Rajendran and Another Vs State

R. Banumathi, J.@mdashAppellants are the accused 1 and 2 in S.C.No. 138/96 on the file of Principal Sessions Judge. Erode. By the Judgment (dated 15.7.1997) the Sessions Judge has convicted the appellants/accused under Sec.498-A, I.P.C. for demand of dowry from deceased-Punitha and under Sec.304-B, I.P.C. for causing the dowry death of deceased-Punitha.

2. The gist of charges framed against the appellants/accused, the findings of the trial Court and the sentence imposed upon them is as, noted below:-

3. Deceased-Punitha was the second daughter of P.W.1-Muniammal. She was given in marriage to A-1-Rajendran three years prior to the incident. At the time of marriage, one sovereign Gold Chain and Anklets were given. Thereafter, deceased-Punitha was living with A-1 and her mother-in-law-A-2-Nallammal at Periyapalayam.

4. Case of prosecution is that the appellants/accused were demanding for more Jewels. Two yeas after the marriage, the appellants/accused persisted in their demand for more jewels. Deceased-Punitha was driven out of the matrimonial house and she came to her mother''s house at Krishnampalayam. P.W.2-Shanmugam another son-in-law and brother of P.W.1 meditated and about 10 days prior to the occurrence, Punitha was taken back to the house of the appellants/accused and left.

5. On 2.5.1994, P.W.2 received a Telegram informing about the death of Punitha. P.Ws.1 and 2 went to Periyapalayam. They noted injury around the neck of deceased-Punitha. When they questioned the appellants/accused about the cause of death, the appellants/accused did not properly respond.

6. Complaint and Registration of Case:- Complaining about the death of her daughter-Punitha and expressing her doubts on the cause of death, P.W.1 lodged Ex.P.1-Complaint before Arachalur Police Station. On receipt of Ex.P.1, P.W.9-Sub-Inspector of Police registered a case in Crime No.215/94 under Sec.304-B, I.P.C. under Ex.P.13-F.I.R.

7. Investigation:-Death was within three years after the marriage. Hence, P.W.10-Revenue Divisional Officer had taken up initial investigation on 3.5.1994-She inspected the house of the appellants/accused and made inquiry, Ex.P.15 is the Observation Mahazar and Ex.P.16 is the Rough Plan. Examining the witnesses, P.W.10 conducted the inquest on the body of deceased-Punitha. Ex.P.17 is the Inquest Report. On the basis of the Statements recorded from P.Ws.1 and 2 and other witnesses and forming her opinion, P.W.10 "cause to the conclusion that Punitha was murdered by her husband Rajendran for dowry and as such he had become liable for criminal action. His mother Nallammal who is reported to harass the deceased, demanding dowry is also equally responsible for the offences."

8. After the inquest, the body was sent to Autopsy. On 4.5.1994, P.W.7-Dr.Theivanai conducted the Autopsy on the dead body of the deceased-Punitha. The body was in a high decomposed state. Internal organs were also highly decomposed. Viscera was sent for Chemical Analysis. Hyoid Bone was found to be intact. P.W.7 stated that "No opinion could be given regarding the cause of death due to highly decomposed body". Ex.P.4 is the Post-mortem Certificate and Ex.P.5 is the Final Opinion of P.W.7-Post mortem Doctor.

9. P.W.11-Deputy Superintendent of Police had taken up the further Investigation M.O.-1-Knife, M.O.2-Bloodstained Jacket, M.O.3-Blood-stained Cot were seized under Ex.P.2-Mahazar. On 3.5.1994 - 12.30 p.m. the appellants/accused were arrested and sent to Judicial custody. On completion of Investigation, P.W.12-Deputy Superintendent of Police filed the charge-sheet against the appellants/accused u/Ss.302,498-A, I.P.C. and u/S.4 of Dowry Prohibition Act.

10. In the trial Court, to substantiate the charges against the appellants/accused, P.Ws.1 to 12 were examined. Exs.P.1 to 18 were examined. Exs.P.1 to 18 were marked. M.Os.1 to 6 were produced. The appellants/accused were questioned under Sec.313, Cr.P.C. about the incriminating circumstances and evidence. Denying all of them, the appellants/accused had stated that a false case is foisted against them.

