1. This is yet another unfortunate case of dowry death, which we have to deal in appeal.
2. The respondents are the husband, father-in-law, mother-in-law and brother-in-law of deceased Gayithri.
3. The (SIC) appeal in Crl.A. No. 643/2005 is by the State aggrieved by the acquittal of respondents for the offence punishable under Sections 498A and 304B of the IPC, whereas the (SIC) appeal in Crl.A.No. 1771/2004 is by the respondents assailing the order of conviction by the trial court for the offence punishable under Sections 3 and 6 of the Dowry Prohibition Act.
4. The prosecution case in brief is to the effect that deceased - Gayithri was given in marriage to respondent No. 1 and the marriage took place on 26.6.1995. PW.1 is the father of deceased - Gayithri. It is the prosecution case that at the time of marriage, the accused persons demanded Rs. 20,000/- towards dowry, out of which PW.1 paid Rs. 12,000/- towards dowry and in addition Rs. 2,000/- towards clothes and Rs. 1,000/- for watch were also given and 15 days after giving the above said amount, marriage was performed. Subsequent to the deceased entering her matrimonial home, ill-treatment and harassment (SIC) began for the reason that the accused demanded from the deceased - Gayithri Rs. 5,000/- to be brought from her parental house as additional dowry and they also demanded from her two bags of paddy to be brought alongwith additional dowry of Rs. 5,000/-. The deceased informed this to her father and she also informed her father that she was harassed in her husband's house and was ill-treated and the accused went to the extent of telling the deceased that if additional dowry amount as demanded by them was not brought, the respondents would not hesitate to perform another marriage of respondent No. 1 with a girl The complainant took his daughter to the house of the accused when she came for Ugadi festival. Thereafter the accused demanded PW.1 the above said additional dowry and inspite of PW.1 expressing his inability to pay the additional amount of Rs. 5,000/-, the accused persons continued to harass the deceased, because the additional amount was not paid. Finally unable to bear the harassment given to her in connection with the demand of additional dowry, deceased - Gayathri committed suicide by hanging herself in the house of the accused on 7.4.1996, that is, hardly within a year of her marriage.
5. PW.1 being the father lodged a complaint with the police as per Ex.P1 and an investigation was taken up by PW.12, who registered the case on the basis of the said complaint - Ex.P1 in Crime No. 64/1996 and submitted FIR to the court. Ex.P2 - spot mahazar was conducted and inquest was held by the Tahsildar over the dead body and subsequently PW.14 - CPI took over the investigation. PW. 14 - R Shantha obtained the sketch in relation to scene of occurrence and recorded the statement of material witnesses and other documents as (sic) Ex.Ps.7 to 10. The postmortem examination on the dead body was conducted by PW.11 - Dr. Jagadish as per Ex.P5 - postmortem report. After collecting the school certificate of the deceased, that is, transfer certificate - Ex.P11 and on completion of the investigation, PW.14 submitted chargesheet against the accused persons.
6. At the trial, the prosecution, in order to establish the offence alleged against the accused persons, led the evidence of PWs.1 to 14. Exs.P1 to P11 were marked during the trial. After completion of the evidence of prosecution witnesses, the accused statements were recorded and they denied every incriminating circumstances appearing in the evidence against them. On their behalf, they got examined as DWs.1 and 2.
7. The learned trial judge, after hearing the submissions made at the Bar by the respective sides and on appreciation of the entire evidence on record, came to the conclusion that the prosecution had established the charges levelled against the accused persons in so far as the offence punishable under Sections 3 and 6 of the Dowry Prohibition Act and accordingly convicted respondents No. 1 to 3 and sentenced them to undergo simple imprisonment for a period of 5 years and in addition to pay a fine of Rs. 15,000/- and in default of payment of fine to undergo further simple imprisonment for a period of 6 months. For the offences punishable under Section 6(2) of the Dowry Prohibition Act, respondents No. 1 to 3 were convicted and sentenced them to undergo simple imprisonment for a period of 6 months and to pay fine of Rs. 5,000/- and in default of payment of fine to undergo further simple imprisonment for a period of one month and directed that the sentence shall run concurrently. The trial court has also directed the respondents under Section 6(3A) of the Dowry Prohibition Act to return the amount of Rs. 12,000/-received as dowry to PW.1 - father of the deceased. However, the respondents were acquitted for the offences punishable under Sections 498A and 304B of IPC as the trial court found that the evidence placed by the prosecution was insufficient to prove the said offences and more particularly, the evidence was lacking with regard to harassment 'soon' before death of the deceased.
