Sreedharan, J.@mdashAccused, 4 in number, were charged with offence punishable under sections 498 (A) and read with section 34 of the I. P. C. After trial, the learned Additional Assistant Sessions Judge, Kottayam convicted first accused for the offence u/s 498 (A) of the I. P. C. and sentenced him to undergo rigorous imprisonment for three years and to pay a fine of Rs. 5,000/- with a default clause to suffer simple imprisonment for 9 months. Accused 2 to 4 were acquitted u/s 235 (1) of the Code of Criminal Procedure. First accused challenged that decision before the Sessions Court, Kottayam by preferring Crl. Appeal No. 52/90. While that appeal was pending. State preferred Crl. Appeal 366/90 questioning the correctness of acquittal of all the accused for the offence u/s 304(B). Thereupon this court withdrew Crl. Appeal 52/90 from the Sessions Court and re-numbered the same as Crl. Appeal No. 73/92. Arguments were heard on these two appeals and we are disposing of them by this common judgment. The prosecution version of the incident, in short, is as follows :-First accused Jose alias Saju married Bijimol, the daughter of P. Ws. 2 and 3 on 31-1-88. Accused 2 and 3 are the parents of the first accused, 4th accused is his elder brother. In connection with the demand for dowry accused subjected Bijimol to cruelty and harassment. As a result of that, she committed suicide by hanging on 15-10-88 at about 12. 15 P. M.
2. P. W. 1, the brother of the deceased went to the police station and gave Ext. P1 First Information Statement, to P. W. 16, the Assistant Sub Inspector of Police at 1, 30 P. M. on the same day. On the basis of that, crime 398/88 of Palai Police Station was registered. The earlier part of the investigation was conducted by P. W. 17, the Deputy Superintendent of Police, Palai. Subsequently he entrusted the investigation with P. W. 18, the Sub Inspector of Police, Palai. He after completing the investigation laid the charge before court. On the side of the prosecution, P. Ws, 1 to 18 were examined, Exts. P1 to P20 were marked and M. Os. 1 to 3 were marked. On the side of the defence, D. Ws. 1 to 3 were examined, Exts. D1 to D3 and XI proved.
3. The short question that arises for consideration in these appeals is whether accused committed the offence punishable u/s 304 (B) or 498 (A) of the Penal Code.
4. In Crl. Appeal 382/91 this court laid down the essential factors to establish the offence u/s 304 (B) of the Code. Those ingredients are:-
(i) The death of a woman should be caused by burns or bodily injury or otherwise than under normal circumstances:
(ii) Such death should have occurred within seven years of her marriage;
(iii) Soon before her death she must have been subjected to cruelty or harassment by her husband or any relative of her husband;
(iv) Such cruelty or harassment should have been for or in connection with demand for dowry.
In this case, the issue is whether the prosecution has succeeded in establishing the above ingredients.
5. The marriage between Bijimol and first accused took place on 31-1-88. It was pursuant to the betrothal ceremony held on 11-1-88. It is the common case of parties that she returned to her paternal home from the house of the accused on 5-3-88. Thereafter she had no contact with the accused. While so, she committed suicide by hanging herself at about 12.15. P.M. on 15-10-88, From these circumstances, we are clear in our mind that prosecution succeeded in establishing the first two grounds among the 4 mentioned above i.e. Bijimol''s death was otherwise than under normal circumstances and that the death occurred within seven years of her marriage.
6. In order to establish cruelty and harassment, the prosecution would contend that there was demand for dowry by the accused. Dowry has been defined under the Dowry Prohibition Act as amended by Act 43 of 1986. It reads:-
In this Act, (i) "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.