11. Upon consideration of the evidence, learned Sessions Judge found that the death was occasioned in a suspicious circumstance and the appellants/accused are responsible for the same. However, finding that evidence is wanting for substantiating the Charge of Homicidal death of Punitha, the appellants/accused are acquitted of the charge under Sec.302, I.P.C. They were acquitted under Sec.302, I.P.C. mainly on the ground of want of Medical Evidence as to the cause of death. However, on the evidence of P.Ws.1 and 2, learned Sessions Judge found that the deceased-Punitha was subjected to ill-treatment and cruelty prior to the occurrence and the trial Court found the appellants/accused guilty under Sec.304-B, I.P.C. and also for Demand of Dowry under Sec.498-A, I.P.C. and sentenced them to undergo Rigorous Imprisonment as aforesaid in para (2).

12. Aggrieved over the conviction, the appellants/accused have preferred this appeal. Learned Senior Counsel Mr.V.K.Muthusamy for the appellants/accused made elaborate submissions contending that on the basis of evidence of interested witnesses-P.Ws.1 and 2, the trial Court was not justified in convicting the appellants/accused for the offences punishable under Sections 304-B and 498-A, I.P.C. It is further submitted that no convincing evidence is adduced by the prosecution showing that deceased-Punitha was being ill-treated by the appellants/accused demanding for dowry soon before her death. Conviction under Sec.304-B, I.P.C. is very much assailed mainly on the ground that charges were framed only for those offences under Sections 302 and 498-A, I.P.C. and the trial Court erred in convicting the appellants/accused under Sec.304-B, I.P.C. Placing reliance Shamnsaheb M. Multtani v. State of Karnataka, (2001) 2 SCC 577 much arguments are advanced contending that the conviction under Sec.304-B, I.P.C. without affording opportunity to the appellants/accused has caused serious prejudice to the appellants/accused and the conviction under Sec.304-B, I.P.C. is unsustainable. It is the further contention that evidence of P.Ws.1 and 2 would not establish the essential ingredients of Sec.498-A, I.P.C. and the conviction under Sec.498-A, I.P.C. is also unsustainable.

13. Mainly laying-emphasis upon the evidence of P.Ws.1 and 2 and Ex.P-18-Report of P.W.10-Revenue Divisional Officer, learned Government Advocate (Criminal Side) Mr.A.N.Thambidurai submitted that prosecution has clearly brought out the demand of dowry by cogent evidence and on that basis, the trial Court has rightly convicted the appellants/accused under Sec.498-A, I.P.C. Taking me through the evidence of P.Ws.1 and 2 and Ex.P.1-Complaint, learned Government Advocate (Criminal Side) has further submitted that the demand of dowry soon before her death is well proved by the prosecution and on proper appreciation of evidence, the trial Court has rightly convicted the appellants/accused under S.304-B, I.P.C. It is further submitted that once the factual positions are established, the presumption under Sec. 113-B of the Indian Evidence Act could be invoked and the conviction of the appellants/accused based on the findings and materials on record warrants no interference.

14. Upon consideration of the submissions, impugned judgment, evidence and other materials on record, in my view, the following points arise for consideration in this Appeal:-

(i) On the evidence of P.Ws.1 and 2, whether the trial Court was not right in finding that the guilt of the appellants/accused for demand of dowry is proved?

(ii) Being charged for the graver offence-Homicidal Death under Sec.302, I.P.C., without framing the charge for the offence under Sec.304-B, I.P.C., was the trial Court right in convicting the appellants/accused under Sec.304-B, I.P.C.?

(iii) Whether conviction under Sec.304-B, I.P.C even without framing charge has caused prejudice to the appellants/accused?

(iv) On the facts and evidence on record, can the conviction under Sections 304-B and 498-A, I.P.C. warrants any interference?

15. Marriage was about three years prior to the occurrence. After the marriage, deceased-Punitha was living in Periyapalayam along with her husband-A-1 and mother-in-law-A-2. Within three years of marriage, Punitha died. On 2.5.1994, on hearing the news of her death, P.W.1-Muniammal-mother of Punitha, P.W.2-Shanmugam-Brother and Son-in-law of P.W.1 went Periyapalayam. When they removed the clothes, they found the injuries around the neck of the body of Punitha, P.Ws.1 and 2 entertained doubts that the appellants/accused had committed the murder of Punitha. Even in Ex.P.1-Complaint, P.W.1 expressed her doubts as:-

(Matter in vernacular omitted. Ed.)