8. Aggrieved by the conviction of accused Nos. 1 to 3 for the offence punishable under Sections 3 and 6 of the Dowry Prohibition Act, the respondents have preferred Crl.A.No. 1771/2004, whereas aggrieved by the acquittal of respondents No. 1 to 4 for the offence punishable under Sections 498A and 304B of IPC, the State has preferred Crl.A.No. 643/2005.
9. We have heard the submissions made by learned Counsel, Sri Bhaskaraiah for the appellants in Crl.A.No. 1771/2004 as well as the argument addressed by learned Additional State Public Prosecutor, Sri B.V. Pinto, in respect of Crl.A.No. 643/2005 and with their assistance, we have carefully gone through the entire evidence on record including the judgment of the trial court.
10. Learned Counsel, Sri Bhaskaraiah, for the appellants in Crl.A.No. 1771/2004 submitted that the trial court committed serious error in convicting the appellants for the offences under Sections 3 and 6 of the Dowry Prohibition Act and there was no evidence to show that the accused demanded dowry or for that matter, the dowry was actually paid by the father of the deceased. It was contended that the evidence placed by the prosecution to prove the offence under the Dowry Prohibition Act was inconsistent and unreliable, because the materials witnesses - PWs.1 to 5 are closely related to one another and no independent witness was examined in proof of demand of dowry although it is spoken to by PW.1 that other than the relatives, independent persons were also present at the time of marriage negotiations. Therefore, it is not safe to rely on the testimony of interested and related witnesses in the absence of there being independent evidence to corroborate their testimony. In the alternative, it was submitted that the said payment was paid at the time of marriage and the said payment could be considered as one, which was paid with regard to expenses that was borrowed by the family members and the payment was voluntarily made by the father of the deceased. As such, there was no demand of dowry on the part of the accused persons. Basing his argument on the above points, learned Counsel, Sri Bhaskaraiah, for the appellants submitted that no offence under the Dowry Prohibition Act has been made out by the prosecution and therefore the trial court was in error in convicting the accused persons for the said offence under the Dowry Prohibition Act. Since the trial court has acquitted the accused persons of the major offences, that is, Sections 304B and 498A of IPC, the question of convicting the accused persons for minor offence under the Dowry Prohibition Act will not arise. In support of the above submissions made to the above effect, the learned Counsel placed reliance on the decisions reported in 2000 Crl.LJ 2165 (State of Karnataka v. T. Balu) and 1999 SCC (Cri.) 1039 (Sakhi Mandalam v. State of Bihar and Ors.).
11. On the otherhand, learned State Counsel, Sri B.V. Pinto, appearing in Crl.A. No. 643/2005, submitted that once the trial court has come to the conclusion that the offences under the Dowry Prohibition Act have been established, necessary consequence of the said finding has to follow. In other words, the fact of deceased having died within 7 years of marriage has been established beyond reasonable doubt and there is no dispute with regard to this particular fact. The cruel treatment given to the deceased has also been proved through the oral testimony of PWs.1 to 5 apart from the inquest report itself, which has been produced as per Ex.P3. Therefore, Section 113B of the Evidence Act comes into application and presumption that the deceased died due to dowry harassment will have to be drawn as against respondents No. 1 to 3. Referring to Section 304B of IPC, it was submitted that the necessary ingredients of the said Section have also been proved beyond all reasonable doubt since the death of deceased - Gayithri was otherwise normal circumstances and that she committed suicide as per the medical evidence and further fact that she died within 7 years of marriage due to physical and mental cruelty before her death in connection with demand of dowry also stands established and the injuries found on the deceased as evidenced from the inquest report as per Ex.P3 also goes to indicate that prior to her death, the deceased was subjected to physical and mental cruelty by the accused persons. As such, offence under Section 304B of IPC also stands proved and so also offence under Section 498A of IPC. With regard to the stand taken by the defence that the deceased was suffering from mental illness as spoken to by PWs.1 and 2, it was submitted by the learned State counsel that except the oral testimony of PWs.1 and 2, there is no evidence to show that the deceased was suffering from mental illness and all the suggestions put to PWs.1 to 5 have (SIC) been denied by the said witnesses and further there is no evidence on record to indicate that the deceased had mental illness and it was that she committed suicide. Therefore, the learned State counsel submitted that the trial court committed serious error in disbelieving the evidence of PWs.1 to 5. The trial court has also ignored the evidence placed in the form of inquest report -Ex.P3 and the evidence of the prosecution witnesses in regard to cruel treatment given by the accused and as such the trial court by wrongly appreciating the evidence on record and by ignoring the positive evidence placed by the prosecution has come to the conclusion that the prosecution had failed to establish that the deceased was subjected to cruelty before her death by the accused persons and for all these reasons, it was submitted that the (SIC) offences under Sections 498A and 304B of IPC as against respondents No. 1 to 3 has to be set aside and the accused has to be convicted for the said offence by allowing the State appeal.
