AI Structured Summary
Not yet generated for this judgment
Judgment
The appellants herein are the four accused in S.C
276/2007 of the Court of Session, Kottayam. They faced
prosecution in the court below under Sections 498A, 306
and 304-B read with 34 of the Indian Penal Code, on the
allegation that they abetted the commission of suicide by
one Ambily by a course of cruel conduct, including the
persistent demand for dowry. Ambily was married by the
1 st accused on 9.11.2000. She consumed poison at the
matrimonial home on 12.2.2007. She was immediately
taken to the Medical College Hospital, Kottayam, where
she died at about 6.15 a.m on 13.2.2007 while undergoing
treatment. The 2nd accused is the brother of the 1st
accused, and the accused Nos.3 and 4 are the parents.
The prosecution case is that deceased Ambily
had been subjected to much mental and physical
harassment by her husband and the in-laws by, and in
connection with their persistent demand for dowry, and that
Ambily put an end to her life by consuming poison, when
she felt the acts of cruelty at the hands of her husband and
the in-laws unbearable, or when her miseries in life due to
the said acts of cruelty aggravated day by day. On the
complaint made by the brother of deceased Ambily, the
Police registered the crime initially under Section 174 Cr.P.C.
After investigation, the Police submitted final report against
the husband and the in-laws under Sections 498A, 306 and
304-B I.P.C before the Judicial First Class Magistrate Court,
Changanassery. On committal, the case came up before the
Court of Session, from where it was made over to the
learned Additional Sessions Judge (Adhoc) II, Kottayam for
trial and disposal.
The accused appeared before the trial court, and
pleaded not guilty to the charge framed against them under
Sections 498A, 306 and 304B read with 34 of I.P.C . The
prosecution examined 14 witnesses in the trial court, and
proved Exts.P1 to P11 documents. When examined under
Section 313 Cr.P.C, all the accused denied the incriminating
circumstances and projected a defence that deceased
Ambily had been quarrelsome, that she had her own reason
to commit suicide, and that she had never been mentally or
physically ill-treated by them in any manner. The accused
examined three witnesses in defence. Ext.D1 portion of the
statements given by PW3 to the Police was also marked on
their side. The MO1 bottle of poison seized by the Police
from the seen of incident was also identified during trial.
On an appreciation of the evidence, the trial court
found all the accused guilty under all the three sections. On
conviction, they were sentenced to undergo rigorous
imprisonment for 7 years each under Section 304-B I.P.C, to
undergo rigorous imprisonment for two years each and to
pay a fine of 5000/- each under Section 498A I.P.C, and to
undergo another term of rigorous imprisonment for three
years each, and to pay a fine of 10,000/- each under
Section 306 I.P.C, by judgment dated 12.3.2009.
Aggrieved by the judgment of conviction, the accused have
come up in appeal.
When this appeal came up for hearing, the
learned senior counsel for the appellant submitted that there
is absolutely no evidence in this case to prove the essentials
of the offence of dowry death punishable under Section
304B I.P.C or even to prove that commission of suicide by
Ambily was in any manner abetted by any of these accused,
and also that the evidence adduced by the prosecution
would not convincingly and satisfactorily prove that
deceased Ambily had been subjected to any sort of cruelty
by any of the accused. The learned senior counsel also
pointed out some statements given by the material
witnesses that on many occasions, Ambily had picked up
quarrel with her husband on the ground that the parents of
her husband declined to assign some property in his name,
as agreed and offered by them, at the time of marriage.
On the other hand, the learned Public Prosecutor submitted
that the evidence adduced by the prosecution would
unerringly prove that Ambily had only miseries in her marital
life, and that she had been mentally and physically harassed
by her husband and the in-laws by a course of cruel conduct
by demanding more dowry and ornaments, and even
otherwise. The learned Public Prosecutor did not argue
much about the submissions made by the defence as regard
the offence under Section 304-B I.P.C.
