Appeal under Section 374 (2) of the Code of Criminal Procedure against the Judgment dated 08.06.2007 made in S.C.No.135/2006 dated 18.12.2006 on the file of Principal Sessions Judge, Tanjore.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 07/07/2009

CORAM
THE HONOURABLE MRS.JUSTICE R.BANUMATHI
AND
THE HONOURABLE SELVI JUSTICE R.MALA

Criminal Appeal (MD) No.5 of 2008
.. Appellant
Raja

vs

State rep. by
Dy. Superintendent of Police,
Kabisthalam Police Station,
[Cr.No.130/2003] .. Respondent

Appeal under Section 374 (2) of the Code of Criminal Procedure against the
Judgment dated 08.06.2007 made in S.C.No.135/2006 dated 18.12.2006 on the file
of Principal Sessions Judge, Tanjore.

!For Petitioner ... Mr.C.M.Arumugam
^For Respondent ... Mr.Daniel Manoharan,
       Addl. Public Prosecutor

:JUDGMENT

R.MALA,J

This appeal is directed against the verdict of conviction in
S.C.No.135/2006 whereby the Appellant/Accused was convicted for dowry harassment
U/s.498(A) IPC and U/s.302 IPC and sentencing him to undergo 3 years RI and life
imprisonment respectively and also imposing fine.

2. Briefly stated case of prosecution is as follows:-
Deceased Vijaya @ Jeeva is the daughter of PW1-Mahalingam and PW2-
Soundaravalli.  Accused-Raja and deceased Vijaya got married and their marriage
was love marriage.  Initially, marriage was not to the liking of the parents of
deceased Vijaya and later both the families reconciled.  Accused and deceased
were living happily for about one year.  PW1 gave 4 sovereign jewels to his
daughter Vijaya.  While accused and deceased were living together, accused was
frequently demanding money and jewels and subjected her to dowry harassment.
About few days prior to the occurrence, accused was demanding TVS-50 vehicle.
Accused was also allegedly proclaiming that if TVS-50 is not given to him, he
would kill his wife and marry another woman.  Demanding TVS-50, accused had
beaten Vijaya and Vijaya had gone to her parents house.  PWs.1 and 2 pacified
Vijaya and sent her back stating that they would get TVS-50 for the accused
within a week.

3. On 04.4.2003 Vijaya died of burn injuries.  Accused also sustained burn
injuries in his arms.  PWs.4 and 5 [Selvaraj and Jegannathan] saw the accused
coming out with burn injuries.  Accused did not say anything about the burn
injuries sustained by them.  PWs.1 and 2 learnt about death of their daughter
and went to the house of accused at 6.30 P.M. and saw body of Vijaya with burn
injuries.  Since, it was late in the day, PW1 went to Kabisthalam Police Station
on 05.4.2003 and lodged Ex.P1-Complaint, on the basis of which, a case of
suspicious death was registered in Cr. No.130/2003 U/s.174 Cr.P.C.[Ex.P7].  PW4-
Inspector of Police arrested the accused who was taking treatment in the
hospital for his burn injuries.  PW15-Dy. Superintendent of Police, Bapanasam
had taken up investigation.  Scene of occurrence was inspected and PW15-Dy.
Superintendent of Police prepared Ex.P2-Observation Mahazar, Exs.P9 and P10-
Rough Plans.  MO10-Kerosene tin was seized under Ex.P3-Seizure Mahazar.

4. Since death was suspicious death of a married woman within 7 years of
marriage, RDO, Kumbakonam had taken up investigation.  RDO had conducted enquiry
and Inquest.  Ex.P8 is the  report of RDO.    After Inquest, body was sent to
autopsy.  PW10 Dr.Parthasarathy has conducted autopsy and issued Ex.P6-post
mortem certificate opining that the death was due to burn injuries.  On the
basis of report of RDO, case was altered from Sec.174 Cr.P.C., to Sec.302 IPC
under Ex.P11-Alteration Report.  After examination of witnesses and on
completion of investigation, PW15-DSP filed final report U/s.498-A and 302 IPC.

5. To substantiate the Charges against the accused in the trial court,
prosecution examined PWs.1 to 15 and Exs.P1 to 11  and MOs.1 and 2  were marked.
Accused was questioned U/s.313 Cr.P.C. about the incriminating evidence and
circumstance.  Accused denied all of them and pleaded not guilty and stated that
a false case is foisted against him.