12. Having thus taken note of the submissions made by the respective sides, the point for consideration is whether the trial court was right in acquitting the respondents for the offence under Sections 498A and 304B of IPC and convicting the respondents No. 1 to 3 for the offence under Sections 3 and 6 of the Dowry Prohibition Act. The fate of the two appeals depends on the answer to the said question.
13. Out of 14 witnesses examined by the prosecution, the material witnesses are: PW.1 is father of the deceased. PW.2 is the brother of PW.1. PWs.3 to 5 are close relatives of the deceased and PW.5 is brother of the deceased. Their evidence is very material and the medical evidence of PW.11- Dr. Jagadeesh relates to conducting postmortem examination and PW.12 speaks to the complaint registered by him, Ex.P2 - spot mahazar, Ex.P3 - inquest mahazar and Ex.P6 - sketch. PW.10 is the neighbour and has turned hostile. PW.13 is the engineer, who has drawn the sketch as per Ex.P6. PW.14 is the I.O., who completed the investigation.
14. We take up the contentions raised by the learned Counsel for the appellants in Crl.A.No. 1771/2004 and examine whether the trial court was right in convicting the accused persons No. 1 to 3 for the offence under Sections 3 and 6 of the Dowry Prohibition Act.
15. PW.1 is father of the deceased and he has deposed before the court that the accused persons demanded dowry of Rs. 20,000/- at the time of marriage and he paid only a sum of Rs. 12,000/- towards dowry. Three or four days after negotiation, PW.1 gave Rs. 12,000/- towards dowry, Rs. 2,000 towards clothes, Rs. 1,000/- for watch and 15 days later, the marriage was celebrated. He has deposed that at the time when he paid the amount, accused Nos. 1, 3 and 4 were present and the amount was given to accused No. 2. This evidence of PW.1 has not been seriously questioned in the cross-examination by the defence. In fact, there was not even a suggestion in the entire cross-examination that the accused persons did not demand Rs. 20,000/- towards dowry or for that matter, PW.1 did not give Rs. 12,000/- towards dowry. This evidence of PW.1 is also corroborated by the evidence of PW.2, who speaks to the similar effect and there is no cross-examination of this witness in regard to the demand of dowry or payment of dowry of Rs. 12,000/- at the time of marriage. PWs.3 and 4 also support the testimony of PWs.1 and 2 with regard to Rs. 20,000/- being demanded by the accused persons as dowry and Rs. 12,000/- being paid by PW.1 towards dowry. PWs.3 and 4 have not been seriously questioned in the cross-examination and in fact there is not even a suggestion put to them that no said amount was either demanded or Rs. 12,000/- was not paid by PW.1 to the accused persons. PW.5 is the last witness and his evidence is also to the similar effect without any damage being done. Thus we see that the material witnesses have clearly spoken with regard to the accused persons particularly accused Nos. 1 to 3 demanding Rs. 20,000/-, but receiving Rs. 12,000/- from PW.1 at the time of marriage.
