(Prayer: Criminal Appeal is filed under Section 374(2) of Cr.P.C to call for the records relating to the Judgment dated 22.06.2022 made in S.C.No.383 of 2014 on the file of the learned Sessions Judge, Mahilar Court, Madurai and set aside the conviction and sentence imposed against the appellants/A1, A2, A4, A5 and A6 and allow the above appeal by acquitting the appellants.)

G.K. Ilanthiraiyan, J.

1. This appeal is directed as against the Judgment passed in S.C.No.383 of 2014, dated 22.06.2022, on the file of the learned Sessions Judge, Mahilar Court, Madurai, thereby convicting the appellants for the offences punishable under Sections 498(A) and 304-B of I.P.C.

2. The case of the prosecution is that the first accused is the husband of the deceased, accused Nos.2 and 3 are the parents of the first accused, accused No.4 is the sister of the first accused, accused No.5 is the husband of the fourth accused and accused No.6 is the mother of accused No.5. All the accused are relatives. The marriage between the first accused and deceased was solemnized on 15.02.2009. Out of their wedlock, a male child was born in the year 2010. Thereafter, the father of the deceased expired. Subsequently, disputes arose due to the unlawful demand of huge dowry by the accused. Hence, the deceased went to her parental home. After the demise of the deceased's father, the accused demanded one-third share in the death benefits of her father. Further, they also demanded 10 sovereigns of gold jewels from the parents of the deceased. Since the father of the deceased was working as and Assistant Agricultural Officer, the accused expected more dowry from the deceased's family. The deceased did not return to her matrimonial home till December 2013.

3. While being so, during the month of December 2013, the first accused requested the deceased and her mother to send the deceased back to the matrimonial home. He also promised that he would not demand any jewels or cash. Believing the said words, the deceased returned to her matrimonial home along with her child.

4. While being so, on 02.01.2014, the accused once again demanded dowry of 10 sovereigns of gold jewels and also one-third share in the death benefits of her father. Therefore, the deceased once again returned to her parental home. She also lodged a complaint before the All Women Police Station, Usilampatti and a C.S.R was issued. While the enquiry was pending, the first accused filed a divorce petition and the deceased received the divorce notice from the Court on 02.04.2014. On seeing the Court notice, the deceased became upset and at about 03.15 p.m on 02.04.2014, she herself poured kerosene and set fire on herself at her parental home. She was immediately taken to the Government Hospital, Usilampatti and thereafter referred to the Government Rajaji Hospital, Madurai. However, she succumbed to the burn injuries at about 08.45 p.m. On the next day, on 03.04.2014, a complaint was lodged and the same has been registered in Crime No.119 of 2014 for the offences punishable under Sections 498(A) and 304-B of I.P.C. After completion of investigation, the respondent filed a final report and the same has been taken cognizance by the Trial Court.

5. On the side of the prosecution, in order to bring the charges to home, they examined P.W.1 to P.W.15 and Exs.P1 to P18 were marked. The prosecution also produced Material Object M.O.1. On the side of the accused, Ex.D.1 to Ex.D.3 were marked and no witnesses were examined before the Trial Court.

6. On perusal of the oral and documentary evidence, the trial Court found A.1 guilty for the offences punishable under Sections 498(A) and 304-B of I.P.C and found Accused Nos.2, 4, 5 and 6 guilty for the offences punishable under Sections 498(A) and 304-B of I.P.C. A.1 was sentenced to undergo three years Rigorous Imprisonment and to pay a fine of Rs.2,00,000/- in default, to undergo six months Simple Imprisonment for the offence punishable under Section 498(A) of I.P.C and he was sentenced to undergo Life Imprisonment for the offence punishable under Section 304-B of I.P.C. Accused Nos.2, 4, 5 and 6 were sentenced to undergo three years Rigorous Imprisonment each and to pay a fine of Rs.5,000/- each in default, to undergo six months Simple Imprisonment each for the offence punishable under Section 498(A) of I.P.C and Accused Nos.2, 4, 5 and 6 were sentenced to undergo seven years Rigorous Imprisonment each for the offence punishable under Section 304-B of I.P.C.

7. During the pendency of the trial, A.3, the father-in-law of the deceased, died and as such, all the charges against him stood abated. Aggrieved by the same, Accused Nos.1, 2, 4, 5 and 6 have preferred the present appeal as appellants.

