Kumarasamy Vs State Rep.by

The State represented by The Assistant Commissioner of Police, Guindy Range, Chennai – 600 032. (Crime No.2777 of 2013 in J7, Velachery Police Station)

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...Respondent/Respondent

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Prayer: Criminal Appeal filed under Section 374(2) of the Criminal Procedure Code, 1973, to admit and allow the appeal by setting aside the Judgement passed by learned Sessions Judge, Mahalir Neethimandram, Allikulam, Chennai in SC No.54 of 2016 dated 08.09.2022.

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For Appellant : Mr.A.Nagarajan for Mr.M.Selvam

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For Respondent : Mr.C.E.Pratap Government Advocate (Crl.Side)

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JUDGMENT

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This Criminal Appeal has been filed by the accused, challenging the conviction and sentence imposed upon him, vide Judgment dated 08.09.2022 in S.C.No.54 of 2016, on the file of the learned Sessions Judge, Mahalir Neethmandram, Allikulam, Chennai.

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2(a). The case of the prosecution is that the appellant and the deceased got married on 26.12.2012, in the presence of elders; that after marriage, they were living in Andhra Pradesh; that at the time of marriage, the father of the deceased had gifted 100 sovereigns of gold jewels, 5 kg of silver utensils, Rs.10 lakhs of cash, besides executing a gift deed for 5 acres of agricultural land in favour of the deceased; that on 14.01.2013, the appellant had sent the deceased to her aunt's house; that when the father and the aunt of the deceased asked the appellant to take her back, the appellant is said to have told them that he would take the deceased only if 100 sovereigns of gold jewels was handed over to him and the land was transferred to his name; that a compromise was arrived at by which, the appellant agreed to receive Rs.2,00,000/- (Rupees Two Lakhs only) and thereafter, took the deceased to Chennai, where he was working from

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January 2013 and caused cruelty in connection with dowry demand, as result of which, on 07.10.2013, the deceased committed suicide.

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(b). On the complaint given by P.W.1, the landlord of the house in which the appellant and the deceased resided, a case in Crime No.2777 of 2013 was registered under Section 174 (3) of Cr.P.C. The Sub Inspector of Police/P.W.10, who registered the FIR, had handed over the investigation to P.W.12/Assistant Commissioner of Police. An inquest was conducted by the Revenue Divisional Officer, who gave the report [Ex.P9] under Section 174 of Cr.P.C. The investigation was thereafter taken up by P.W.13/Assistant Commissioner of Police, who, on examination of further witnesses, had filed the Final Report against the appellant for the offences under Sections 498-A and 306 of the Indian Penal Code.

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(c) It is seen from the record that though the Final Report was filed only for the offence under Section 306 of the IPC, the learned Sessions Judge had framed charges under Sections 498-A and 306 of the IPC and, in the alternative, for the offence under Section 304-B of the IPC and when questioned, the appellant pleaded 'not guilty.'

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(d). To prove its case, the prosecution examined 13 witnesses as

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P.W.1 to P.W.13 and marked eleven documents as Exs.P1 to P11. When the appellant was questioned under Section 313 of the Cr.P.C. on the incriminating circumstances appearing against him, he denied the same. The appellant had neither examined any witness nor marked any document.

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(e) The Trial Court on consideration of the oral evidence, especially the evidence of P.W.2 to P.W.5, held that the deceased was subjected to cruelty on account of dowry demand soon before her death and found the appellant guilty of the offences under Sections 498-A and 304-B of the IPC and also under Section 306 of the IPC and sentenced the appellant as

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follows:

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*Offence under*	*Sentence imposed*
	To undergo rigorous imprisonment for three years and to
498-A of the IPC	pay a fine of Rs.5,000/-, in default to undergo simple imprisonment for two months.
	To undergo rigorous imprisonment for ten years and to
304-B of the IPC	pay a fine of Rs.5,000/-, in default to undergo simple imprisonment for three months.

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Offence under Sentence imposed To undergo rigorous imprisonment for ten years and to 306 of the IPC pay a fine of Rs.5,000/-, in default to undergo simple imprisonment for three months. The sentences were directed to run concurrently.

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Hence, the appeal.

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Heard, Mr.A.Nagarajan, learned counsel appearing for the appellant and Mr.C.E.Pratap, learned Government Advocate (Crl.Side), appearing for the respondent/State.

