J.B. Koshy, J.
1. One Sudhakumari, aged 26 years, wife of third accused, died in suspicious circumstances within one and a half years of her marriage. First and second accused are the father and mother of the third accused. All the three accused were charge-sheeted under Sections 498A and 304B of the Indian Penal Code read with Section 34 I.P.C. They were convicted under Sections 498A and 304B read with Section 34 of the Indian Penal Code and sentenced to undergo life imprisonment for the offence punishable under Section 304B I.P.C. and rigorous imprisonment for three years for the offence punishable under Section 498A I.P.C. Apart from the above, fine of Rs. 20,000/- each with a default sentence of six months simple imprisonment was also imposed on them. This appeal is filed by the above accused.
2. The prosecution case was that third accused married Sudhakumari, daughter of P.Ws.1 and 2 on 27th March, 1994 as per the customary rites. They were living as husband and wife in the house of the third accused at Edakkadumuri in Pooruvazhi village. Third accused was employed in military. According to the prosecution, because of the harassment and demand for dowry, Sudhakumari had to live in the house of her father. But, when her husband came for leave, at the intervention of P.W.8 her father took her to the residence of the husband on 17th July, 1995. It is stated that she committed suicide on 20th July, 1995 between 2.30 and 5.00p.m. by consuming poison. It is the allegation of the prosecution that Sudhakumari died otherwise than under normal circumstances within seven years of her marriage and soon before her death she was subjected to cruelty or harassment for or in connection with demand for dowry and thereby the accused have committed the aforesaid offences.
3. Before going to the facts and evidence in this case, for a proper understanding of the case, we may first go through the ingredients of Sections 304B and 498A I.P.C. for which the accused were charge-sheeted and convicted. Indian Penal Code was amended by introducing a new Chapter as Chap.XXA by the Criminal Law Second Amendment Act, 1983. The Chapter is given the title 'Cruelty by husband or relatives of husband'. 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 or 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.'
The explanation to Section 498A clearly provides that any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide will constitute 'cruelty', If such wilful conduct is likely to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman will also constitute 'cruelty'.
4. By the above Amendment Act of 1983, Section 113A of the Indian Evidence Act was also amended incorporating a presumption which is as follows:
'113 A. Presumption as to abetment of suicide by a married woman.- When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
Explanation.- For the purposes of this section, 'cruelty' shall have the same meaning as in Section 498A of the Indian Penal Code (45 of 1860.)'
In view of the above amendment, Court can presume that the suicide was abetted by the husband or such relatives of the husband if a wife is shown to have committed suicide within a period of seven years from the date of marriage and there is evidence that she was subjected to cruelty by her husband or his relative.
5. Section 304B was also introduced by the above Amendment Act in the Indian Penal Code which is as follows:
'304B. Dowry Death.- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called dowry death, and such husband or relative shall be deemed to have caused her death.
Explanation.- For the purposes of this sub-section, 'dowry' shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which . shall not be less than seven years but which may extend to imprisonment for life.'
'Dowry' has been defined in the Dowry Prohibition Act as follows:
'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.'
In the case of dowry death also, a presumptive provision was added by the above Amendment Act by enacting Section 113B which reads as follows:
'113B. 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 had been subjected by such persons 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 purpose of this section, 'dowry death' shall have the same meaning as in Section 304B of the Indian Penal Code (45 of 1860).'
The ingredients to be satisfied for establishing an offence under Section 304B are:
'(1) The death of a woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances;
(2) Such death should have occurred within seven years of her marriage;
(3) The deceased was subjected to cruelty or harassment by her husband or by any relative of her husband;
(4) Such cruelty or harassment should be for or in connection with the demand of dowry; and
(5) To such cruelty or harassment the deceased should have been subjected soon before her death.'
It is the duty of the Prosecution to substantiate that the above four ingredients are satisfied for constituting an offence under dowry death and these ingredients are also necessary to attract the presumption under Section 113B of the Evidence Act.