16. The initial investigation thus proceeded on the footing of Homicidal Death that the appellants/accused might have committed the murder of Punitha. P.W.10 -Revenue Divisional Officer has examined the witnesses and she has conducted elaborate enquiry. During the inquest, she examined A-1. On the basis of enquiry, in her elaborate report-Ex.P-18, she has narrated the occurrence on the night of 1.5.1994 that A-1 caused lacerated injuries with small knife to Punitha on her neck. Thereupon, he is alleged to have pressed her mouth hermitically, stuffed with Saree and made her suffocated to death. To make it believe as a suicide by herself, the body was lifted and hung and A-1-husband is alleged to have come out of the house by removing the rafters in the roof. On such findings, P.W.10 opined that "Punitha was murdered by her husband Rajendran for dowry.....and his mother-Nallammal (A-2) also harassed the deceased-Punitha demanding dowry."

17. Findings and opinion of P.W.10 that A-1 murdered Punitha is totally unsupported by the medical evidence. Though the death was said to have been caused, causing lacerated injuries with a small knife around the neck, P.W.7-Post-mortem Doctor could not give any opinion regarding the cause of death since the body was in a highly decomposed state. As per Ex.P.8-Hyoid Bone Examination Report, there was no fracture in the Hyoid Bone and it was intact. No blood-stains were noted on M.O.1-knife. That A-1 committed the murder of Punitha on the night of 1.5.1994 is unsupported by any other evidence.

18. Originally Ex.P.13-F.I.R. was registered under Sec.304-B, I.P.C. In fact, on the basis of Ex.P.18-Report of the Revenue Divisional Officer, the case is said to have been altered into Sec.302, I.P.C. Even the Express Report altering the offence is not produced. The Investigating Agency appears to have simply proceeded on the premise that A-1 committed murder of his wife-Punitha in his house at Periyapalayam on the night of 1.5.1994. That the murder was perpetrated inside the house is totally unsupported by any other evidence. Excepting the surmises of P.Ws.1 and 2 that the appellants/accused are responsible for the Homicidal Death of Punitha, the charge under Sec.302, I.P.C. remains unestablished. Finding that the prosecution could not establish the Homicidal Death of Punitha, learned Sessions Judge has rightly acquitted the appellants/accused under Sec.302, I.P.C.

19. Finding that Punitha was subjected to dowry harassment and that death was within three years of her marriage otherwise than under normal circumstances, learned Sessions Judge concluded that the offence under Sec.304-B, I.P.C. is made out. Main point for consideration is that in the absence of framing of the charge for the offence under Sec.304-B, I.P.C. whether the trial Court was right in convicting the appellants/accused for dowry death under Sec.304-B, I.P.C.

20. Sections 221 and 222, Cr.P.C. are the two provisions dealing with the power of a criminal Court to convict the accused of an offence which is not included in the charge. The primary condition for application of Section 221, Cr.P.C. is that the Court should have felt doubt, at the time of framing the charge, as to which of the several acts (which may be proved) will constitute the offence on account of the nature of the acts or series of acts alleged against the accused. In such a case the section permits to convict the accused of the offence which he is shown to have committed though he was not charged with it. But, in the nature of the acts alleged by the prosecution in this case, there was absolutely no scope for any doubt regarding the offence under Sec.302. I.P.C., at least at the time of framing the charge.

21. Section 222(1), Cr.P.C. deals with a case "when a person is charged with an offence consisting of several particulars". The section permits the Court to convict the accused "of the minor offence, though he was not charged with it". Sub-section (2) deals with a similar but slightly different situation-"When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it."

22. The question when a person is charged with an offence under Secs.302 and 498-A, I.P.C. and when the trial Court acquits the appellant/accused under Sec.302, I.P.C, can the Court convict him under Sec.304-B, I.P.C. on the premise of finding that Sec.304-B, I.P.C is the minor offence came up for determination before the Supreme Court in Shamnsaheb M.Multtani v. State of Karnataka (supra). Finding that Sec.304-B, I.P.C. cannot be regarded as minor offence of Sec.302, I.P.C., the Supreme Court has held "the composition of the offence under Sec.304-B, I.P.C. is vastly different from the formation of the offence of murder under Sec.302, I.P.C. and hence the former cannot be regarded as minor offence vis-a-vis the latter."