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(a) The learned counsel for the appellant submitted that the evidence of the witnesses P.W.2 to P.W.5 would suggest that the allegation with regard to dowry demand and cruelty in connection with the said demand is an afterthought and invented for the purpose of prosecuting the appellant for the alleged offences; that P.W.2 had admitted in the cross examination that he had not stated several vital facts to the investigating officers during investigation; that the evidence of P.W.3, the cousin sister of the deceased would indicate that there was a matrimonial discord and it was

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not on account of a dowry demand; that the evidence of P.W.4 and P.W.5 is

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cannot be accepted as both the witnesses are unreliable and pointed out to the cross-examination of these two witnesses.

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(b).The learned counsel further submitted that though the alternate charges under Sections 304B and 306 of the IPC can be framed as both the offences are not mutually exclusive but while sentencing the appellant, the Court below ought not to have imposed punishment for both the offences and prayed for setting aside the Judgement of conviction.

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The learned Government Advocate (Crl. Side), per contra, would submit that the evidence of witnesses, namely P.W.2 to P.W.5, is cogent and convincing, though there are minor contradictions; that therefore, their evidence cannot be discarded; that the trial Court had considered the evidence in the proper perspective; and that there is no reason to interfere with the Judgment of conviction of the trial Court and prayed for dismissal of the appeal.

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This Court carefully considered the submissions made on either side and perused the records.

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As stated earlier, the prosecution had examined thirteen witnesses

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and marked eleven documents. P.W.1 is the landlord of the house in which the appellant and the deceased resided between January 2013 and October 2013. P.W.2 is the father of the deceased. P.W.3 is the cousin sister of the deceased. P.W.4 is related to both the appellant and the deceased and would corroborate the evidence of P.W.2 and P.W.3. P.W.5 is another cousin of the deceased, who also would corroborate the evidence of P.W.2 and P.W.3. P.W.6 and P.W.7 were working as watchmen in the apartment in which the appellant resided. Both the witnesses have spoken about the fact that the door of the apartment was broken open to gain entry into the apartment on the fateful day. P.W.8 is the doctor who conducted the post-mortem. P.W.9 is the corpse constable. P.W.10 is the Sub Inspector of Police, who registered the FIR. P.W.11 is the Personal Assistant to the District Collector, Chennai, cum Sub Divisional Magistrate (RDO) who had conducted the inquest and had given the report Ex.P9/RDO Enquiry report. P.W.12 and P.W.13 are the investigating officers.

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The above narration of facts would indicate that the prosecution

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case rests on the evidence of P.W.2, P.W.3, P.W.4 and P.W.5. Before we

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examine the deposition of these witnesses, this Court proposes to examine whether a finding of conviction can be recorded for both the offences under Sections 304-B and 306 of the IPC. It is well settled that both offences are not mutually exclusive that is to say that any act of the accused that would attract Section 304-B of the IPC may also attract Section 306 of the IPC, if the death is due to a suicide since Section 306 of the IPC is much broader and takes within its fold the offence under Section 304-B of the IPC. However, if the Court comes to the conclusion that an offence under Section 304-B of the IPC is made out, a conviction under Section 306 of the IPC is unnecessary and cannot be sustained.

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The position of law on this aspect has been reiterated by the Hon'ble Supreme Court in Bhupendra vs. State of Madhya Pradesh reported in ( 2014) 2 SCC 106 and the relevant paragraphs read as follows:

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“ 27. The second contention is also without any substance. In Satvir Singh v. State of Punjab this Court drew a distinction between Section 306 IPC and Section 304-B IPC in the following words: (SCC pp. 641-42, para 16)

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“16.... Section 306 IPC when read with Section 113-A of the Evidence Act has only enabled the court to punish a

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husband or his relative who subjected a woman to cruelty (as envisaged in Section 498-A IPC) if such woman committed suicide within 7 years of her marriage. It is immaterial for Section 306 IPC whether the cruelty or harassment was caused 'soon before her death' or earlier. If it was caused 'soon before her death' the special provision in Section 304-B IPC would be invocable, otherwise resort can be made to Section 306 IPC."