6. Upon analysis of evidence and on the evidence of PWs.1 and 2, learned
Sessions Judge held that prosecution has established that deceased was subjected
to dowry harassment.  Learned Sessions Judge took the view that accused has no
acceptable explanation for the death of his wife.  Learned Sessions Judge also
held that accused had not satisfactorily explained the burn injuries sustained
by him and on those findings, convicted the appellant/accused U/s.498-A and 302
IPC and sentenced as aforesaid.
7. The learned counsel for the appellant submitted that absolutely there
is no evidence as to demand of dowry and evidence of PWs.1 to 3 is unacceptable.
The learned counsel would further submit that the accused himself had sustained
burn injuries would  clearly show that the accused went to the rescue of his
wife but sustained burn injuries due to bursting of  a stove.  Taking us through
Ex.P.1 - Complaint, the learned counsel submitted that there is an inordinate
delay in lodging the complaint and registration of the F.I.R. and serious doubts
has arisen as to the prosecution version, the benefit of doubt should be given
to the accused.

8. Countering the arguments, the learned Additional Public Prosecutor
submitted that the occurrence being happened in the house of the accused, it is
for the accused to explain the death of the deceased and that the accused has
not come out with proper explanation as to the death of his wife.   Taking us
through the evidence of PWs.1 to 3, the learned Additional Public Prosecutor
would further submit that the evidence of PWs.1 to 3  would show that the demand
of dowry has been proved by their evidence and that, since the death was due to
burn injuries, in the absence of any explanation by the accused, the learned
Sessions Judge rightly convicted the appellant/accused under Section 302 IPC and
the conviction warrants no interference.

9. The first limb of argument advanced by the learned counsel for the
appellant is P.Ws.1 to 3 were examined to prove the demand of dowry, but, there
is no independent witness has been examined and hence there is no iota of
evidence for incriminating the accused under Section 498(A) IPC.  While perusing
the evidence of P.Ws.1 to 3, it is true that the marriage between accused Raja
and deceased Vijaya @ Jeeva is love marriage.  The deceased left her parental
home and gone to the accused home and then panchayatdars performed their
marriage.   P.Ws.1 and 2 have not given consent for marriage.  After the
marriage, they were pacified and during Pongal season, they provided "Pongal
Seervarisai"  and Jewels and other utensils and the same has been fortified by
P.Ws.1 to 3.  There is no reason for discarding the evidence of P.Ws.1 and 2,
who are none other than parents of the deceased.  Even they were facing the
lengthy cross examination, nothing against them has been culled out.

10. P.W.3-Kaliaperumal has deposed in his evidence that after the accused
Raja demanding dowry, the deceased Vijaya came to his house and intimated that
the accused has demanded money  and he compromised both P.W.1 and the accused
and settled the matter.  While considering the evidence of P.W.3-Kaliaperumal,
it is clear that the appellant/accused whenever demanded money, that demand had
been met out by P.Ws.1 and P.W.2.  After the accused joined with his parents-in-
law, for taking licence, Rs.1,500/- paid by P.Ws.1 and 2 to the
appellant/accused.  Though he is Uncle of P.W.1, his evidence is cogent,
natural, trustworthy and reliable.
11. Prior to the incident, appellant/accused has demanded TVS 50.  Since
P.Ws.1 and 2 were not able to fulfil the demand of the accused, the
appellant/accused tortured his wife.  So, the evidence of P.Ws.1 to 3 clearly
proved that before the incident the accused has demanded money for purchasing
TVS 50.  Hence, we confirm the findings of the learned trial Judged regarding
the conviction and sentence imposed on the appellant/accused for the offence
under Section 498(A) IPC.

12. Now, we have to decide whether the death of the deceased is homicidal
or accidental.  It is pertinent to note that P.W.10-Dr.Parthasarathy has
conducted autopsy and issued Ex.P6 Post mortem certificate and opined that the
deceased died 24-36 prior to postmortem due to extensive burns and shock which
are antemortem in nature.  So, the death of the deceased is due to burn injuries
sustained by the deceased.  Here, P.Ws.1 to 3 are not eye witnesses.  Their
house is adjacent to the house of the accused.  P.W.4-Selvaraj and P.W.5-
Jegannathan have deposed before the trial Court that when they were at 'TV
Mandram', they heard the news that the house of the accused was burning and they
rushed to the place of occurrence and at that time the accused came out of his
house with burn injuries and partly burnt lungi; immediately they entered the
house and saw that the deceased has flamed with fire and they were not able to
put off the fire.  They further deposed that the deceased wandering here and
there and fallen down and then only, they poured water and put off the fire, but
she died.