According to counsel, to become dowry, the property or valuable security should have been given or agreed to be given in connection with the marriage. In other words, according to counsel, the giving or agreement to give should be prior to the marriage. If the valuable security or property agreed to between the parties prior to the marriage has been given at the time of the marriage, then the payment of dowry is over. Thereafter if additional security or property is claimed by one party to the marriage from the other, it is contended that, that demand will not come within the purview of the definition of dowry. In other words, according to counsel, if subsequent to marriage one of the parties to the marriage makes a fresh demand for any property or valuable security, that will not come within the definition of ''dowry'' under the Dowry Prohibition Act. That may amount to unlawful demand by one of the parties to the marriage. On account of such an unlawful demand for any property or valuable security if the woman is harassed on account of her failure or by any person related to her to meet such demand, that harassment cannot be on account of the non-payment of dowry. Such a harassment may be cruelty as defined in Section 498(A) of the Penal Code. As a result of such harassment if the lady commits suicide, that death will not be dowry death as defined in Section 304 (B) of the Penal Code. On account of such a death the husband or his relative may be liable for offences under the Penal Code other than that u/s 304(B). This argument, we feel, is well-founded. For a dowry death, as defined u/s 304 (B) of the Code, the death should have been in connection with any demand of dowry as defined in the Dowry Prohibition Act. If the death occurred independent of any demand for dowry, that death can under no circumstances be termed a dowry death. With this background we will analyse the evidence in this case.
7. P. Ws. 1 to 4 are the material witnesses to speak to the demand of dowry made by the accused. P. Ws. 2 and 3 offered one lakh of rupees in cash and 1 acre of property at Varhpor. That offer was agreed to by the accused. Consequently betrothal took place on 11-1-88. On that day P. W. 2. offered one lakh of rupees to the second accused. But he wanted that amount to be paid at his house. Thereupon P. W. 2 and others took the money to second accused in the evening of 11-1-88. After receiving that money, second accused wanted to have the property offered changed. He preferred to have 1 acre of land from Kurunthottam property instead of 1 acre at Vazhoor. That demand made by the second accused was not accepted by P. W. 2. Since they did not want to have the marriage agreement broken, P. W. 2 offered to assign 1 acre of land from Kurumthottam purayidam to the second accused on condition that it must be reconveyed if one lakh of rupees is paid within one year from the date of marriage. P. W. 2 wanted that agreement to be put it writing. Accused were not agreeable to that course. After mediation accused agreed to have gold jewellery worth one lakh of rupees in lieu of 1 acre from Kurumthottam purayidam. This was acceptable to P. Ws. 1 and 2. Consequently P. Ws. 1 to 4 along with accused 1 and 4 purchased gold ornaments worth one lakh of rupees from Bheema Jewellery in Kottayam. Thus the demand for dowry, according to P. Ws. 1 to 4, was settled and paid. Thereafter the marriage took place on 31-1-88.
8. The prosecution would now contend that accused put forth a demand for getting 1 acre of land from Kurumthottam purayidam. Bijimol was, it is said, harassed for getting that 1 acre land. She was sent out of the house of the accused on 5-3-88 stating that she need return only after getting the 1 acre of land from Kurumthottam purayidam. She continued to be in her paternal house because P. Ws. 1 to 3 were not prepared to part with 1 acre land in Kurumthottam. The subsequent demand in relation to 1 acre of Kurumthottam purayidam was raised subsequent to the marriage. On the date of marriage, even as per the evidence of P. Ws. 1 to 4, the claim for dowry was fully satisfied. Therefore if as a result of the subsequent demand Bijimol was harassed and as a result of that harassment Bijimol met with death otherwise than under normal circumstances, that death can never be a dowry death as defined, in Section 304 (B) of the Penal Code. This legal position has not been challenged by the learned Public Prosecutor. In such a situation, the prosecution cannot canvass for a conviction u/s 304 (B) of the Act. It means that Crl Appeal 366/90 has to fail.