8. The learned senior counsel appearing for the appellants submitted that even according to the case of the prosecution, the deceased went to her parental home on 02.01.2014. Thereafter, on 02.04.2014, she poured kerosene and set herself on fire. Therefore, there are absolutely no ingredients to attract the offence under Section 304-B of I.P.C. In order to prove the charge under Section 304-B of I.P.C., there must be cruelty or harassment at the hands of the accused soon before the death of the deceased.

9. In the case on hand, the deceased went to her parental home as early as on 02.01.2014 and committed suicide only on 02.04.2014, that too after receiving the notice in the divorce petition issued by the Trial Court. Therefore, the prosecution failed to prove the charge under Section 304-B of of I.P.C.

10. In support of his contention, the learned senior counsel relied upon several Judgments of the Honourable Supreme Court of India and of this Court.

11. The learned senior counsel appearing for the appellants further submitted that insofar as the offence under Section 498-A of I.P.C is concerned, though the Revenue Divisional Officer conducted an enquiry and revealed that there was a dowry demand, after such alleged dowry demand, the deceased returned to the matrimonial home. Thereafter, there was absolutely no allegation as against the appellants herein with regard to any further demand of dowry. All of a sudden, after seeing the notice issued by the Court in the divorce petition, the deceased became agitated and committed suicide by pouring kerosene on herself. It establishes the intolerant character of the deceased that she has no tolerance for anything. The Trial Court convicted the appellants only on the basis of dying declaration from the deceased. Even as per the dying declaration she made specific allegation only as against Accused Nos. 1 and 4 to 6. There was absolutely no establishment of motive as against A.2 and A.3, who are none other than in-laws of the deceased. However, A.3 died during trial and no charge was made as against A.3 for the offences under Sections 498-A and 304-B of I.P.C

12. The learned senior counsel further submitted that the deceased failed to discharge her matrimonial obligations and that immediately after giving birth to a male child, she went to her parental home. In fact, she went to her parental home for delivery and thereafter did not return back to the matrimonial home. Only in the year 2013, at the request of the first accused and appellants, the deceased returned back to the matrimonial home. Thereafter, there was absolutely no complaint as against the appellants. Once again, on her own, she went to her parental home. Therefore, the first accused filed a divorce petition on several grounds, which was numbered as H.M.O.P.No.67 of 2014 on the file of the Sub Court, Usilampatti. Thereafter, the Court issued notice to the deceased. On receipt of the said notice, she committed suicide.

13. Per contra, the learned Additional Public Prosecutor appearing for the respondent submitted that there was continuous harassment meted out to the deceased at the hands of the accused. They frequently demanded huge dowry from the deceased immediately after the demise of her father. The accused demanded one-third share in the death benefits of her father and also 10 sovereigns of gold jewels. When the deceased failed to bring the demanded dowry from her parents, she was driven out of the matrimonial home. In fact, she also lodged complaint before the All Women Police Station, Usilampatti and a C.S.R was issued, which was marked as Ex.P.4. Therefore, there was continuous harassment by way of dowry demand.

14. While being so, the first accused filed a divorce petition, pursuant to which the Court issued notice. On receipt of the said notice on 02.04.2014, she became upset and committed suicide by setting herself on fire after pouring kerosene. Further, the deceased was very much conscious while being taken to the hospital. Her dying declaration was recorded and marked as Ex.P.14.

15. Ex.P.14 clearly reveals that due to continuous harassment and dowry demand at the hands of the accused and also on receipt of the notice in the divorce petition filed by A.1, the deceased committed suicide. Therefore, the prosecution clearly proved the charges under Sections 498(A) and 304-B of I.P.C before the Trial Court. Hence, the appellants were rightly convicted for the offences punishable under Sections 498(A) and 304-B of I.P.C and the same does not warrant any interference of this Court.

16. Heard the learned counsel appearing on either side and perused the materials placed on record.

17. There are totally six accused, out of whom A.3 died during the pendency of the trial. Therefore, the charges for the offences punishable under Sections 498(A) and 304-B of I.P.C stood abated as against him. The first accused, being the husband of the deceased, was instigated by A.4 to A.6, who are none other than his sister, her husband and the mother of the fifth accused and they collectively demanded huge dowry from the deceased. They also assaulted her in connection with the dowry demand. While the deceased was residing in the matrimonial home, she delivered a male child in the year 2010 at her parental home. Thereafter, due to harassment meted out by the accused, the deceased did not return back to the matrimonial home. Only in the month of December 2013, A.1 requested P.W.1, who is mother of the deceased, to send her back to the matrimonial home and assured that there would be no harassment by demanding dowry. Believing the said assurance, the deceased returned to the matrimonial home. However, once again, A.1 at the instigation of A.4 to A.6, demanded dowry and assaulted her. Consequently, the deceased returned to her parental home on 02.01.2014 and on the same day, she lodged a complaint, which was marked as Ex.P4.