13. While considering the cross examination of P.Ws.4 and 5 nothing
against them has been culled out.  Hence, their evidence is natural, cogent,
trustworthy and reliable.  Even though, there is no witness as to say that the
accused/appellant has poured kerosene and set fire on her, P.Ws.4 and 5
witnessed that the accused came out of his house with burn injuries and partly
burnt lungi.  The deceased sustained extensive burn injuries and wandering here
and there and fallen down and died.

14. The learned counsel for the appellant would submit that there is a
delay in preferring the complaint.  But, while considering Ex.P1, we find that
there is no delay in preferring the complaint.  The occurrence had taken place
on 04.04.2003 at 4.30 P.M.  P.Ws.1 and 2 are the residents of half kilometre
away from the place of occurrence.  They received the information and reached
the place of occurrence and they have not seen any inmates of the
appellant/accused house.  Because of non availability of bus facility, P.W.1
gone to the Police Station on the very next day i.e. on 05.4.2003 at 7.30 A.M.
and lodged Ex.P1-Complaint, on the basis of which, a case of suspicious death
was registered in Cr. No.130/2003 U/s.174 Cr.P.C.[Ex.P7].  Hence, we are of the
considered view that there was no delay in preferring the complaint and the
short delay has also been properly explained by the prosecution.

15. Admittedly, there are no eye-witnesses.  Evidence of neighbours PWs.4
and 5 is only to the effect that they heard the noise and went to the house of
the accused and saw the deceased burning.  They also saw the accused with burn
injuries.  To substantiate the homicidal death, the only circumstance relied
upon by the prosecution is that the accused was the inmate of the house.
Evidence adduced by the prosecution do not form a complete chain establishing
the guilt of the accused.  There is nothing to establish that the accused
intentionally poured kerosene and set ablaze to his wife.  Upon analysis of
evidence on record, we are of the view that the conviction of the appellant-
accused U/s.302 IPC cannot be sustained.

16.  While considering his subsequent conduct of the accused, since
accused came out of the house with burn injuries, he rushed to Kumbakonam
Government Hospital, where, P.W.9-Dr.Arulraj, admitted the appellant/accused and
gave treatment and issued Ex.P5-Accident Register Copy.  In that, the accused
stated before P.W.9-Dr.Arulraj, that on 04.04.2003 at about 4.30 P.M., when he
has set fire on the sugarcane leaves, he sustained injuries which is a false
statement given by the accused before P.W.9 Doctor. Hence, the argument of the
learned appellant counsel that when the appellant/accused tried to put off fire
on his wife, he also has sustained injuries is an unacceptable one.  Moreover a
suggestion was posed to him that as to the possibility of sustaining burn injury
whether when a person has attempted to rescue a person from fire, P.W.9-
Dr.Arulraj accepted the suggestion.  But, while considering Ex.P5-A.R.Copy of
the accused, the appellant/accused has given a different version before P.W.9
Doctor, who treated him.

17. Though, it is not the case of homicidal death, we are convinced that
the ingredients of Sec.304 (B) IPC are satisfied.  As discussed earlier, by
cogent evidence, prosecution has established that soon before the death,
deceased Jeeva was subjected to cruelty in connection with the demand for dowry
and TVS-50 vehicle.  Therefore, though the case of homicidal death is not made
out, prosecution can successfully canvassed the conviction U/s.304 (B) IPC.

18. When a question arises whether a person has committed the offence of a
dowry death of a woman what is necessary is that it should be shown that soon
before her unnatural death, which took place within seven years of the marriage,
the deceased had been subjected to cruelty or harassment for or in connection
with the demand of dowry.  If that is shown. the court shall presume that such a
person has caused the dowry death.  It is imperative, for invoking the legal
presumption,to prove that "soon before her death" she was subjected to such
cruelty or harassment.

19. Section 113(B) of Evidence Act creates presumption of dowry death.
Section 113(B) of Evidence Act reads as under:

"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."

As already discussed in paragraph No.9, we are of the considered opinion that
the appellant/accused demanded dowry.  When it is the duty of the
appellant/accused to prove that he has not committed such offence.  But, here no
evidence has been let in by him.

20. We have to consider the conduct of the appellant/accused.  If really,
he has not set fire on his wife, he would have intimated the incident to his in-
laws  through a messenger or inform to her parents.  But, after the occurrence,
the appellant/accused ran away from the place of occurrence and admitted in
hospital and there he put forth a different story.  It is pertinent to note that
during the enquiry of Revenue Divisional Officer, no one related to the family
of the accused was there except the mother of the appellant/accused.  During the
enquiry of R.D.O., the witnesses stated before him that already one incident was
happened that the accused had poured kerosene on his wife and attempted to set
fire on her, that has been prevented and the accused was warned.