6. The Supreme Court in Kans Raj v. State of Punjab and Ors. (2000 SCC (Crl.) 935) considered the ingredients of Section 498A as well as Section 304B of the Indian Penal Code and 113 A and B of the Evidence Act and explained that as soon as the ingredients of Section 304B are proved by the Prosecution, presumption under Section 113B which is a presumption of law shall be drawn against the accused. It was also held that the deceased should be subjected to cruelty or harassment 'soon before the death' only means that it must be sufficiently or closely connected with the death. It need not be immediately before death. The Supreme Court observed as follows:
' 'Soon before' 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. This expression is pregnant with the idea of proximity test. The term 'soon before' is not synonymous with the term 'immediately before' and is opposite of the expression 'soon after' as used and understood in Section 114, Illustration (a) of the Evidence Act. These words would imply that the interval should not be too long between the time of making the statement and the death. It contemplates the reasonable time which, as earlier noticed, has to be understood and determined under the peculiar circumstances of each case. In relation to dowry deaths, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be 'soon before death' if any other intervening circumstance showing the non-existence of such treatment is not brought on record, before such alleged treatment and the date of death.'
The expression death 'otherwise than under normal circumstances' used in Section 304B of Indian Penal Code would mean death not in the usual course (natural death)', but, apparently under suspicious circumstances, if not caused by burns or bodily injuries. In Shanthi v. State of Haryana (AIR 1991 SC 1226) it was held as follows:
'......where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before the death of the woman she was subjected to cruelty or harassment by her husband or his relations for or in connection with any demand for dowry, such death shall be called 'dowry death' and the husband or relatives shall be deemed to have caused her death ......'
Having the question of law thus explained, we will now consider the evidence on record to find out whether the finding of the Sessions Court is based on evidence and any interference is required in the conviction and sentence.
7. P.W. 1 is the father of the deceased. He gave Ext.P1 first information statement soon after he came to know about the death, by 8.45 p.m. on the same day. It was argued that there was delay in forwarding the F.I.R. to the Magistrate's Court. Even though it is the duty of the police to forward the F.I.R. to the Magistrate's Court immediately, delay caused by the police will not make the prosecution case wholly unbelievable. The Supreme Court in Anil Rai v. State of Bihar (JT 2001 (6) SC 515) held that Section 157 of the Code of Criminal Procedure is designed to keep the Magistrate informed of the investigation of such cognizable offence and F.I.R. should be forwarded to the Magistrate immediately without loss of time. The Court observed as follows:
'...... But where the F.I.R. is shown to have actually been recorded without delay and investigation started on the basis of the F.I.R., the delay in sending the copy of the report to the Magistrate cannot by itself justify the conclusion that the investigation was tainted and the Prosecution insupportable (Pala Singh and Anr. v. State of Punjab (AIR 1972 SC 2679)). Extraordinary delay in sending the copy of the F.I.R. to the Magistrate can be a circumstance to provide a legitimate basis for suspecting that the first information report was recorded at much later day than the stated day affording sufficient time to the prosecution to introduce improvement and embellishment, by setting up a distorted version of the occurrence. The delay contemplated under Section 157 of the Code of Criminal Procedure for doubting the authenticity of the F.I.R. is not ever delayed but only extraordinary and unexplained delay. However, in the absence of prejudice to the accused the omission by the police to submit the report does not vitiate the trial. This Court in Sarwan Singh and Ors. v. State of Punjab (AIR 1976 SC 2304) held that delay in despatch of first information report by itself is not a circumstance which can throw out the prosecution's case in its entirety, particularly when it is found on facts that the Prosecution had given a very cogent and reasonable explanation for the delay in despatch of the F.I.R.'
In this case, no question was asked to the investigating officer or to the prosecution witnesses regarding the delay and there is no suggestion that any prejudice is caused to the accused because of the delay.
8. In State of U.P. v. Jagdeo and Ors. (2002 AIR SCW 5330) it was held that accused cannot be acquitted on the ground that investigation was faulty. Negligence on the part of the police cannot affect the prosecution case. In this case, it is pertinent to note that the local police was trying to help the accused. Initial investigation of the crime was done by the Deputy Superintendent of Police, Karunagappally. Thereafter, investigation was conducted by the Circle Inspector of Police, Karunagappally under the instructions of Deputy Superintendent of Police, Karunagappally. The Circle Inspector of Police, Sasthamcotta was then on leave. Since the investigation was not done properly, alleging collusion with the accused and negligence on the part of Police, P.W. 1 approached this Court for proper investigation by filing O.P. No. 13266 of 1995. Thereafter, on the basis of Ext.P11 Judgment, the investigation was handed over to the Special Investigation Group of C.B.C.I.D., Thiruvananthapuram and after Deputy Superintendent of Police, C.B.C.I.D. took over the investigation charge-sheet was filed. Therefore, there were some technical default initially committed by the police. No question was asked to the investigating officers regarding delay in sending the F.I.R. to the Magistrate and defence has no case that any prejudice was caused by that delay. Further, the first information statement was given not by an eye-witness. Therefore, delay, if any, in sending the F.I.R. to the Magistrate on the facts of this case is not a ground for acquittal of the accused.