16. We find that the testimony of PWs.1 to 5 in regard to demand of dowry and payment of dowry is consistent and reliable. The trial court has also discussed the evidence by the prosecution in this regard and it has observed in the course of its judgment at para-28 as under:
28. Now, so far as the demand made by A.1 to 3 for the dowry is concerned, on meticulous examination of the evidence of PWs.1 to 5, it stands proved. All the witnesses have consistently stated that 20 or 25 days before the marriage, negotiations were held in which, A.1 to A3 put forth their demand for dowry of Rs. 20,000/-, which was ultimately, settled at Rs. 12,000/-. There is also evidence that the complainant agreed to incur the marriage expenses and pay Rs. 2000 for clothings and 1000 for wrist watch. Incurring of the marriage expenses by the bride's father and giving of clothing and watch can be excluded as it is all customary. So far as giving of Rs. 12,000/-towards dowry, is concerned, the evidence of these witnesses have remained unshaken. Cross-examination of this witnesses on these aspects, has not resulted in their testimonies being discredited. The learned defence counsel has just given suggestions to the witnesses. Even when the accused were examined under Section 313 Cr.PC, they did not deny receipt of dowry amount. If at all, they had not received the dowry amount, this factor could have also been explained by the accused. The learned defence counsel referred to a decision of our own Hon'ble High Court reported in 2002 Crl.LJ page 1683, wherein, it is held that for sustained conviction under Section 3 and 4 of Dowry Prohibition Act, facts are to be established beyond reasonable doubt. But referring to this judgment, the learned defence counsel argued that because the fact of giving of dowry is not proved, the accused cannot be held guilty. But, in the very same judgment, the Hon'ble High Court has held as below:. the Court has to assess the entire process its continuity and in its entirety and one cannot delink the premarital negotiations from what subsequently transpires. The accused in this case receiving the dowry, cannot be isolated or dissected from the demand that was made earlier because in our considered view without such a demand there would not have been any payment. Under the circumstances, in the absence of the accused putting forward the plea and establishing to the satisfaction of the Court that the amount received by him was for purposes other than the dowry, that the present evidence establishes that the amount of Rs. 2000/- received bhim was pursuant to the negotiations, the offence would stand established in so far as the court would have to uphold the finding that it was pursuant to the demand made by the family that the dowry was paid....
In this case also, the prosecution has been able to prove that A.1 to A.3 put forth their demand for dowry at the time of marriage negotiations; and pursuant to which, P.W.1 paid Rs. 12,000/-to them. The defence has not come out with any other version that payment of Rs. 12,000/- was not towards dowry, but it was towards customary gifts. In these circumstances, I am of the opinion that the prosecution has been able to prove the offence punishable under Section 3 of the Dowry Prohibition Act. So far as A.4 in this regard is concerned, there is no evidence that A.4 was also an active participant in receiving the dowry amount Nowhere, the prosecution witnesses have aspersed the allegations with regard to any attempt made by A.4 for dowry. Just because, he was present, being the brother of A.1, at the time of negotiations, it cannot be held that A.4 was also responsible for receiving dowry. Moreover the charge under Section 3 is not framed against A.4. Therefore, only A.1 to A.3 are held guilty of the offence under Section 3 of Dowry Prohibition Act.
17. Therefore we do not find any error on the part of the trial court in arriving at the conclusion that the accused persons viz., accused Nos. 1 to 3 did demand of dowry and PW.1 did make payment of Rs. 12,000/- as dowry in connection with the marriage of his daughter - Gayithri with accused No. 1. Hence, we do not find any illegality being committed by the trial court.
18. Now, we have to consider the argument of the learned Counsel for the appellants in Crl.A.No. 1771/2004 that PWs.1 to 5 are all close relatives and as such no independent witness was examined and hence it is not safe to rely on the testimony. It is settled law that there is no impediment to accept the testimony of witnesses, who are close relatives. However, their evidence is found to be reliable and trustworthy. Merely because the independent witnesses are not examined that itself will not give room to discard the consistent and trustworthy testimony of PWs.1 to 5. There is no suggestion put to any of these witnesses that the accused persons are being falsely implicated and no such foundation is laid by the defence to show that the prosecution witnesses are interested in falsely implicating the accused persons. Moreover this is a case of demand of dowry at the time of marriage and though the independent witnesses will be present at the time of negotiation, merely because no independent witness was examined that itself will not be a ground to reject or doubt the verasity of testimony of PWs.1 to 5. In this connection, the law laid down by the Apex Court with regard to appreciation of evidence of interested witnesses can be pressed into service. It has been observed by the Apex Court in the case of State of Punjab v. Karnail Singh reported in 2004 SCC (Cri) 135 as under:
8. We may also observe that the ground that the witnesses being close relatives and consequently, being partisan witnesses, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh v. State of Punjab in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J., it was observed: (AIR p. 366, para 25)
25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in - Rameshwar v. State of Rajasthan (AIR at p. 59). We find, however, that if unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel.9. Again in Masalti v. State of U.P. this Court observed: (AIR pp. 209-10, para 14)But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses.... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.