Of the 14 witnesses examined in the trial court,
PW1 is the brother of deceased Ambily, PW2 is her mother
and PW3 is a cousin sister of Ambily. PW4 is the Revenue
Tahsildar who conducted inquest over the body of the
deceased, PW7 is only an attestor to the Ext.P4 scene
mahazar, PW5 is the lawyer examined to prove that some
three days prior to the date of death, Ambily had
approached him to file a petition for divorce in the Family
Court on the ground of cruelty, PW6 is the Sub Inspector
examined to prove that on 12.5.2005 Ambily had filed a
petition against her husband alleging neglect and failure to
pay maintenance, PW8 is the Head Constable, who attested
the Ext.P5 seizure mahazar for the seizure of Ext.P3 petition
of Ambily, proved by PW6, PW9 is the Police Constable who
witnessed the seizure of the MO1 bottle of poison, PW10 is
the Secretary of the N.S.S. Karayogam examined to prove
the Ext.P7 marriage certificate, PW11 is the neighbour of
PW2 examined to speak about the case of cruelty retold to
him by the mother of the deceased, PW12 is the paternal
uncle of the deceased, examined to prove the allegations of
cruelty, PW13 is the Police Officer who investigated the case
and PW14 is the Sub Inspector who registered the F.I.R. Of
the three witnesses examined in defence, DW1 is the
person who had purchased 15 cents of property from PW2 .
DW2 is a neighbour of the accused examined to prove the
negative aspect that there was nothing wrong in between
the deceased and the 1st accused, and DW3 is the provision
shop owner examined to prove that payment for all the
grocery items purchased by deceased Ambily for the day-
today needs was made by the 1st accused and not by PW2.
DW2 has also given evidence that deceased Ambily was
somewhat quarrelsome, and he had occasion to witness
this.
This is a case of commission of suicide by a wife
within seven years from the date of her marriage. The
prosecution alleges that commission of suicide by the lady
was abetted by her husband and the in-laws, and also that
she had been harassed mentally and physically by them by
or in connection with demand for dowry. Let me first
examine whether the prosecution allegation under Section
304B I.P.C is acceptable, or whether such a conviction is
sustainable. In a case where the offence punishable under
Section 304-B I.P.C is alleged by the prosecution, the
concern of the court must be whether there are the
essential elements of the said offence in the evidence given
by the material witnesses, or in the other materials
projected by the prosecution by way of circumstantial
evidence. Section 304-B I.P.C runs as follows:
"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 dowry death.
Sub- section 2 provides the sentence, that the offence of
dowry death shall be punishable with imprisonment for a
term which shall not be less than seven years, but which
may extend to imprisonment for life.
So, many ingredients will have to be satisfied in
a prosecution brought under Section 304-B I.P.C. Those
ingredients are:
a. The death of a woman due to burns or bodily
injury, or otherwise than under normal circumstances;
b. That the death occurred within seven years from
the date of the marriage;
c. That she had been subjected to cruelty or
harassment by her husband or the relatives of the husband,
for, or in connection with dowry, soon before her death
One of the essentials to constitute the offence
under Section 304B I.P.C is that the deceased had been
subjected to mental or physical harassment or cruelty in
connection with any demand for dowry, soon before her
death. Such mental or physical harassment, some time back
or years back, or having no proximity with the date of death,
will not come under Section 304B I.P.C.
In Vipin Jaiswal v. State of Andhra Pradesh [
AIR 2013 SC 1567], the Hon''ble Supreme Court held that
in a case brought under Section 304B I.P.C, the prosecution
will have to prove beyond reasonable doubt that the
accused had subjected the victim to cruelty as defined
under Section 498A I.P.C, and that such harassment was
made in connection with demand for dowry soon before the
death. In Panchanand Mandal Alias Pachan Mandal
and Another v. State of Jharkhand [(2013) 9 SCC
800], the Hon''ble Supreme Court held that in a case where
evidence is not adequate to prove that the victim had been
subjected to cruelty or harassment in connection with any
demand for dowry soon before her death, the accused
cannot be convicted under Section 304B I.P.C. The Hon''ble
Supreme Court held that the element "soon before the
death" is very important, and such proximity between the
date of death and the alleged acts of cruelty for, or in
connection with demand for dowry must be proved by the
prosecution. In Baijnath and others v. State of Madhya
Pradesh [ AIR 2016 SC 5313], the Hon''ble Supreme
Court explained that the accused cannot be convicted
under Section 304B by applying the presumption under
Section 113B of the Indian Evidence Act, in a case where the
prosecution has failed to prove the proximity in between the
date of death and the alleged acts of cruelty, that the
deceased had been subjected to cruelty or harassment in
connection with demand for dowry soon before the death.
