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2005 Supreme(Ker) 645
Judges : R.BASANT
Murali - Appellant
Versus
State of Kerala - Respondent
Case No : Crl.A.No.378 of 2003 (C)
Decided On : 11/07/2005
Advocates Appeared :
For the Appellant: V. Chithambaresh, (Amicus Curiae), Advocate. For the Respondent: C.P. Saji, Public Prosecutor.
Headnote:
Indian Penal Code, 1860 - Sections 498A and 304B - Offence of Suicide and Dowry Death - Whether proved - Appeal against Conviction - Allegations against the appellant is that he was guilty of matrimonial cruelty against the deceased, his wife. The marriage between the two took place on 12.2.1995. One girl child was born in such wedlock - It is the case of the prosecution that the appellant was guilty of continuous and incessant cruelty against his wife. He was allegedly suspicious of his wife. He allegedly harassed his wife by frequent demands for amounts, which the prosecution describes to be demands for dowry. The unfortunate wife met her death on the night of 8.6.1998. Furidan, an insectiside/poison had found its way to the stomach of the deceased and that was identified to be the killer - Sections 498A and 304B I.P.C. He was sentenced to undergo R.I. for a period of three years under Section 498A and to undergo R.I. for a period of 10 years under S.304B I.P.C. there was a further direction to pay a compensation of Rs.50,000/- which was to be released to his only daughter under S.357(3) Cr.P.C. and in default to undergo R.I. for a further period of three years - Held, Expression 'the woman' used in clause (a) of the explanation must certainly suggest that the standards of the woman in question have to be adopted while considering whether the conduct impugned was likely to drive the said woman to commit suicide. The crucial question hence is whether there was wilful objectionable conduct and whether the deceased committed or attempted to commit suicide on account of such conduct. If so that must be held to be conduct of the culpabale variety under S.498A I.P.C. - Court assume that no presumption of law was intended to be introduced to fix culpability in a given case. The only intention was to say that such husband or relative who is guilty of harassment 'must be said to have' caused her death. If the expression 'deemed to have caused her death' were given any wider interpretation of fictional or deemed culpability, certainly the presumption under S.113B would be superfluous. More over, if such an interpretation were to be given to the expression 'deemed to have caused her death', even in the absence of a live link between cruelty or harassment and death such husband or relative will have to be held guilty of dowry death. Presumption of any of the three varieties contemplated under S.4 of the Evidence Act was not intended to be introduced by employment of such expression in S.304B. The expression 'deemed to have caused the dowry death' in S. 304B does not create any legal fiction. It only lays down the culpable responsibility for causing dowry death. It will further have to be shown that there was a live and proximate link between cruelty or harassment perpetrated against the victim woman by her husband or relatives and the death suffered by the victim - The demand need not necessarily be for dowry under S.498A - In order to attract S.304 B, such cruelty or harassment must be "for or in connection with any demand for dowry - Not necessary that there must be any actual agreement for making post marriage payments - Demands which come from the husband or his relatives at any time after marriage which are not as consideration for marriage but only in connection with marriage will qualify to be dowry - This appeal is allowed in part - Dowry Prohibition Act 1961, Section. 2 and 3
The appellant, a prisoner in custody, has preferred this appeal through prison authorities to assail the verdict of guilty, conviction and sentence imposed on him under Sections 498A and 304B I.P.C. He was sentenced to undergo R.I. for a period of three years under Section 498A and to undergo R.I. for a period of 10 years under Section 304B I.P.C. There was a further direction to pay a compensation of Rs.50,000/- which was to be released to his only daughter under Section 357(3) Cr.P.C. and in default to undergo R.I. for a further period of three years. The substantive sentences of imprisonment were directed to run concurrently.
2. Initially the appellant faced indictment for the offences under Sections 489A and 302 I.P.C. After the commencement of the trial, the learned Sessions Judge altered the charge and included the charge under Section 304B I.P.C. After giving all reasonable opportunity to the accused consequent to the amendment of charge by recalling the witnesses etc., the trial proceeded. Before the court below as also before this Court the accused did not engage a counsel of his own and counsel were appointed on State Brief to assist the appellant. The appellant appears to be fortunate in that he has received good legal assistance. The learned Sessions Judge in the judgment has mentioned that exemplary assistance was rendered to the appellant by counsel Miss. Merline George. I must pay similar compliments to Sri V. Chithambaresh, a fairly senior counsel, who at the request of the court, had rendered assistance to the appellant. On behalf of the State also the learned Public Prosecutor Sri. C.P. Saji has rendered great assistance to the Court.
3. The crux of the allegations against the appellant is that he was guilty of matrimonial cruelty against the deceased, his wife. The marriage between the two took place on 12.2.1995. One girl child was born in such wedlock. It is the case of the prosecution that the appellant was guilty of continuous and incessant cruelty against his wife. He was allegedly suspicious of his wife. He allegedly harassed his wife by frequent demands for amounts, which the prosecution describes to be demands for dowry. The unfortunate wife met her death on the night of 8.6.1998. Furidan, an insecticide/poison had found its way to the stomach of the deceased and that was identified to be the killer.
4. The prosecution initially alleged that the said poisonous substance was administered by the appellant to his wife. She was misled, with contumacious intent, to consume the poison, it was alleged. Later, after amendment of the charge, it was further and alternatively alleged that the appellant had, at any rate, committed the offence punishable under Section 304B I.P.C. He had sent his wife to her parental home insisting that she should come back with an amount of Rs.2,000/- She had taken refuge in her parental home. But the accused summoned her to return immediately when his parents went to an Ayurvedic hospital to take some treatment there. On 8.6.1998, the date prior to the date of her death, she was thus constrained to leave the safety of her parental home and return along with the accused to her matrimonial home. On that night the accused came home only by midnight after the other occupants of the house had gone to sleep. After the accused returned, by about 2.45 a.m. the deceased was found in a precarious condition, having already consumed poison; “or the poison having found its way already” into the system of the deceased.
5. Investigation commenced on the basis of Ext.P1 F.I. Statement lodged by PW1, the unfortunate father of the deceased. It culminated with the final report submitted by PW14, Deputy Superintendent of Police. Cognizance was taken. The case was committed to the court of Sessions. The accused denied the offences alleged against him. Thereupon the prosecution examined PWs.1 to 16 and proved Exts.P1 to P21. MOs, 1 to 5 were also marked.
6. PW1, as stated earlier, is the fathe