19. Therefore, in view of the above position in law as has been observed by the Apex Court with regard to appreciation of evidence of interested witnesses, in the case on hand we find that the testimony is convincing, trustworthy and reliable and inspires confidence in the court to accept the same and there is a ring of truth in what the witnesses have deposed in the course of their evidence. As such, we do not find any infirmity in the prosecution case, merely because PWs.1 to 5 are interested witnesses. Hence, the submission made in this regard by the learned Counsel for the appellants in Crl.A.No. 1771/2004 deserves to be noted only to be rejected.
20. In Crl.A.No. 643/2005 filed by the State, while submitting the arguments, the learned Addl. S.P.P. Shri B.V. Pinto submitted that there is convincing evidence placed by the prosecution to prove the commission of the offences under Sections 304-B and 498-A of the I.P.C. and the trial court has, therefore, committed serious error in ignoring the evidence placed in this regard. Before we look to the evidence of the prosecution, it is necessary to keep in view the law laid down by the Apex Court in a very recent decision in the case of Thakkan Jha v. State of Bihar 2006(1) SCC (Cri) 309. In the said case, dealing with the term 'soon before' appealing in Section 304-B of the I.P.C. and also taking into account the presumption under Section 113-B of the Evidence Act, the Apex Court has observed thus :
6. In Kans Raj v. State of Punjab 2000 SCC (Cri) 935 a three-Judge Bench of this Court dealt with the presumption available in terms of Section 113-B of the Evidence Act, 1872 (in short 'the Evidence Act') and its effect on finding persons guilty in terms of Section 304-B IPC. It was noted as follows : (SCC p. 217, para 9)
9. The law as it exists now provides that where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within 7 years of marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative for or in connection with any demand of dowry such death shall be punishable under Section 304-B. In order to seek a conviction against a person for the offence of dowry death, the prosecution is obliged to prove that:
(a) the death of a woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances;
(b) such death should have occurred within 7 years of her marriage;
(c) the deceased was subjected to cruelty or harassment by her husband or by any relative of her husband;
(d) such cruelty or harassment should be for or in connection with the demand of dowry; and
(e) to such cruelty or harassment the deceased should have been subjected soon before her death.
7. No presumption under Section 113-B of the Evidence Act would be drawn against the accused if it is shown that alter the alleged demand, cruelty or harassment the dispute stood resolved and there was no evidence of cruelty or harassment thereafter. Mere lapse of some time by itself would not provide to an accused a defence, if the course of conduct relating to cruelly or harassment in connection with the dowry demand is shown to have existed earlier in time not too late and not too stale before the date of death of the victim. This is so because the expression used in the relevant provision is 'soon before'. The expression is a relative term which is required to be considered under specific circumstances of each case and no straitjacket formula can be laid down by fixing any time-limit. The expression is pregnant with the idea of proximity test. It cannot be said that the term 'soon before' is synonymous with the term 'immediately before'. This is because of what is stated in Section 114 Illustration (a) of the Evidence Act. The determination of the period which can come within the term 'soon before' is left to be determined by the courts, depending upon the facts and circumstances of each case. Suffice, however, to indicate that the expression 'soon before' would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link [See Hira Lal v. State (Govt. of NCT), Delhi 1991 SCC (Cri) 191].
8. The factual position of the present case goes to show that the death was not in normal circumstances. The expression 'normal circumstances' apparently means natural death. In other words, the expression 'otherwise than under normal circumstances' means death not being in the usual course but apparently under suspicious circumstances if not caused by burns or bodily injury. This position was noted before this Court in Shanti v. State of Haryana 1991 SCC (Cri) 191. In view of the undisputed testimony of P.Ws.3 and 4 about the date of marriage, the trial court and the High Court were justified in concluding that the death took place within seven years of marriage. As noted above there was no cross-examination of P.Ws.3 and 4 about the date of marriage. The presumption available under Section 113-B in the background of Section 304-B IPC is clearly applicable to the present case.