9. The next question that arises for consideration is whether Bijimol was subjected to harassment on account of the unlawful demand for 1 acre of land from Kurumthottam purayidam. Bijimol was complaining of severe headache. She was then taken to the Malankara Orthodox Syrian Church Medical Mission Hospital, Kolenchery. Dr. Sojan Ipe attached to that hospital examined Bijimol. The case sheet prepared by that doctor has been produced in this case by D. W. 3 who is acquainted with the handwriting and signature of Dr. Sojan Ipe as per direction given by the Court. That record happened to be produced by D.W. 3 because Dr. Sojan Ipe was laid up consequent to a heart attack. Case sheet has been marked in the case as Ext. XI. The details noted therein are to the following effect:- Bijimol''s complaint was of head ache. She thinks that she is having cancer. She was found to have features of depression and suicidal tendencies. She was given medicine and directed to report after a week. She was again examined by the doctor on 15-2-88. She was suggested to have Psychiatric consultation or depression. Dr. Sojan Ipe had given a certificate which is marked in his case as Ext. D3. That certificate reads:
This is to certify that Mrs. GIGI JOSEPH (our hospital No. 442945) consulted me first on 08.02.1988, eight days following her marriage. Her main complaint was of head ache and she strongly believed that it was ''cancer''. She also showed additional features of depression and suicidal tendencies. Her eldest sister was on treatment for ''mental illness''.
X-ray skull and Electroencephalography were done to rule out any underlying organic disease of the brain. She was given the following drugs :
Tab. Zest and Tab. Septran for sinusitis, Cap. Sibelium for vascular head aches and Tab. Surmontil for depression.
She came back after a week for the first follow up (on 15-2-1988) when she was advised to get Dermatology consultation for hypertrophied scar of right ear and a Psychiatric consultation for depressive illness.
Exts. XI and D3 certificates show that within a week after the marriage Bijimol was seen afflicted by mental depression and she was showing suicidal tendencies. Dr. Sojan Ipe in Ext. XI noted, while describing the history of the patient stated her elder sister has mental illness and queried whether it was post partem psychosis. It is now submitted at the Bar that the elder sister of Bijimol committed suicide and in connection with that death police had registered Crime 226/90 of Palai Police Station.
10. P. W. 11 is the Priest who conducted the marriage between Bijimol and first accused. In cross-examination he admitted that immediately after the marriage second accused informed him that Bijimol is suffering from mental illness. On getting that information, according to him, he enquired with the elder sister of P. W. 3, the mother of deceased Bijimol. That Lady confirmed the mental illness of Bijimol. Thereupon according to this witness he suggested the accused to approach the ecclesiastical tribunal to get the marriage dissolved. He went on to state that he got the original of Ext. D1 application form and handed it over to the accused. On getting that application form filled, he attested the same and directed it to be filed before the Bishop. The application thus filed by the accused is marked in this case as Ext. D1. That document was produced by D. W. 1, the Vicar General of Palai Diocese who was the custodian of such applications. That application dated 19-3-88 supports the testimony of P. W. II. P. W. II was not questioned by the prosecution challenging the above statements made by him in his cross-examination. Prosecution had not cared to put even a single question in re-examination to that witness. We do not find any ground to doubt the veracity of this witness. He is fully supported by D.W. 1 and Ext. D1. D. W. 2 is the Priest attached to Cherpungal Church. He also slated before court that second accused informed him that Bijimol was not mentally normal and that she is not in cordial terms with first accused, the husband. He was also told about the treatment given to Bijimol from the hospital at Kolencherry. On coming to know of the mental condition of Bijimol, this witness suggested to send her to her paternal home. We do not find any ground for D. W. 2 to swear against the interest of Bijimol who belong to the Parish where D. W. 2. was the Parish Priest, From the evidence of P. W. 11, D. Ws. 1 to 3, Exts. Dl and XI, we come to the conclusion that Bijimol was mentally sick on 8-2-88 i.e. 7 days after the marriage. Phipson On Evidence Fourteenth Edition in paragraph 13 states that when insanity is prima facie established, it will be presumed to continue until disproved. Prima facie when Bijimol is shown to be mentally sick on 8-2-88 it can be presumed that she continued to be in that state of mind during the subsequent period as well. P. W. 11 has categorically stated that when he came to know of the mental illness of Bijimol from second accused, he made enquiries regarding her mental condition with the elder sister of her mother. The elder sister of her mother confirmed the mental disease of Bijimol. This statement given by P. W. 11 stands uncontroverted. Therefore it follows that the mental state of affairs noted in Ext. XI can be presumed to have been inexistence for some time earlier to 8-2-88 as well.