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28. It was held that Section 306 IPC is wide enough to take care of an offence under Section 304-B also. However, an offence under Section 304-B IPC has been made a far more serious offence with imposition of a minimum period of seven years' imprisonment with the sentence going up to imprisonment for life. Considering the gravity of the offence it is treated separately from an offence punishable under Section 306 IPC. On this basis, this Court in Satvir Singh (SCC p. 642, para 18) rejected the contention that if a dowry related death is a case of suicide it would not fall within the purview of Section 304-B IPC at all. Reliance in this regard was placed on Shanti v. State of Haryana and Kans Raj v. State of Punjab wherein this Court held that a suicide is one of the modes of death falling within the ambit of Section 304-B IPC.

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30. We are, therefore, of the opinion that Section 306 of the IPC is much broader in its application and takes within its fold one aspect of Section 304-B of the IPC. These two sections are not mutually exclusive. If a conviction for causing a suicide is based on Section 304-B of the IPC, it will necessarily attract Section 306 of the IPC. However, the converse is not true. ”

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Be that as it may. In order to hold a person guilty of the offence under Section 304-B of the IPC, the prosecution has to establish that the deceased was subjected to cruelty on account of dowry demand “soon before her death.” The Hon'ble Supreme Court in Devender Singh and others vs State of Uttarkhand reported in (2022) 13 SCC 82 had held as follows:

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“10. A perusal of the above provision would indicate that the main ingredients of the offence required to be established are:

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10.1. That soon before the death, the deceased was subjected to cruelty and harassment in connection with the demand of dowry.

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10.2. The death of the deceased was caused by any burn or bodily injury or some other circumstance which was not normal.

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10.3. Such a death has occurred within 7 years from the date of her marriage.

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10.4. That the victim was subjected to cruelty or harassment by her husband or any relative of her husband.

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10.5. Such a cruelty or harassment should be for, or in connection with the demand of dowry.

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10.6. It should be established that such cruelty and harassment were made soon before her death.

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We may now examine whether the prosecution had established

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the ingredients of the offence under Section 304-B of the IPC. The prosecution, as stated above, has to establish that soon before her death, the deceased was subjected to cruelty and harassment in connection with dowry demand and the death took place, within seven years of the date of marriage. It is not in dispute that the death took place within seven years from the date of marriage. Therefore, the only question that has to be determined is whether the deceased was subjected to cruelty and harassment in connection with dowry demand.

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On a perusal of the deposition of PW2 to PW5, it is seen that the prosecution had established the fact that 100 sovereigns of gold jewels and a land was gifted to the deceased by the father of the deceased at the time of marriage. The dowry demand, according to the prosecution is that the appellant insisted that the jewels in the possession of the deceased must be handed over to the appellant and that the land gifted to the deceased must be settled in favour of the appellant and that the appellant further demanded a

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sum of Rs.2 Lakhs for purchasing a car. In order to establish this demand,

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the prosecution had examined, as PW2 to PW5.

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(i) PW2, the father of the deceased is the main witness examined

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to establish this offence. PW2 in his cross examination has stated as follows:

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“....jpUkzj;jpd; nghJ 100 rtud; eif. 5 fpnyh bts;sp kw;Wk; 5 Vf;fu; epyk; ehd; bfhLg;gjhf xg;g[f;bfhz;nldh vd;why; xg;g[f;bfhz;nld; mij ehd; bfhLj;njd;/ nghyprhu; tprhhpj;jnghJ mt;thW bfhLj;jjhf brhd;nddh vd;why; brhd;ndd;/

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5 Vf;fu; epyk; vd; kfs; bgahpnyna ,Uf;fl;Lk; vd;W ehd; brhd;d gpwF vjphp mij xg;g[f;bfhz;L brd;id te;jhu; vd;why; Mkhk;/

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vd; kfis vjphp bfhLikgLj;jpdhu; vd;W nghyprhu; tprhhpj;jnghJ ehd; brhy;ytpy;iy vd;why; rhpjhd;/

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vjphp fhu; th';f gzk; nfl;lhuh vd;why; nfl;lhu;/ nghyprhu; tprhhpj;jnghJ fhu; th';f vjphp gzk; nfl;lhu; vd;W ehd; brhy;ytpy;iy vd;why; rhpay;y brhy;ypa[s;nsd;/

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brd;idapy; vd; cwtpdu;fs; cs;shu;fsh vd;why; ,y;iy/ 5 Vf;fu; epyk; ahu; bgahpy ; cs;sJ vd;why; vd; kfs; bgahpy;/

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nghyPrhu; tprhhpj;jnghJ vjphp nfl;l tujl;riz bfhLf;ftpy;iy vd;W vd; kfis vjphp bfhLik bra;jjhf brhd;nddh vd;why; ,y;iy//////”

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(ii) The above evidence would suggest that the allegation with regard

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to cruelty on account of dowry demand made by PW2 is an afterthought and he had not stated so before the police. Further, it is not the prosecution case that the appellant demanded money for buying the car.