9. Post-mortem examination of Sudhakumari was conducted by P.W. 14 who was the Assistant Professor of Forensic Medicine, Medical College, Thiruvananthapuram. She was assisted by Dr. P. Sasi, Lecturer in the same Department. Ext.P4 is the postmortem certificate proved by P.W. 14. They noticed that frothy fluid was oozing through nostrils. Tip of her tongue was beaten. There was no injury to the external genitalia. Faecal discharge was seen at the anus. The doctors noticed the following ante-mortem injuries on the body of the deceased:
'1. Two contusions 4 cms. x 4 cm. x 0.5 cm. and 2 cm. x 1 cm., 2 cms., apart one above the other of the inner aspect of right arm, the former being 8 cms. above elbow;
2. Contusion 2 cm. x 2 cm. x 0.5 cm. on the back of left arm 3 cms. above elbow;
3. Contusion 5 cms. x 3 cms. x 1 cm. on the inner aspect of left arm 13 cms. above elbow;
4. Contusion 3 cms. x 3 cms. x 1 cm. on the outer aspect of left shoulder 2 cms. below its tip. The above contusions were blue in colour;
5. Contusion 4 cm. x 3 cm. x 0.5 cm. on the right side of front of neck 2 cm. to the right of midline and just behind the angle of jaw bone. Thyroid bone and cartilages of neck were normal and intact.'
The doctors also noticed that 'air passages were congested and contained bloodstained froth. Lungs were congested and edematous. Stomach contained violet crystalline material in fluid medium having an unusual smell. The upper part of the intestine also contained violet crystalline material. Opinion for the cause of death was due to poisoning. After getting Ext.P5 chemical analysis report, doctors gave the final opinion that cause of death was due to Carbo Furidan poisoning. The doctor also deposed that the contusions seen on the body of Sudhakumari can occur as a result of application of blunt force. P.W. 14 doctor also deposed that she could not rule out the possibility of forcible administration of poison in this case. She further stated that injury No. 5 will not be caused by restraining a struggling person during transportation and it will not be caused in an attempt of bystanders to hold the head straight. According to P.W. 14 fatal period of poison of Carbo Furidan is half to three hours. The poison acts the enzyme system which in turn affects the central nervous system and even the victim can loss consciousness immediately.
10. In this connection, we also refer to Ext.P2 inquest report prepared by P.W. 10 Tahasildar, Karunagappally. In Column 8A, he has noticed tenderness on the middle of the chest above the breast. There were similar injuries on the ribs on both sides. He had further noticed that blood had oozed out from the vaginal area (P.W. 14 doctor stated that Sudhakumari was not in her periods.). P.W.10 further noticed injuries above both the elbows. According to the Public Prosecutor, deposition of P.W.14, Ext.P4 postmortem certificate as well as deposition of P.W.10 and Ext.P2 inquest report will not rule out the possibility of forcible administration of poisoning. There is no evidence in this case that there is suicidal tendency to the deceased and she did not even attempt to commit suicide when A1 and A2 harassed her when her husband was not there. It happened when A3 came for short leave. The room where she stated to have consumed poison was not locked even according to the accused. Accused took her to the hospital only much later. There is no possibility for Sudhakumari to obtain Furidan. Unfortunately, as we have noticed earlier, the original investigation was very shabby and there is no charge-sheet under Section 302 of the Indian Penal Code. But, the incident happened in 1995. At this distance of time, we are not reopening that matter; but only considering whether on evidence on record ingredients of Sections 304B and 498A are satisfied.