Thus, the Hon''ble Supreme Court has consistently held that
cruelty or harassment in connection with demand for dowry
soon before the death of the victim should be proved in a
prosecution under Section 304B I.P.C.
There is nothing in the evidence of the material
witnesses including the mother of the deceased, in this case
to prove that there had been such demand amounting to
cruelty soon before the death of Ambily. PW2, the mother,
PW12, the uncle, the brother examined as PW1, and also the
cousin examined as PW3 have given evidence
regarding some acts of cruelty and harassment undergone
by the deceased at the matrimonial home till 2005, when
she made a complaint alleging such cruelty and neglect on
the part of the husband. Regarding the acceptability of the
evidence of cruelty, I will discuss things later. There is
nothing in the evidence of any of the material witnesses to
show that there had been such demand for dowry and
ornaments by any of the accused in this case soon before
the death of Ambily. It has come out in evidence that in
2005, Ambily had made a complaint before the Police, and
a few days prior to the commission of suicide Ambily had
approached a Lawyer for filing a case for divorce on the
ground of cruelty, and also for realisation of the money and
ornaments due from him. This evidence will show that in
between 2005 and February, 2007 also, Ambily had
undergone some sort of cruel treatment at the hands of her
husband at the matrimonial home. But the very essential
element that she had been harassed or ill-treated by
demand for dowry and ornaments soon before the death, or
at any time just prior to the death is absent in the evidence
of the material witnesses. Thus, I find that the prosecution
has failed to prove the offence punishable under Section
304-B I.P.C in this case. So the said conviction is liable to be
set aside.
Now let me see whether commission of suicide
by Ambily was in any manner abetted by any of the
accused. Before coming to that aspect, let me see whether
the allegation of cruelty stands proved, as defined under
Section 498A I.P.C. The cruelty alleged or the cruelty meant
under Section 304B I.P.C, must be physical or mental
harassment for, or in connection with demand for dowry.
But any act of cruelty, mental or physical, whether it was in
connection with demand for dowry or not, will come within
the purview of Section 498A I.P.C. PW2 and PW3, the
mother and the cousin of the deceased have stated about so
many instances of cruelty told by the deceased. Of course,
PW1 has no direct knowledge about such things. His
evidence regarding cruelty is simply on the basis of what the
mother told him. The evidence of the paternal uncle is also
on the basis of what PW2 told him. So, PW1 and PW12
cannot be said to be material witnesses in this case,
because their evidence regarding cruelty will have only the
value of hear-say evidence. But that is not the case of the
evidence given by PW2 and PW3. It has come out in
evidence that Ambily and her husband started residing
separately from the Tharavdu house since 2003-2004.
There is no clear evidence on this aspect as to whether it
was since 2003 or 2004. However, on an examination of the
evidence, I find that they must have separated from the
Tharavadu house either at the end of 2003, or at the
beginning of 2004. The evidence given by PW2 and PW12
regarding cruelty is not satisfactory as against the parents-
in-law and the brother-in-law. What is at the best proved as
against them by their evidence is that on one or two
occasions, the brother-in-law had assaulted the deceased,
or on some occasions the mother-in-law had scolded her.
This evidence is not sufficient to constitute harassment by a
course of cruel conduct, as meant under Section 498A I.P.C.