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(iii) The prosecution case is that the appellant had taken the deceased to her aunt's place and refused to take her and thereafter, demanded money. However, PW2, the father of the deceased has not spoken about this fact. PW4, who is said to have participated in the mediation also has not spoken about this fact. PW5, the cousin brother, who was examined by the prosecution to corroborate the evidence of PW2 and PW4 also has not spoken about this fact. It is also seen that the maternal aunt of the deceased to whose house the appellant had allegedly taken the deceased and thereafter refused to take her back, has not been examined. Neither the deceased nor PW3, the daughter of the maternal aunt of the deceased, had complained of dowry demand earlier. It is the case of the prosecution that the deceased was in constant touch with her relatives, especially, PW3 and PW5, her cousin brother. Further, strangely, the brother of the deceased,

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who was examined by the Revenue Divisional Officer, was also not

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examined by the prosecution.

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(iv) It is the further case of the prosecution that when the appellant demanded the transfer of 5 acres of land in his name and also the possession of jewels, a compromise was arrived at the house of the maternal aunt and they agreed to pay Rs.2 Lakhs to the appellant. However, PW3's version on this aspect is different and she had not stated anything about the payment of Rs.2 Lakhs to the appellant.

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(v) That apart, PW3 apart from vaguely referring to dowry demand had only stated that the conjugal relationship between the appellant and the deceased was not normal; that even on the first night after marriage, the appellant did not indulge in any sexual relationship; and that the appellant had suspected the character of the deceased and therefore, the deceased was depressed. The relevant portion of the evidence of PW3 reads as follows:

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“vd; j';if ,wg;gjw;F Kd;g[ mtUf;F a{hpdhp ,d;gf;c&;d; ,Ue;jJ/ mjw;F Tl vjphp vd; j';if ntW ahnuhL jtwhf ele;jjhy; jhd; a{hpdhp ,d;gf;c&;d; te;jJ vd;W mtis re;njfg;gl;L bfhLik bra;jhu;/ vd; j';if ,J nghy brhy;Yk;nghJ vy;yhk; ehd; Mwjy; brhy;yp

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te;njd;/ eh';fs; te;J ngRfpnwhk; vd;W brhd;dhy; Tl vd; j';if mtu; nfhgkhf ,Uf;fpwhu; tuntz;lhk; vd;W brhy;Ythu;/ Kjyputpy; Tl vd; j';iff;F mtu; ve;j re;njhc&;j;ija[k; bfhLf;fhky; Fl;iel; vd;W brhy;yptpl;L jdpahf gLj;J bfhz;lhu; mjid vd; j';if vd;dplk; Twp mGjhs;/”

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(vi) PW4, related to both appellant and the deceased, who participated in the mediation talks between them also confirms that what was handed over to the deceased at the time of marriage were gifts. However, he would add vaguely that the appellant demanded further dowry without specifying the nature and the time when such demand was made.

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(vii) From the reading of the evidence of PW2 to PW5, it is seen that the prosecution had not established that the appellant had made any demand of dowry in addition to what was gifted at the time of marriage. The allegation that he had insisted that 100 sovereigns should be handed over to him and the land should be transferred in his name has also not been established beyond doubt in view of the admissions made by PW2.

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(viii) Further, the witnesses have made several improvements and

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made statements in their deposition, which have not been stated before the investigating officer. The document executed in favour of the deceased with regard to the 5 acres of land also has not been marked to substantiate the case of the prosecution. The mobile records of the witnesses or the messages exchanged between the deceased and the witnesses have not been produced by the prosecution. The relevant portion of PW12's evidence reads as follows:

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“ehd; tprhupj;j rhl;rpfsplk; mtu;fSila ifg;ngrp miHg;g[ tptu';fis bgw;nwdh vd;why; ,y;iy/ ve;j rhl;rpa[k; jhdhf mtu;fSila ifg;ngrpia vd;dplk; xg;gilf;ftpy;iy vd;why; rhpjhd;/ ,we;Jnghdtu; vd;d goj;Js;shu; vd;W tprhhpj;J bjhpe;J bfhz;nldh vd;why; bjhpe;J bfhz;nld;/ ,we;Jg;nghd egu; jhd; bfhLik bra;ag;gLtjhf vGj;J K:yk; my;yJ thl;!;Mg;gpy; rhl;rpfSf;F jfty; bjhptpj;jjhf vd;dplk; Mjhu';fs; fhl;odhu;fsh vd;why; ,y;iy/ bjhiyngrp K:yk; brhd;djhf vd; tprhuizapy; bjhpate;jJ/

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mrh/2. 5 Vf;fu; epyk; kuzk; mile;jtu; bgahpy; vGjpitj;jJ bjhlu;ghd Mtz';fis ehd; nfl;L t';fpnddh vd;why; ,y;iy/”

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That apart that allegation with regard to dowry demand also appears to be

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improbable especially in the light of evidence of PW3, who would state that there was a matrimonial discord between the appellant and the deceased for

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reasons other than dowry demand that is, as stated above.

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(ix) The Revenue Divisional Officer who had conducted inquest was also not able to definitely conclude that there was a dowry demand. He had only stated that there is a likelihood of dowry demand and that it is for the police to unearth the truth, as could be seen from him report [Ex.P9], marked through his Assistant-PW11.

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(x) In the light of the above evidence of PW2 admitting that he had not stated anything about the cruelty on account of dowry demand to the police; the evidence of PW3 stating that there was a matrimonial discord for reasons other than dowry demand; and the fact that the brother of the deceased was not examined, who would be an important person to speak about any alleged dowry demand, this Court is of the view that it would be highly unsafe to conclude that there was a dowry demand soon before death. In the circumstances, this Court is of the view that since cruelty on account

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of the dowry demand has not been established, the appellant cannot be

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convicted for the offence under Section 304-B of the IPC. It is also pertinent to point out here that the respondent also did not file the final report for the offence under Section 304-B of the IPC.

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As regards the offence under Section 306 of the IPC, it has to be seen whether the deceased was subjected to cruelty of such a nature which had forced the victim to commit suicide. The Hon'ble Supreme Court while interpreting the provisions of Section 306 IPC had held that in order to constitute the offence under Section 306 IPC, there must be evidence to show that the accused had played an active role or committed any positive or direct act to instigate or aid the deceased in committing suicide. Since this Court had already held that there was no cruelty in connection with dowry demand, this Court has to see whether there was any other cruelty .

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In order to attract the offence under Section 498-A, the cruelty must be either in connection with dowry demand, which is ruled out in this case, or must be cruelty of such a nature which would drive the woman to commit suicide. Except for the evidence of PW3 to show that the appellant

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suspected the character of the deceased and had not fulfilled his conjugal obligations, there is nothing to show that the deceased was subjected to cruelty of such a kind that is referred to in Section 498-A of the IPC. Further, the cruelty as spoken to by PW3 is contrary to the prosecution case. The prosecution case is that there was only a dowry demand and cruelty in connection with the same, which is not proved. Be that as it may. The evidence of PW3 which is extracted above does not in any manner suggest that the cruelty was of such a nature which would drive the woman to commit suicide.

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Therefore, for all the above reasons, this Court is of the view that the appellant has rebutted the statutory presumption under Sections 113-A and 113-B of the Indian Evidence Act, and accordingly, the judgment of conviction for the offences under Sections 306 and 304-B of the IPC cannot be sustained. That apart, the trial Court also committed a legal error in convicting the appellant for both the offences under Section 304-B of the IPC and under Section 306 of the IPC as stated earlier. In this case, however, neither of the offences is proved. Further, the offence under Section 498-A is also not made out. Consequently, the appellant is entitled

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to be acquitted of all the charges.

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In the result, this Criminal Appeal is allowed, and the appellant is acquitted of the charges. The conviction and sentence passed in S.C.No.54 of 2016, dated 08.09.2022 on the file of learned Sessions Judge, Mahalir Neethimandram, Allikulam, Chennai, are set aside. The fine amount, if any, paid by the appellant shall be refunded. Bail bond, if any, executed shall stand discharged.

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08.01.2025

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Speaking /Non-speaking order Neutral citation : yes/no dk/ars

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To

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