21. Even though a story has been put forth  that a stove has been burst
and the deceased sustained burn injuries, it has not been proved by the defence.
On a perusal of Ex.P2, Observation Mahazar and Ex.P10, Rough Plan, it has not
mentioned that any part of  burst stove has been available at the scene of
occurrence.  As per Ex.P10, burners are available, one is inside the house and
another is extreme north east of the out side of the house.  But the occurrence
has been taken place at south east of the house.  In the place of occurrence,
M.O1 kerosene tin has been seized under Ex,P3-Mahazar.  So, from the Observation
Mahazar and Rough Plan, it has clearly mentioned that smoke remains in the place
of occurrence.  So, the story put forth by the defence that the deceased
sustained injury due to the stove burst does not merit acceptance.

22. The learned counsel would contend that if the Court feels that the
accused is guilty, it would not come under Section 302 IPC and it would come
only under Section 304(B) IPC and relied upon the decision reported in (2009)1
Supreme Court Cases (Cri) 317 (State of Rajasthan Vs. Jaggu Ram).  The relevant
portion is as follows:
"The  ingredients necessary for the application of Section 304-B IPC are:

1.that the death of a woman has been caused by burns or bodily injury or
occurs otherwise than under normal circumstances;

2.that such death has been caused or has occurred within seven years of
her marriage; and

3.that soon before her death the woman was subjected to cruelty or
harassment by her husband or any relative of her husband in connection with any
demand for dowry.
"Section 113-B of the Evidence Act lays down that if soon before her death
a woman is subjected to cruelty or harassment for, or in connection with any
demand for dowry by the person who is accused of causing her death then the
court shall presume that such person has caused the dowry death.  The
presumption under Section 113-B is a presumption of law and once the prosecution
establishes the essential ingredients mentioned therein it becomes the duty of
the court to raise a presumption that the accused caused the dowry death."



23. Considering the above said citation, the following ingredients
necessary for the application of Section 304-B IPC are established:
(i) the marriage of the accused and deceased has been taken place on
07.07.2000, but the death of the deceased has occurred on 04.04.2003, within
seven years of her marriage; and
(ii) as per the evidence of P.Ws.1 to 3, the appellant/accused demanded
dowry from the deceased and since she was not able to fulfill his demand and
hence she was subjected to cruelty and harassment by her husband/appellant.
(iii) as per the evidence of P.Ws.4 and 5, the death of the woman has been
caused by burn injuries occurred otherwise than under normal circumstances ,
that has been fortified by P.W.9-Doctor and Ex.P6-Postmortem certificatewe are
of the view that the ingredients of Section304(B) IPC has been made out in this
case;
Hence, the ratio above citation is squarely applicable to the facts of this
case.
24. As narrated above, as per the evidence of P.Ws.4 and 5, they
have witnessed the appellant/accused, who came out of his house with burn
injuries and partly burnt lungi.  Since the deceased was flamed with fire, they
were not able to put off the same.  When the deceased wandering here and there
and fallen down, then only they poured water on her, but she died.  In Ex.P5-
A.R.Copy of accused, the accused stated before P.W.9-Doctor that while he
burning the sugarcane leaves, he sustained burn injuries.  There is no delay in
preferring the complaint.

25. Upon analysis of evidence, it is clearly proved that since the
deceased was not brought TVS 50 from her parental home, the appellant/accused
got wild and he poured kerosene and set fire on her, which resulted to the death
of his wife Vijaya @ Jeeva.    So, we are of the opinion that the accused is
guilty under Section 304(B) IPC instead of 302 IPC.


26. In the result, the conviction of the appellant-accused U/s.302 IPC in
S.C.No.135/2006 dated 18.12.2006 on the file of Principal Sessions Judge,
Thanjavur is modified.  Appellant-accused is convicted U/s.304 (B) IPC and
sentenced to undergo 7 years R.I.  Conviction of the appellant-accused
U/s.498(A) IPC and the sentence and fine of Rs.5000/- imposed on him stand
confirmed and this appeal is partly allowed.

arul

To
1.The principal Sessions Judge,
  Tanjore

2.The learned District Munsif-cum-
     Judicial Magistrate,
  Bapanasam.

3.The Inspector of Police,
  Kabisthalam P.S.

4.The Additional Public Prosecutor,
  Madurai Bench of Madras High Court,
  Madurai.