True it is, that the deceased had told PW2 and PW3 about
her miseries in matrimony, or the different instances of
harassment, she had to undergo at the matrimonial home.
But every time, or most of the times, her complaint was
practically against the husband, and not against the in-laws.
Of course, there were some stray instances involving the in-
laws also, but the evidence on this aspect is not very definite
and clear to bring it within the purview of Section 498A I.P.C.
The cruelty meant under Section 498A I.P.C must be cruelty
by way of some voluntary acts or culpable acts constituting
a course of cruel conduct, subjecting the victim to some sort
of mental or physical harassment. Such evidence is there
only as against the husband, and not against the in-laws.
Just because the in-laws on one or two occasions had
scolded the daughter-in-law, or just because the brother-in-
law had on one occasion assaulted her, they cannot be
prosecuted under Section 498A I.P.C. But as against the
husband (1st accused) there is clear evidence given by PW2
and PW3 regarding the statements given to them by the
deceased.
PW6 is the Lawyer examined to prove that some
two or three days prior to the death of Ambily, she had
approached him to file a petition for divorce. His evidence is
that Ambily''s demand was to realise the amount of 3 lakhs
and the ornaments due from her husband, and also to
obtain divorce on the ground of cruelty. The Lawyer
affirmed in evidence that Ambily had told him about the
cruelty she had to undergo at the matrimonial home.
Ambily approached the Lawyer two or three days prior to
her death. She was advised by him to bring the marriage
certificate and other documents. After three days, Ambily''s
mother came and told him that Ambily is no more. This
evidence given by PW5 stands not discredited in any
manner. He has given evidence regarding the versions or
the statements of Ambily regarding her miseries in life or the
cruelty or harassment she had to undergo at the hands of
her husband.
On an appreciation of the evidence as discussed
above, I find that the prosecution has clearly proved the
allegations of cruelty, that Ambily had been subjected to
mental or physical harassment by her husband at the
matrimonial home while residing together with the parents-
in-law and also after separation at the end of 2003 or at the
beginning of 2004. The witnesses are consistent that even
after they started residing separately, the 1st accused
continued his cruel habits. A clear case of cruelty as meant
under Section 498A stands well proved by the evidence of
PW2, PW3 and PW5. I am well satisfied by their evidence
that Ambily had been subjected to harassment by a
continuous course of cruel conduct by the 1st accused while
residing at the matrimonial home with the parents-in-law
and even thereafter, while residing separately from them.
This constitutes the offence punishable under Section 498A
I.P.C and I find that the 1st accused is liable for conviction
under Section 498A I.P.C
Now the question is whether there is evidence to
prove the offence punishable under Section 306 I.P.C. Of
course, PW2 and PW3 have stated that Ambily committed
suicide due to the cruelty of her husband and the in-laws.
This evidence will not by itself prove the offence punishable
under Section 306 I.P.C. For a conviction under Section 306
I.P.C, there must be evidence to prove the nexus between
the alleged acts of the accused and the commission of
suicide by the victim. Relying on Sanju Sanjay Singh
Sengar v. State of Madhya Pradesh [AIR 2002 SC
1998],wherein the Hon''ble Supreme Court held that even a
provocation made by the husband to the wife ''to go and die''
will not constitute abetment of suicide under Section 306
I.P.C, this Court held in Faisal v. State of Kerala [ 2016
(2) KHC 578] that in a prosecution under Section 306 I.P.C,
the prosecution will have to prove the nexus between the
alleged acts of the accused and the commission of suicide.
What is important or relevant is not whether the deceased
was provoked to commit suicide, but whether the accused
had done anything positive by his words or conduct to drive
the victim to the commission of suicide.