21. It is clear from the above position in law as laid down by the Apex Court that the expression 'soon before' would normally imply that the interval should not be much between the cruelty and harassment concerned and the death in question and there must in existence proximate and live link. Examined in the light of the above position in law, in the case on hand, the evidence let in by the prosecution through P.Ws.1 to 5 goes to indicate that the deceased was subjected to harassment in connection with the demand of additional dowry of Rs. 5,000/- by the accused persons and P.W.1, in the course of his evidence, at pages 117 and 118 of the paper book, has stated that his daughter told him that the accused were demanding additional dowry of Rs. 5,000/- and two pallas of paddy, and she even told him that the accused threatened her in such a way that A-1 would be married to some other girl for getting more dowry and he has also stated that he found the dead body in front of the house of the accused and he noticed injuries on the dead body of his daughter. P.W.2 has deposed in the course of his evidence at pages-125 and 126 of the paper book to the effect that, when the deceased came for Ugadi festival along with A-1, P.W.1 told him about the ill-treatment given to his daughter and the demand for additional dowry made by the accused, and this witness has further stated that in his presence, A-2 and A-3 told that if additional dowry is not given, they would arrange for the second marriage of their son. This witness also says that he saw injuries on the dead body of Gayathri on her chest, knee, shoulder and ribs and had suspected that Gayathri might have died due to assault by the accused and also says that she committed suicide because of the persistent pressure for additional dowry by the accused, P.W.3 Siddabasamma, in the course of her evidence at pages 133 and 134 of the paper book, has deposed to similar effect and she also testifies that, she saw injuries on the head, neck, right side of the chese, both the ribs and also on the elbow portion of the deceased, and this witness also suspects the hand of the accused in the death of Gayathri. P.W.4, in the course of his evidence at page-140 of the paper book, has corroborated the other witnesses by stating that he was told by the deceased that she was beaten by the accused for additional dowry of Rs. 5,000/- and she told him about the ill-treatment, when she came to his house.
22. The above said evidence of these witnesses has withstood the cross-examination by the defence and there is nothing in their evidence either to disbelieve their version or to doubt the veracity of their testimony with regard to the deceased being subjected to cruelty and being harassed in connection with additional demand for dowry. This evidence of the prosecution also finds support from the inquest panchanama Ex.P-3 placed on record. The said document also confirms the fact of number of injuries being found on the dead body of Gayathri. The inquest was conducted on 8.4.1996 between 5:00 p.m. and 6.00 p.m. and the injuries that are mentioned in the inquest report in Kannada language are as under:
23. The trial court has lost sight of this important piece of evidence, which has remained unrebutted in the cross-examination. But, based on the evidence of the doctor, who spoke about the post-mortem examination, the trial court has arrived at the conclusion that, as there were no external injuries on the dead body of deceased Gayathri, the question of the deceased being subjected to cruelty soon before her death did not arise. We are unable to agree with the trial court in this aspect in view of the inquest report Ex.P-3 showing number of injuries on the dead body of the deceased coupled with the evidence of the material witnesses for the prosecution, P.Ws.1, 2 and 3, referred to above by us. The post-mortem examination was conducted on 9.4.1996 i.e., almost two days after the death of the deceased. The doctor has opined that the cause of death of the deceased was due to the deceased hanging herself as the doctor found ligature mark around the neck of the dead body. The post-mortem report Ex.P-5 confirms this fact. Merely because the doctor has not stated about any external injuries on the deceased, it does not take away the positive evidence placed by the prosecution in the form of the inquest report to indicate the injuries on the deceased. No explanation is also forthcoming from the accused with regard to the said injuries found on the deceased. If the deceased had committed suicide by hanging herself, the possibility of so many injuries found on the deceased on various parts of her body has to be ruled out. It is not the case of the defence that the deceased herself sustained those injuries or that, before she took decision to hang herself, she had those injuries on her body. These circumstances taken together also go to indicate that the deceased was subjected to physical cruelty, which led her to commit suicide by hanging herself in the house of the accused. No other inference can be possible from the above evidence on record. The argument of the learned Counsel for the accused that, in the process of getting herself hanged, the deceased might have sustained those injuries also does not deserve any consideration. Even the submission that the said injuries could have been caused after the dead body was removed also does not carry enough force behind it, in the absence of any positive evidence being placed on record to support this contention.