11. Following facts are admitted in this case and there is no dispute:
(1) Deceased Sudhakumari is the younger daughter of P.Ws. 1 and 2;
(2) Her marriage with the third accused took place on 27th March, 1994 as per the customary rites;
(3) Accused Nos. 1 and 2 are the father and mother of accused No. 3;
(4) It is admitted in the statements under Section 313 of the Code of Criminal Procedure also thatbefore marriage, A1 and A2 were informed that 53 cents of property was set aparttowards her share;
(5) At the time of marriage, some gold ornaments were given to the deceased;
(6) Sudhakumari died due to consumption of poison and death was not a normal death;
(7) Third accused was in military service and he arrived back on leave on 12th July, 1995;
(8) Even though deceased was living in the house of her husband after the marriage, later, she had to go to the father's house and when they got information that her husband A3 came back on leave, with the help of P.W.8, P.W.1 father of Sudhakumari took her to the residence of A3 on 17th July, 1995;
(9) When A3 came on leave on 12th July, 1995, he did not visit or call his wife and on getting information of his arrival, her father P.W.1 had to take initiative to take her to A3 with the help of P.W.8 on 17th July, 1995. According to A3, since he was not well, he did not contact her for five days; and
(10) She consumed poison at the house of A1 to A3 on 20th July, 1995.
12. Evidence of P.W.1, father of the deceased, and P.W.2, the mother of the deceased, would clearly show that at the time of marriage, Sudhakumari was given 53 cents of property and gold ornaments worth 25 sovereigns. They lived at the residence of the accused for 40 days. Then A3 returned to join the military service on expiry of leave after leaving his wife Sudhakumari with A1 and A2. Houses of the accused and P.W.1 are about 12 kms. apart. After the marriage, deceased was living in the house alongwith A1 and A2, father and mother of her husband. When P.W.1 was lying ill, Sudhakumari visited him alongwith A2. After three or four days accused No. 3 came on leave. He told him that when his sister Lathika got married nothing was given as dowry. In order to give her dowry, 17 cents of property belonging to his father would be sold to Sudhakumari. For that purpose, he should be given Rs. 50,000/- and for the balance amount, gold ornaments worth few sovereigns could be sold. He told A3 that it can be given after one week. It was given and 17 cents of property was written in the name of the deceased. After that, A3 left to his work place. Defence tried to prove that in the statement under Section 161 Cr.P.C, the amount was mentioned as Rs. 5,000/-. But, that can be a clerical mistake also. It has also come out in evidence that out of the 56 cents of property given to Sudhakumari, 12 cents were mortgaged by her to her elder sister for raising a loan. According to P.W.1, later, demand was made to sell the 56 cents of property for the purpose of constructing a building for the residence of the accused. Since there was mortgage, that was not possible. P.Ws.1 and 2 also stated that Sudhakumari was being harassed by A1 and A2 for selling the 56 cents of property. Sudhakumari wanted to learn typewriting and she used to visit her father's house alone without taking the permission of A1 and A2. That is another subject-matter for harassment. When A3 came on leave again, he, alongwith Sudhakumari, visited P.W.1 and according to P.W.1, accused No. 3 asked how much price the 56 cents would fetch. He also stated that the 56 cents given to Sudhakumari at the time of marriage was a water-logged area. Then his daughter told him that accused Nos. 1 and 2 were speaking in the same tone and accused No. 3 slapped Sudhakumari on her face. Then P.W.1 told accused No. 3 to leave Sudhakumari at his residence when he was going to join military service after leave. When P.W.1 went to see off accused No. 3, he repeated the request. After a week, P.W.1 visited Sudhakumari and then he was told that she was being harassed continuously. On his subsequent visit also, Sudhakumari was repeating her complaints. At that time also accused No. 1 abused P.W.1 and told him that kerosene was available there and if he did not take his daughter to his house, she would be burnt to death. The matter was informed to P.W.8. When P.W.8 came to the residence of P.W.1 they informed P.W.1 that accused No. 3 had arrived on leave on 12th July, 1995. P.W.8 also stated that accused No. 3 had come with warrant and ticket to take Sudhakumari to his work place on 4th August, 1995. Accordingly, P.W.1 took Sudhakumari to the residence of P.W.8 and all the three persons went to the residence of accused and Sudhakumari was left there on 17th July, 1995. This is confirmed by P.W.8 in his deposition. Thereafter, on 20th July, 1995, he received a phone message from P.W.8 Devarajan that Sudhakumari died and she is in hospital. Immediately, they rushed to the hospital. None of the accused were there. They were told by the hospital authorities that people who brought the body of his daughter immediately left the place. P.W.8 was seen in the premises later. Nothing was brought out in cross-examination to disbelieve the evidence of P.W.1. Evidence of P.W.2 is also tally with the evidence of P.W.1.