The evidence given by PW2 in cross-examination
shows that two or three days prior to the commission of
suicide, Ambily had called her over telephone and had told
her that she would not commit suicide, and she was
determined to fight, or she would show how to live, or
survive. It appears that Ambily happened to make such a
statement some two or three days prior to the death, due to
some act of assault on the part of the husband. When she
met the lawyer some three days back, her demand was to
get divorce, and also to realise the money and ornaments
due from the 1st accused. The evidence given by the lawyer
does not contain anything to show that Ambily was in a
dejected or disappointed mood at that time, or that she
appeared to be really melancholic, or as a woman who has
lost all hopes in life. The evidence of the mother shows that
despite the cruel treatment of her husband, she was
determined to fight, or that she was confident that she
could survive the challenges in life including the negative
conduct of her husband. That is why she told the mother
that she would not commit suicide, and that she was
determined to fight and show to others how to live. This the
clear evidence given by the mother when cross-examined by
the defence. To extract from the evidence of PW2 about
what Ambily told her over telephone,"VERNACULAR MATTER OMITTED"
(Mother please don''t cry and aggravate your blood pressure. I will never commit suicide, I will show how to live")
The above statement extracted from
the evidence of PW2, as the statement told by the
deceased shows that the cruelty of her husband was not
the immediate cause of the commission of suicide. It is not
known what exactly led her to the commission of suicide.
Every act of cruelty may not by itself amount to abetment
as meant under Section 306 I.P.C. What is required for a
prosecution under Section 306 I.P.C is cruelty or negative
conduct of extreme nature and degree, which will have the
effect of driving the victim to the commission of suicide. To
attract Section 306 I.P.C, on the allegation of matrimonial
cruelty "there must be a situation where the act of the
accused would, in ordinary circumstances, drive the victim
to the commission of suicide" (Faisal''s case).
On an appreciation of the evidence given by PW2
and PW3, what this Court finds is that deceased Ambily had
some miseries in her life due to the ways of her husband, or
the cruel ways or her husband, but evidence does not
satisfy the court that it was those acts of cruelty that drove
Ambily to the commission of suicide. Just because there is a
presumption under Section 113A of the Evidence Act, the
court cannot mechanically convict the accused. Presumption is always a rule of evidence. A presumption
even when it is conclusive in nature, will not get the sanctity
of legal evidence. A presumption alone will not in normal
circumstances prove the guilt of the accused. The
prosecution is bound to prove the elements of cruelty, and
also the nexus in between the alleged acts of the accused
and the commission of suicide. When the prosecution has
failed to prove such a nexus, the court cannot draw the
presumption under Section 113A of the Evidence Act and
punish the accused under Section 306 I.P.C. This is the
position settled by this Court and the Hon''ble Supreme Court
consistently as regards Section 306 I.P.C and the
application of Section 113A of the Indian Evidence Act. In
this case, I find that the prosecution has failed to prove the
necessary elements of 306 I.P.C, or the required nexus in
between the acts of the accused and the commission of
suicide.
As found above, the conviction under Section
498A I.P.C made by the court below will have to be
confirmed, but the other convictions are liable to be set
aside. The sentence imposed by the court below under
Section 498A I.P.C is rigorous imprisonment for two years
and a fine of 5000/-. I find no scope for interference in the
sentence in the particular facts and circumstances of the
case. That the two children born in the wedlock are now
with the 1st accused, is not a ground to reduce the sentence.
The accused Nos.2 to 4 are found not guilty of any of the
offences alleged against them.
In the result, this appeal is allowed in part. The
accused Nos.2 to 4 (the appellants 2 to 4) are found not
guilty of the offences under Sections 498A, 306 and 304B
I.P.C and accordingly, they are acquitted of those offences
in appeal under Section 386(b)(i) of the Cr.P.C. The
conviction and sentence against them imposed by the court
below in S.C 276/2007 will stand set aside. The 1st
appellant (1st accused) is found guilty under Section 498A
I.P.C, and the said conviction is confirmed. However, the
conviction and sentence against him under Sections 306 and
304B I.P.C will stand set aside on the finding that he is not
guilty of those offences, and as regards those offences, he
will stand acquitted. While confirming the conviction as
against the 1st accused under Section 498A I.P.C, the
sentence imposed by the court below is also confirmed. He
will get the benefit of set off as already ordered by the trial
court.