18. A perusal of Ex.P4 reveals that the deceased made specific allegations as against A.1 and A.4 to A.6 with regard to demand of dowry. She also alleged that A.1 and A.4 to A.6 assaulted her and drove her out of the matrimonial home. Therefore, in order to save herself from that misery, the deceased went to her parental home. On receipt of the said complaint, a CSR was issued. During the enquiry, all the accused appeared before the Inspector of Police, All Women Police Station, Usilampatti and assured their cooperation in the enquiry.

19. While the enquiry was pending, A.1 filed a divorce petition in H.M.O.P.No.67 of 2014 before the Sub Court, Usilampatti. After receipt of the divorce petition, the Court numbered the same and issued notice to the deceased, which was served on her on 02.04.2014.

20. The mother of the deceased had deposed as P.W.1. Her evidence reveals that even at the time of marriage there was a demand of dowry, which was fulfilled by them. After the marriage, the deceased and A.1 resided in their matrimonial home at Chennai. Thereafter, the deceased got pregnant and was brought to her parental home for delivery, where she gave birth to a male child on 06.04.2010. Subsequently, the husband of P.W.1 unfortunately died on 12.04.2010. Even while he was undergoing treatment in the hospital, there was a demand for huge dowry, due to which he suffered mental stress and ultimately succumbed to a heart attack.

21. While being so, A.1 requested P.W.1 to send his wife back to the matrimonial home and assured that they would not be no dowry demand. Relying upon the assurance, P.W.1 sent the deceased to the matrimonial home in the month of December 2013. However, within a month, there was dowry demand and as such on 02.01.2014, the deceased once again returned to her parental home. She also lodged a complaint before the Inspector of Police, All Women Police Station Usilampatti. The said facts are corroborated by the evidence of P.W.2, who is none other than the brother of the deceased. The sister of the deceased was examined as P.W.3 and she also corroborated the evidence of P.W.1 and P.W.2. However, there is not even a whisper of allegation against A.2 and A.3 regarding dowry demand or harassment. All allegations were levelled only as against A.1 and A.4 to A.6. Therefore, the prosecution failed to prove the charges against A.2 and A.3. Since A.3 died during the trial, the entire conviction and sentence imposed as against A.3 stood abated. The conviction and sentence imposed against A.2 cannot be sustained and are liable to be set aside.

22. Insofar as A.1 and A.4 to A.6 are concerned, the prosecution clearly proved the charge under Section 498-A of I.P.C by cogent and clinching evidence. Therefore, the Trial Court rightly convicted them for the said offence and the same does not warrant any interference of this Court.

23. Insofar as the charge under Section 304-B of IPC is concerned, the prosecution mainly relied upon the dying declaration of the deceased, which was marked as Ex.P.14. On a perusal Ex.P.14, it is clear that only on receipt of the notice from the Court in the divorce petition filed by A.1 on 02.04.2014, the deceased became upset and at about 3.15 p.m on 02.04.2014, poured kerosene on herself and set fire on her own thereby committing suicide. The relevant portion of her dying declaration is extracted hereunder:







24. Thus, it is clear that there are specific allegations as against A.1 and A.4 to A6 in respect of demand of dowry and harassment. Further, after receipt of the notice from the Court in the divorce petition, the deceased poured kerosene and set fire on her own to commit suicide. The said facts are corroborated by the evidence of P.W.1 to P.W.3. The relevant portion of the evidence of P.W.1 is as follows:





25. It is also relevant to extract the relevant portion of the evidence of P.W.2, which reads as follows:



26. Thus, it is evident that the deceased went to her parental home as early as on 02.01.2014, which is also borne out by the complaint lodged by her, which is marked as Ex.P.4, before the Inspector of Police, All Women Police Station Usilampatti, with regard to demand of dowry. After a period of nearly three months, i.e. On 02.04.2014, the deceased was served with notice from the Court in H.M.O.P.No.67 of 2014 filed by A.1. Immediately on receipt of the said notice, the deceased poured kerosene on herself and set fire on her own, sustained burn injuries and subsequently died in the hospital.