13. P.W.7 is the husband of the sister of Sudhakumari. P.W.7 deposed that he went to the house of A3 on 20th July, 1995 around noon. A3 was not seen by him at the time of his visit. At that time, A1 and A2 spoke ill of Sudhakumari. At the time of his visit, A1, A2 and sister of A3 were present and he was abused and also stated that only wet land was given as dowry. He stated as follows:
When he left, Sudhakumari accompanied him upto the road and Sudhakumari told him that she is harassed everyday. She was asked to clear the loan and take the document from the Land Mortgage Bank. Then only it can be sold and a house can be constructed. It was stated as follows:
He returned and informed the matter to P.Ws.1 and 2. Later, on the same day evening, he came to know about the death of Sudhakumari.
14. P.W.3 is a close friend of Sudhakumari. She deposed that Sudhakumari used to tell her about the harassment in connection with the demand for dowry. P.Ws.4, 5 and 6 are neighbours of the accused. They have also stated that there was continuous harassment in connection with the demand for dowry. According to P.W.5, the accused used to harass Sudhakumari stating that they did pot get sufficient dowry and another better girl could have been got married. Similar is the version of P.W.6 who is a close neighbour of the accused. She also deposed that on the date of occurrence at about 12.00 noon, P.W.7 came to the residence of the accused and Al and A2 abused him. P.W.6 was standing in the courtyard and after taking tea given by Sudhakumari, he departed. Sudhakumari went back to the road narrating her woes. When A3 came by about 2.00 p.m. he was told that P.W.7 came there and Sudhakumari had cried and informed about the harassment to P.W.7 and thereupon A3 scolded her. A3 was talking in a raised voice. P.W.6 heard the cries of Sudhakumari. By about 5.00 p.m. a car came and by about 8.00 p.m. Sudhakumari was taken to the hospital. There is no circumstance to disbelieve P.W.6.
15. Evidence in this case very clearly show that there was continuous harassment by A1 and A2 regarding selling of the 56 cents of property Sudhakumari got at the time of marriage and stating that that property was only a wet land and A3 would have got a better girl and also regarding the mortgage of 12 cents of that property which was given at the time of marriage. Their evidence are consistent and cogent that A1 and A2 harassed her from the date of marriage onwards till death. Version of P.Ws.6 and 7 which are tallying each other also would show that even on the date of death, harassment was there in connection with dowry. It is true that there is no clear evidence that A3 was continuously harassing the deceased soon before her death demanding dowry. Of course, P.Ws.1 and 2 stated that when A3 also asked them regarding the mortgage of 56 cents of property. But, there is no evidence that A3 harassed Sudhakumari in connection with dowry soon before her death. It is true that A3 also slapped the deceased when on an earlier occasion he visited the house of P.W.1. Of course, it is true that forcible administration of poisoning cannot be ruled out. Even after analysing the evidence of doctor and inquest report, no charge sheet was issued under Section 302 I.P.C. At the time when P.W.7 came to the house of A1, A3 was not seen by him. At that time also, A1 and A2 were complaining about dowry and abused P.W.7. According to P.W.6, when A3 came back, A3 also spoke in loud voice and scolded the deceased. If the story of A3 is correct, he came on leave to take her to his work place, but, railway tickets or warrants were not produced. When he also scolded her on the date of her death as spoken to by P.W.6, she must have lost all hopes in life and because of the harassment, she must have committed suicide. We are not examining the question whether poison was administered to her as there is no charge under Section 302 I.P.C. So, from the evidence adduced, it can be concluded that A3 is not guilty under Section 304B of I.P.C. and he is guilty only under Section 498A. It is true that A3 came from leave on 12th July, 1995. He did not go to the house of P.W. 1 to visit his wife or to call her to his house. If he came for short leave on 12th July, 1995 to take her wife to the place of his employment, he would have definitely called her. P.W.1 took interest and with the help of P.W.8, she was taken to the house of accused by P.W.1, that too, only on 20th July, 1995. After the incident also, soon after Sudhakumari was brought to the hospital, her husband A3 and father A1 left.