The Supreme Court has further held:

"In such a situation, if the trial Court finds that the prosecution has failed to make out the case under Sec.302, I.P.C., but the offence under Sec.304-B, I.P.C has been made out, the Court has to call upon the accused to enter on his defence in respect of the said offence. Without affording such an opportunity to the accused, a conviction under Sec.304-B, I.P.C would lead to real and serious miscarriage of justice.

23. Observing that if the charge under Sec.304-B, I.P.C is not included, by including the same, the Court should afford an opportunity to the appellants/accused, in the abovesaid case the Supreme Court setting aside the conviction under Sec.304-B, I.P.C has sent back the matter to the trial Court to proceed for the stage of defence evidence.

24. On behalf of the appellants/accused reliance is mainly placed upon the above decision in support of the contention that in the absence of framing the charge under Sec.304-B, I.P.C. the conviction is unsustainable.

25. To appreciate this contention, we may usefully refer to the essential ingredients of Sec.304-B, I.P.C. which are:

(i) The death of a woman should be caused by burns 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".

Section 113-B of the Evidence Act is also relevant for the case at hand. Both Sec.304-B, I.P.C., and Sec. 113-B of the Evidence Act were inserted by Dowry Prohibition (Amendment) Act, 43 of 1986 with a view to combat the increasing menace of dowry-deaths.

27. To prove the demand of dowry, prosecution has examined P.Ws.1 and 2. Both of them have consistently spoken about the Jewels and Cash given at the time of marriage, which was about three years prior to the occurrence. For about two years, deceased-Punitha was living happily with the appellants/accused. Thereafter, the appellants/accused started demanding Jewels and Cash. Therefore, deceased-Punitha was frequently visiting her mother-P.W.1 informing her about the demand of the appellants/accused for more Jewels. About two months prior to the occurrence also, there was demand for Jewels and deceased-Punitha was in her mother''s house at Krishnampalayam for about two months. Only about ten days prior to the occurrence, she was taken back to the house of the appellants/accused at Periyapalayam by P.W.2. P.W.2 informed, the appellants/accused that the Jewels would be given after sometime. Within few days thereafter, Punitha has met the fateful end.

28. The consistent evidence of P.Ws.1 and 2 clearly brings forth:-

(i) that there was demand of further Jewels and that she was forced to leave the matrimonial house about two to five months prior to the occurrence.

(ii) She stayed with her mother for about two months.

(iii) Only about 10 days prior to the occurrence she was taken back to the house of the appellants/accused and left; within ten days, she died otherwise than a normal circumstance.

The core-evidence of P.Ws.1 and 2 substantially establishes demand of dowry and cruelty "soon before her death."

29. P.W.3-Rani is the co-sister of deceased-Punitha. She married A-1''s elder brother. P.W.5-Pappathi is the neighbour. Both of them have stated about the frequent quarrel between the appellants/accused and the deceased-Punitha. P.W.3 who was to speak about the demand of dowry and cruel treatment on which aspect she has turned hostile. Her hostility on that aspect does not in any way undermine the evidence of P.Ws.1 and 2. The evidence of P.Ws.3 and 5 substantially brings home that there was frequent and continuous quarrel between the appellants/accused and deceased-Punitha.

30. Clause (b) of Explanation to Sec.498-A, I.P.C. enacts that the 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 property or valuable security or is on account of the failure by her or any person related to her to meet such demand would amount to cruelty for the purposes of Sec.498-A, I.P.C. Clause (b) does not make each and every harassment cruelty. The harassment has to be with a definite object, namely to coerce the woman or any person related to her to meet any unlawful demand.

31. Thus, it is not mere single instance of demand for dowry or Jewels. There must have been continuous demand. The marriage was about three years prior to the occurrence. There was normal matrimonial life for about two years. Thereafter, the demand for Jewels and Money persisted. As noted earlier, about two months prior to the occurrence, unable to bear with the demand and the cruel treatment, deceased-Punitha had come out of the matrimonial house and stayed with her mother-P.W.1. From the evidence of P.Ws.1 and 2, continuous demand and harassment meted out to the deceased-Punitha is well established. Hence, the conviction under Sec.498-A, I.P.C. is to be sustained.