24. Apart from the above, in view of the Apex Court explaining the expression 'soon before' in the above mentioned case, as discussed above, in the instant case, the evidence of the prosecution witnesses clearly goes to establish the fact of the deceased being subjected to cruelty and being harassed in connection with the additional demand for dowry; and the very fact that she died hardly within a year of her marriage, speaks volumes. As such, we are of the opinion that the trial court committed an error in not appreciating the evidence of the material witnesses in proper perspective as well as the inquest report Ex.P-3, but has wrongly placed reliance on the medical evidence of the doctor to come to the conclusion that there was evidence to show that soon before her death, the deceased was subjected to cruel treatment by the accused in connection with their demand for dowry. Merely because the medical evidence indicated that there were no external injuries, that itself will not take the case out of the purview of Section 304-B of the I.P.C. in the light of the law laid down by the Apex Court in the case referred to by us above.
25. Therefore, we hold that all the ingredients of Section 304-B of the I.P.O. have been met by the prosecution by placing convincing evidence and there is no room to doubt the evidence placed in this regard.
26. So far as the offence under Section 498-A of the I.P.C. is concerned, the Apex Court has considered the implications of the expression 'cruelty' in conjunction with Section 304-B of the I.P.C. as well as Section 113-B of the Evidence Act and the said observations are to be found in the decision in the case of Sushil Kumar Sharma v. Union of India 2005 AIR SCW 3569, wherein it has been observed thus:
6. Section 498A IPC and Section 113-B of the Evidence Act include in their amplitude past events of cruelty. Period of operation of Section 113-B of the Evidence Act is seven years, presumption arises when a women committed suicide within a period of seven years from the date of marriage.
7. Section 498A reads as follows:
498A: Husband or relative of husband of a woman subjecting her to cruelty - Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation - For the purpose of this section 'cruelty' means -
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her to any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
Section 113-B reads as follows:
113-B Presumption as to dowry death - When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation - For the purposes of this section 'dowry death' shall have the same meaning as in Section 304-B of the Indian Penal Code (45 of 1860).
8. Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman is required to be established in order to bring home the application of Section 498A IPC. Cruelty has been defined in the explanation for the purpose of Section 498A. It is to be noted that Sections 304-B and 498A IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the Sections and that has to be proved. The explanation to Section 498A gives the meaning of 'cruelty'. In Section 304-B there is no such explanation about the meaning of 'cruelty'. But having. regard to common background to these offences it has to be taken that the meaning of 'cruelty' or 'harassment' is the same as prescribed in the Explanation to Section 498A under which 'cruelty' by itself amounts to an offence.
27. Therefore, examined in the light of the above position in law, the evidence of the prosecution witnesses leaves no doubt in our mind as to the prosecution having established the offence punishable under Section 498-A of the I.P.C. and the very fact that the accused consistently demanded additional dowry from the deceased and even threatened her by saying that if the additional dowry is not paid, they would not hesitate to arrange for marriage of A-1 with another girl, also speaks about the mental cruelty to which the deceased was subjected and thus, the necessary ingredients of 'cruelty' as explained in Section 498-A of the I.P.C. have been proved by the prosecution beyond all reasonable doubt and, therefore, we are of the view that the trial court was in error in acquitting the accused-respondents 1 to 3 of the offence punishable under Section 498-A of the I.P.C. also.
28. With regard to the defence evidence let in through D.Ws.1 and 2 is concerned, although the defence has sought to suggest to the witnesses that the deceased died due to the mental illness, the oral evidence of D.Ws.1 and 2 is not backed up by necessary medical evidence to show that the deceased in fact was suffering from mental illness. The suggestion put to this effect to all the prosecution witnesses has been denied by all of them in toto. It is the defence version that the deceased was suffering from mental illness and she was even taken to the hospital for treatment at C.N. Halli. If that were to be the fact, nothing prevented the accused persons, to have produced necessary medical records to support their stand that the deceased was suffering from mental illness. Moreover, if that were to be the case, the accused persons would not have tolerated the deceased for almost one year and only after the deceased committed suicide, the said theory of the deceased being affected by mental illness is sought to be projected by the defence. In the absence of positive medical evidence being placed on record to prove the mental illness of the deceased, it is not possible to place any reliance on the testimony of the defence witnesses and, as such, their evidence is of no assistance to the defence to prove that the deceased was mentally ill before she committed suicide.