27. From the above evidence, it has to be seen that whether the prosecution has proved the charge under Section 304-B of IPC or not. It is relevant to extract Section 304-B of IPC, which reads 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.

                  For the purposes of this sub-section, presumption can be raised only on proving of the following essence:

                  (a) the death of a woman was caused by any burns or bodily injury or occurs otherwise than under normal circumstances

                  (b) the said death took place within seven years of her marriage.

                  (c) the woman was subjected to the cruelty or harassment by her husband or his relatives.

                  (d) such cruelty or harassment was for, or in connection with, any demand for dowry.

                  (e) such cruelty or harassment was soon before her death.”

28. Thus, it is clear that where the death of a woman is caused by any burns or bodily injury, or occurs otherwise than under normal circumstances, and such death takes place 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 a “dowry death”.

29. Section 113-B of the Indian Evidence Act, 1872, enjoins a statutory presumption as to dowry death in the following terms:

                   “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 had 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 Indian Penal Code (45 of 1860).”

                  The presumption under Section 113-B will apply when it is established that soon before her death, the woman has been subjected by the accused to cruelty or harassment for, or in connection with, any demand for dowry. Therefore, even for attracting Section 113-B, the prosecution must establish that the deceased was subjected by the appellant to cruelty or harassment for or in connection with any demand of dowry soon before her death. Unless these facts are proved, the presumptions under Section 113-B of the Evidence Act cannot be invoked.”

30. The scope and purport of Section 304-B of IPC and Section 113-B of the Indian Evidence Act, 1872, make it clear that the presumption is contingent upon the prosecution first establishing the ingredients of the offence of Section 304-B of IPC. Furthermore, the essential ingredient is that the accused must have subjected the women to cruelty or harassment in connection with the demand for dowry soon before her death. This ingredient has to be proved by the prosecution beyond reasonable doubt. Only thereafter can the Court presume that the accused has committed the offence of dowry death under Section 113 of the Indian Evidence Act.

31. In the case on hand, admittedly, the deceased went to her parental home on 02.01.2014. Thereafter, there was no such allegation as against the accused that they demanded dowry or harassed her. It was only on 02.04.2014 and that too after receipt of the notice issued by the Court in the divorce petition filed by A.1, that the deceased became upset and committed suicide. Therefore, the presumption under Section 113-B of the Indian Evidence Act, 1872, cannot be applied, as the prosecution failed to establish that soon before her death, the deceased was subjected to cruelty or harassment by the accused in connection with any demand for dowry. Hence the provision under Section 113-B of the Indian Evidence Act, 1872 cannot be invoked to punish the accused for the offence punishable under Section 304-B of IPC.

32. That apart, the occurrence took place after seven years from the date of the marriage between A.1 and the deceased. Therefore, the prosecution has failed to prove the charge under Section 304-B of IPC against any of the accused.

33. In view of the above, this Court passes the following order:

                  (i) The entire conviction and sentence imposed as against A.2 for the offence under Sections 498(A) and 304-B of I.P.C are set aside and A.2 is acquitted of all the charges.

                  (ii) Insofar as A.1 and A.4 to A.6 is concerned, the conviction and sentence imposed on them for the offence punishable under Section 304-B of I.P.C are set aside and they are acquitted of the said charge.

                  (iii) The conviction and sentence imposed on A.1 for the offence punishable under Section 498-A of I.P.C are hereby confirmed.

                  (iv) The conviction imposed on A.4 to A.6 for the offence punishable under Section 498-A of I.P.C is hereby confirmed.

                  (v) The sentence of three years imprisonment imposed on A.4 and A.5 for the offence punishable under Section 498-A of I.P.C is modified to two years Simple Imprisonment.

                  (vi) The sentence of three years imprisonment imposed on A.6 for the offence punishable under Section 498-A of I.P.C is modified to one year Simple Imprisonment.

                  (vii) The fine amount, if any paid, in respect of the offences under Section 304-B and 498(A) of I.P.C shall be refunded to A.2, A.4 to A.6 forthwith.

                  (viii) The sentences of imprisonment imposed on A.1 and A.4 to A.6 shall run concurrently.

                  (ix) The period of imprisonment already undergone by A.1 and A.4 to A.6 shall be set off under Section 428 of Cr.P.C.

34. With the above modifications, the Criminal Appeal is partly allowed. The respondent is directed to secure A.1 and A.4 to A.6 and produce them before the Trial Court for taking further steps in accordance with law.