32. Now, the crucial question is whether the trial Court was right in convicting the appellants/accused under Sec.304-B, I.P.C. finding that the prosecution has proved the demand of dowry and cruelty "soon before her death".

33. A bare reading of Sec.304-B, I.P.C. would show that when a question arises whether a person has committed the offence of a dowry death of a woman what is necessary is that it should be shown that soon before her unnatural death, which took place within seven years of the marriage, the deceased had been subjected to cruelty or harassment for or in connection with the demand of dowry, if that is shown, the Court shall presume that such a person has caused the dowry death. It is imperative, for invoking the legal presumption, to prove that soon before her death she was subjected to such cruelty or harassment.

34. Elaborating upon the expression "soon before her death" in Hiralal v. State, 2003(2) Apex Court Judgments 342 (S.C.): 2003(3) Criminal Court Cases 187 (S.C.): 2003 SCC (Crl.) 2016, the Supreme Court has held thus:

"A conjoint reading of Sec. 113-B of the Evidence Act and Sec.304-B, I.P.C. shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of "death occurring otherwise than in normal circumstances". The expression "soon before" is very relevant where Sec. 113-B of the Evidence Act and Sec.304-B, I.P.C. are pressed into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by the prosecution. "Soon before" is a relative terms and it would depend upon the circumstances of each case and no strait jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Ser. 113-B of the Evidence Act."

35. Applying the above principles to the facts and evidence of this case, it is clear that the demand of dowry about two months prior to the occurrence-"soon before her death" is well proved. Only about ten days prior to the occurrence, deceased-Punitha was taken back and left in the house of the appellants/accused. Thus, by establishing the demand and cruelty soon before her death, the prosecution has succeeded in establishing the "live link" between the demand of dowry and death. Though the ingredients under Sec.304-B, I.P.C. are proved by the prosecution, no charge was framed under Sec.304-B, I.P.C. Since the composition of offence under Sec.304-B. I.P.C. is vastly different from murder under Sec.302, I.P.C., before proceeding to record conviction under Sec.304-B, I.P.C. the trial Court ought to have altered or added the charge under Sec.304-B, I.P.C. Under Sec.217, Cr.P.C. the Court ought to have called upon to afford opportunity to the appellants/accused to answer such added or altered charge.

36. This point of acquitting under Sec.302, I.P.C. and convicting under Sec.304-B, I.P.C. came up for consideration before the Supreme Court in Shamnsaheb M. Multtani v. State of Karnataka, (2001) 2 SCC 577 , the Supreme Court set aside the conviction under Sec.304-B, I.P.C. observing that such conviction is unsustainable as the same would lead to real and serious miscarriage of Justice. Setting aside the conviction, the Supreme Court sent back the matter to the trial Court with a direction to proceed from the stage of defence evidence. In the case in hand also, the conviction under Sec.304-B, I.P.C. is unsustainable for the simple reason that no charge was framed nor opportunity was afforded to the appellants/accused to answer the altered charge. At this distant point of time, this is not a fit case to remand the matter for fresh consideration on the charge under Sec.304-B, I.P.C. From the materials on record, it is seen that even in the year 1996, A-2 was aged about 65 years. In those circumstances, it would not be appropriate to direct the appellants/accused to go back to the trial Court to answer the charge under Sec.304-B, I.P.C. Therefore, the conviction under Sec.304-B, I.P.C. is to be set aside.

37. The reasonings and findings of the trial Court are based upon the evidence and materials on record. For the reasons stated in para (31), the conviction of the appellants/accused under Sec.498-A, I.P.C. is to be maintained.

38. Therefore, the impugned judgment of the Principal Sessions Court in S.C.No. 138/96 (dated 15.7.1997), convicting the appellants/accused under Sec.498-A, I.P.C. and the sentence of imprisonment is confirmed. However, the conviction under Sec.304-B, I.P.C. is set aside and this Appeal is partly allowed.

39. Since the appellants/accused are on bail, the trial Court is directed to secure the custody of the appellants/accused and make them to undergo remaining period of sentence imposed under Sec.498-A, I.P.C.