29. Having thus analyzed the entire evidence on record in the light of the above proposition of law laid down by the Apex Court, we are of the considered opinion that the trial court has not properly appreciated the evidence with regard to the charge levelled against the accused persons, A-1 to A-3, insofar as Sections 498-A and 304-B of the I.P.O. are concerned and the acquittal of the said accused persons in respect of the above said offences is contrary to the evidence on record and the finding recorded is accordingly perverse and thereby giving scope for this Court to interfere with the order of acquittal passed by the trial court. In other words, the judgment and order of acquittal of the accused respondents-1 to 3 insofar as the offences under Sections 498-A and 304-B of the I.P.C. are concerned, the same requires to be reversed and the State appeal, therefore, will have to be allowed.
30. Heard both sides on the question of sentence. The learned Counsel for the accused Shri Bhaskaraiah submitted that A-1 to A-3 are in custody eversince the judgment of the trial court and the trial court has imposed a sentence of five years on them for the offence under Sections 3 and 6 of the D.P.Act, apart from imposing the fine as required by the said Sections, and he also submitted that the accused persons being rustic villagers, this Court may show leniency upon them by reducing the sentence awarded by the trial court. It was further submitted that A-2 and A-3 are aged persons and A-1 has again married and has got two children and these factors may be taken into account while considering the sentence. On the other hand, the learned Addl. S.P.P. for the State submitted that there is no scope for reducing the sentence in view of the specific provision of law as contained in Section 304-B of the I.P.C. whereunder the minimum sentence is seven years of imprisonment and it may also extend to life.
31. Having regard to the submissions made to the above effect by the respective sides and taking note of the serious nature of the offences proved against the accused persons and in view of the dowry menace continuing to exist in spite of various legislations having been enforced, we are unable to subscribe to the view expressed by the learned Counsel for the accused persons. Moreover, while considering the question of sentence, this Court has to take note of not only the interest of the accused but, at the same time, the interests of the society at large. The Apex Court, in the case of State of Madhya Pradesh v. Saleem @ Chamaru reported in 2005 AIR SCW 3511, has observed that the sentence imposed should respond to society's cry for justice against the criminal and liberal attitude by imposing meager sentence will be counter-productive. Moreover, in the instant case, the trial court has sentenced the accused respondents-1 to 3 to simple imprisonment for the offence punishable under Sections 3 and 6 of the D.P.Act.
32. Considering the above facts and circumstances of the case, in the light of the aforesaid observations of the Apex Court on the question of sentence, we are of the view that in so far as the offence punishable under Section 304-B of the I.P.C. is concerned, a minimum sentence of seven years will have to be imposed upon respondents-1 to 3 and for the offence punishable under Section 498-A of the I.P.C. is concerned, in view of the sentence for the offence under Section 304-B of the I.P.C., we do not propose to award any sentence for the offence punishable under Section 498-A of the I.P.C.
33. The acquittal of A-4 by the trial court of all the offences is, however, to be sustained as there is no clinching evidence against him with regard to the role played by him in harassing the deceased.
34. In the result, we proceed to pass the following order:
a) Criminal Appeal No. 1771/2004, preferred by A-1 to A-3, is dismissed.
b) Criminal Appeal No. 643/2005, preferred by the State, is allowed.
c) The accused R-1 to R-3 in Crl.A. No. 643/2005 are convicted for the offences punishable under Sections 304-B and 498-A of the I.P.C. and each one of them is sentenced to undergo imprisonment for a period of seven years for the offence tinder Section 304-B of the I.P.C. However, insofar as their conviction under Section 498-A of the I.P.C. is concerned, we do not propose to award any separate sentence to them.
d) The conviction of accused R-1 to R-3 by the trial court for the offence under Sections 3 and 6 of the D.P.Act and the sentence thereupon are sustained.
e) The accused R-1 to R-3 are also entitled to set off under Section 428 of the Cr.P.C.
f) The (sic) sentences awarded shall run concurrently.
It is ordered accordingly.