16. According to A3, he went to the house of the friend and he returned only in the afternoon and he saw the deceased lying and struggling for life and, therefore, she was taken to the hospital. If it is a plea of alibi, it cannot be accepted as he did not disclose the name of the friend or the place of friend's house where he visited. It is true that there is no charge under Section 302 of the Indian Penal Code. It is admitted that he came at 2 O'clock. Much reliance was placed by the defence to show that Sudhakumari was taken to the hospital by 2.00 p.m. and they mainly relied on the evidence of P.W.12. He stated that he did not remember anything regarding the matter. He can state only as per the records; but wound certificate or wound register was not produced to show the entry on 20th July, 1995. He produced the original registers for the prior periods and periods after the date and deliberately suppressed the original of the register for the relevant period. Ext.P7 is the copy of I.P. register. Original was later produced as ExtC1. He stated that copy is attested by himself. Sudhakumari was brought dead at 2.00 p.m. on 20th July, 1995 as per the above. But, on a scrutiny of the I.P. register it would show that some persons were admitted at 10.00 a.m. and 11 other persons were admitted at 2.00 p.m. I.P. register entries were not serially numbered. The Sessions Court has correctly found that Ext.P7 entry is a subsequent insertion. It shows that the time mentioned in the register is not correct. P.W.12 himself in Ext.D2 statement to the police stated that Sudhakumari was brought at 5.30 p.m. on 20th July, 1995. In paragraph 29 of the Judgment, the Sessions Court has given good reasons for not accepting the time recorded in Ext.P1. Unacceptable conduct of P.W.12 and in holding that body was brought only by 5.30 p.m. or later. P.W.9 driver of the car in which deceased was taken to the hospital turned hostile. Even according to him, he came to the house of A1 only at 5.00 p.m. and Sudhakumari was taken to the hospital much later. If A3 came back at 2 O'clock and saw his wife struggling for life, one would rush to the hospital. Curiously enough, they waited there till she succumbed to death. P.W.9 hostile witness also deposed in chief examination itself that when Sudhakumari was brought to the hospital, she was declared dead by the doctor. According to the evidence, A3 came back at 2 O'clock. Effect of the poison Furidan is immediate and as per expert evidence death will take place within 30 minutes to three hours. According to P.W.6, A3 also spoken in a loud voice and scolded the deceased and P.W.6 heard the cry of the deceased and at that time only poison was consumed. It is, therefore, clear that at the time of consuming poison, apart from A1 and A2, A3 was also present at the place. They waited to take her to the hospital till she died. As already pointed out, there are lacunae in investigation. But, that lacunae will not help the accused to raise any reasonable doubt as evidence clearly show that A1, A2 and A3 harassed the deceased. The unnatural death of Sudhakumari happened within seven years of marriage and A1 and A2 were continuously harassing Sudhakumari from the date of marriage till the date of her death on the question of dowry and other matters. Consistent evidence given by P.Ws. 1 to 7 and the medical evidence only point Out to the guilt of A1 and A2 under Section 304B I.P.C. and their conviction under Section 304B is confirmed.
17. A1 and A2 were sentenced for life by the Sessions Court. At the time of commission of offence, that is, in 1995, A1 was aged 63 and A2 was aged 59 years. Now, they are 71 and 67. Taking into account their age, instead of life imprisonment, we award the sentence of nine years rigorous imprisonment with right of set off. Sentence awarded under Section 498A including fine is confirmed.
18. With regard to A3, since there is no clear evidence that he has harassed with respect to dowry at a time proximal to death, he cannot be convicted under Section 304B. But, the evidence would clearly show that he was also harassing the deceased and he is only guilty of offences punishable under Section 498A of the Indian Penal Code. Hence, his conviction under Section 498A and sentence of three years imprisonment and fine of Rs. 20,000/- for that offence is confirmed. Accused is entitled to the right of set off.
In the result, conviction in respect of A1 and A2 under Sections 304B and 498A is confirmed. However, their sentence for imprisonment for life under Section 304B is set aside and both of them are sentenced for rigorous imprisonment for nine years with right to set off: Their sentence under Section 498A for three years rigorous imprisonment and fine of Rs. 20,000/- with default sentence for six months is confirmed. Substantive term of sentence shall run concurrently. Conviction and sentence of A3 under Section 304B are set aside and his conviction and sentence under Section 498A are confirmed. If fine is realised from any of the accused, 50 per cent of the same should be paid to P.Ws.1 and 2, father and mother of the deceased. The appeal allowed partly.