before the death, Soudha (victim) came to my house and told the entire matters and showed the injuries sustained by her, blood coming out from the nose because of the assault by her husband. She was weeping.) PW.8 asked why she was weeping. PW.8 had deposed before the Court below that, the victim had told her that 1st accused had struck her with the belt. The injury was also shown to PW.8. Even on the date of death, the victim had come to her asking for gruel as she was very hungry. PW.8 gave her a bread and gruel. The victim had told that she may not be able to suffer any more in the house of her husband. Even in cross-examination, she had repeated what she had narrated in the chief-examination. She had also stated that (Harassment started even before the husband went to Gulf. They were assault and scolding until he left for Gulf.)

But she had clearly stated that (I do not know anything about the assault by the mother). Mother means the mother-in-law, the 2nd accused. Thus there is ample evidence from an independent witness, PW.8, that there were harassment and cruelty on the part of at least the 1st accused and that it was due to non-conveyance of the property in their favour said to be promised at the time of marriage, by PW. 1.

PW. l is the father of the victim. In Ext.Pl First Information Statement given by him, immediately after the occurrence, he had categorically stated that as dowry, there was a demand for 12 sovereigns, Rs. 30,000/- and 25 cents of property. He could give only 12 sovereigns and Rs. 30,000/-. He could not give the property and that by demanding the property on several occasions, the victim had been subjected to assault and harassment. In his deposition as PW.l, he had very categorically stated, even without being shattered in the cross-examination, that even within 5 days of his return from Gulf, 1st accused and the victim visited the house, stayed for a day and before leaving, 1st accused had directed the victim to tell PW. 1 to convey the property. The direction given by 1st accused had been conveyed by the victim to PW.l. Immediately thereafter, they went to the house of the accused. The victim had later telephoned PW.l. PW.l went to the house of 1st accused. Then she insisted for the conveyance of the property. After one week PW.l again visited the house of 1st accused and tried to appease him that registration of the property can be done after a few days and until then, he shall not harass his daughter, the victim. Even after that incident, the victim had informed PW.l that 1st accused had inflicted injury on her with belt and that she was unable to suffer cruelty and she had decided to come back to her parental home. As accused 1 and 2 were not, at that time, in the house, PW.l said that she should not leave the house in their absence. The incident happened within 3 or 4 days thereafter. Thus, it is clear that she had committed suicide only because of the harassment demanding dowry.

It is submitted by the defence counsel that there -was no offer to give 25 cents. But PW.l had stated about the negotiations, in that respect, even before the marriage, in the presence of other persons. Even if accused had a case that there was no such demand, they could have examined such person to prove, otherwise. The presumption u/s 113B of the Evident Act may stare at them. No such effort has been made to rebut it. ,

An attempt is also made to contend that the death was as a result of an accident, stating that there was signs of sliding of sand near the well. The well was not protected by parapet. But the accused have no case that they were taking potable water from the well on the opposite side of the road abutting the property. In the absence of any evidence, that plea also cannot be accepted. Going by the evidence of PW.8 and PW. 1, it is clear that the harassment was continuing for long, including even on the date of incident when she had not been given anything for eating. The harassment proved in this case is not too remote in tune to attract the proposition laid down in para. 11 of the decision reported in Kans Raj Vs. State of Punjab and Others, . So the harassment had been there "soon before the death". The decision in Sham Lal Vs. State of Haryana, has no application to the facts of this case, as there was nothing in that case "on record to show that she was either treated with cruelty or harassed with the demand for dowry during the period between her having been taken to the parental home and her tragic end." Here the facts are different.

The evidence of PW.l clearly shows that he had gone to the house of 1st accused to tell him that he will give the property later, as he was then in financial constrains. This cannot be taken as admission of settlement of the dispute. The 1st accused was not satisfied with that. This is evident from the assault using belt, immediately after such appeasement by PW.l. Therefore, that contention also is not available in this case for the accused persons. This is a case of dowry death which squarely falls u/s 304B I.P.G. The involvement of 1st accused is also spoken to by PWs. 1 and 8. Therefore, there arises no question of 1st accused escaping conviction.

PW.8, an independent witness, as already discussed above had clearly deposed that she had not seen or heard 2nd accused, the mother-in-law, assaulting the victim. She also does not speak about any demand for dowry by her, though she had dissatisfaction about the beauty of the bride or the insufficiency of the jewellery that she possessed and further complained that, PW. 1 the father of the victim, had not stood by his promise to convey 25 cents of land property. That does not mean that she had demanded dowry. A mere dissatisfaction will not amount to demand of dowry. Thus it cannot be found undoubtedly that there was any demand for dowry and consequent harassment by 2nd accused. Therefore benefit of doubt has to go in favour of 2nd accused.

Taking into account, the nature of evidence in this case and the misery suffered by the deceased, we are not impressed by the plea to reduce the sentence passed on the 1st appellant.

Accordingly we allow the appeal in part and order as follows:-

1) The conviction of the 1st accused is upheld. Consequently the sentence imposed on him is also confirmed.

2) The conviction of the second appellant/second accused in S.C. No. 443/2001 on the file of the II Additional Sessions Court, Kozhikode is set aside giving her the benefit of doubt.

3) Bail bond executed by 2nd accused shall stand cancelled.