11. First accused instituted O. P. 63/88 before the District Court, Kottayam for getting a decree of nullity of marriage. In that petition he moved an application for examination of Bijimal by a Psychiatrist. Hearing on that petition was to be held on 15-10-88. On that day Bijimol committed suicide. According to prosecution, the said application and prayer by the accused to subject Bijimol to observation by a Psychiatrist will amount to cruelty. Cruelty has been defined in section 498(A) of the Penal Code. A reading of that definition will show that the above mentioned cruelty as a result of the application before the court dealing with the divorce application cannot be "cruelty" as defined in the Section. At this juncture it is worthwhile to note that Bijimol herself had approached the Civil Court by filing an indigent application as O. P 93/88 on - 29-8-88 for getting back the dowry paid to the accused. After having initiated such a proceedings on 29-8-88 she could not have raised a contention that she is being harassed on account of the additional demand for 1 acre of land in Kurumthottam purayidam.
12. As stated earlier, Bijimol returned to her paternal home on 5-3-88. Thereafter there was no contact with the accused. Accused could not have harassed her either. In such a situation, we are clear in our mind that soon before her death she had not been subjected to cruelty or harassment by her husband or any of the relatives of her husband. In view of the earlier discussion, we further come to the conclusion that there was no demand for dowry from the side of the accused either. Before parting with the case, we want to impress upon the Government the need of a Senior Police Officer investigating cases connected with atrocities to woman. In Shri Bhagawant Singh v. Commr. of Police Delhi 1983 Crl. L. J. 1081, the Supreme Court has highlighted the said need in the following terms:-
What is important to point out is that where the death in such cases is due to a crime, the perpetrators of the crime, not infrequently escape from the nemesis of the law because of inadequate police investigation. It would be of considerable assistance if an appropriately high priority was given to the expeditious investigation of such cases, if a special magisterial machinery was created for the purpose of the prompt investigation of such incidents, and efficient investigative techniques and procedures were adopted taking into account the peculiar features of such cases. Among other suggestions we would recommend that a female police officer of sufficient rank and status in the police force should be associated with the investigation from its very inception. There are evident advantages in that. In a case where a wife dies in suspicious circumstances in her husband''s home it is invariably a matter of considerable difficulty to ascertain the precise circumstances in which the incident occurred. As the incident takes place in the home of the husband, the material witnesses are usually the husband and his parents or other relations of the husband staying with him. Whether it was cooking at the kitchen stove which was responsible for the accident or according to the inmates of the house, there was an inexplicable urge to suicide or whether indeed the young wife was the victim of a planned murder are matters closely involving the intimate knowledge of a woman''s daily existence."
Presumably pursuant to the above observations made by the Supreme Court, circulars have been issued by the Director General of Police. One such circular No. D5/80938/93 dated 25-2-84 was made available to us by Additional Director General of Public Prosecution. It appears that the said circular and the observations made by the Supreme Court quoted above are being honoured more by its breach than by its observance. In the instant case, even though the Deputy Superintendent of Police started the investigation, he did not continue the same. He entrusted the investigation with the Sub Inspector of Police who completed the same and laid the charge. This procedure adopted by the Deputy Superintendent of police is to be condemned. We impress upon the Government to take necessary steps for getting cases relating to atrocities to woman investigated by Senior Officers in the Police Department.
In view of what has been stated above, we held that the conviction of the first accused u/s 498(A) is illegal. We set aside the conviction and sentence passed against him for the offence u/s 498 (A).
In the result, Crl. Appeal No 366/90 is dismissed and Crl. Appeal No. 73/93 is allowed by setting aside the conviction and sentence passed against the appellant. Bail bond executed by the appellant is cancelled. He is set at liberty.
