Rajendran vs Commr. of Police

Rajendran & Anr. ......Appellants

Versus

State Asstt. Commnr. of Police Law & Order ......Respondent

With

CRIMINAL APPEAL NO. 1139 OF 2003

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. These two appeals are interlinked and have their matrix on a

judgment of the Madras High Court. By the impugned judgment the High

Court upheld the conviction of the accused persons for offence punishable

under Section 498(A) of the Indian Penal Code, 1860 (in short the `IPC').

1 Each was sentenced to undergo rigorous imprisonment for three years. The

conviction was imposed by learned Second Additional Sessions Judge,

Madras, and appeal was preferred by the appellants questioning conviction

and the sentence imposed. Originally, the accused persons were charge

sheeted and tried for offence punishable under Section 498A and 304 B

IPC. The Trial Court after considering the material on record acquitted the

appellants in respect of offence referred to Section 304 B and convicted

them for offence under Section 498A IPC.

2. Prosecution version in a nutshell is as follows:

Appellant-Rajendran, was married to Shanthi (hereinafter referred to

as the `deceased'). The other appellants are the parents of Rajendran. On

1.12.1989, the deceased Shanthi got married to appellant-Rajendran. Since

there was torture at the hands of the appellants, the deceased Shanthi

committed suicide on 7.3.1991 at 10.30 A.M. by setting fire on herself after

pouring kerosene.

On the complaint of Ganesan (PW-1), the father of the deceased, a

case was registered in Crime No. 99 of 1991 for suspicious death by the

Sub-Inspector of Police (P.W.9).

2 After examination of witnesses and recovery of material objects, the

Assistant Commissioner of Police (PW-11) filed a charge sheet before the

trial Court on 20.3.1992 for the offences under Section 498(A) and 304(B)

IPC.

During the course of trial, on the side of prosecution, P.Ws 1 to 11

were examined, Exs. P1 to P16 were filed and M.Os. 1 to 4 were marked.

The trial court on completion of trial, concluded that all the appellants

were guilty of offence under Section 498 A IPC and convicted and

sentenced them to undergo rigorous imprisonment for 3 years. Same was

challenged before the High Court.

The appellants in the appeal before the High Court submitted that in

the absence of any dying declaration or suicide note or any evidence relating

to dowry torture the trial court ought not to have convicted the appellants

for offence punishable under Section 498A IPC. It was also submitted that

since the appellants were acquitted of charge punishable under Section

304B IPC, consequentially the trial court ought to have acquitted the

appellants in respect of other offence. The High Court did not accept this

3 plea. It held that on going through the evidence of PWs. 1 & 2 it was clear

that there was no offence relating to dowry torture but there are materials to

show that deceased was being tortured by the appellants.

The High Court also referred to the evidence of independent witness

Dhanam (PW 3) who was a neighbour. She had specifically stated about the

ill-treatment by the appellants. The High Court, therefore, held that the

appellants were rightly convicted. The stand taken before the High Court

was reiterated in this appeal.

3. Learned counsel for the State on the other hand supported the

judgment.

4. One of the reasons for ill-treatment to the deceased was that the

deceased gave birth to a female child, which was considered to be

inauspicious and after the birth of the said female child, the Rajendran's

brother's wife died and the appellants thought that the birth of the said

female child was the reason for various debacles in the family and

consequently, she was tortured by the appellants.

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5. It is also clearly stated by P.W.1 that on 28.2.1991, PW-1 went to the

house of the appellants to take both the first appellant-Rajendran and the

deceased to attend a function at their 'Kula Theivam' temple. But the

appellants allowed only the deceased to go along with PW-1 to attend the

function. Admittedly, Rajendran did not accompany the deceased to the

function.

6. On 7.3.1991 at about 10.30 A.M., PW 2 the brother of the deceased,

took the deceased and left her in the house of the appellants. At that time,

the 3rd appellant abused her. After having pacified the deceased, PW2 came

back. Then at 12.30 PM, PW 1 received message from the first appellant

that the deceased Shanti was not well. At that time, the first appellant did

not inform him as to what really happened.

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 -

5 (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."

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 are 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. Substantive

Section 498A IPC and presumptive Section 113B of the Indian Evidence

Act, 1872 (in short `Evidence Act') have been inserted in the respective

statutes by Criminal Law (Second Amendment) Act, 1983. It is to be noted

that Sections 304B 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

304B there is no such explanation about the meaning of `cruelty'. But

6 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. Under Section 304B it is `dowry death' that is punishable and

such death should have occurred within seven years of marriage. No such

period is mentioned in Section 498A. A person charged and acquitted

under Section 304B can be convicted under Section 498A without that

charge being there, if such a case is made out. If the case is established,

there can be a conviction under both the sections. (See Akula Ravinder and

others v. The State of Andhra Pradesh (AIR 1991 SC 1142). Section 498A

IPC and Section 113B of the Evidence Act include in their amplitude past

events of cruelty. Period of operation of Section 113B of the Evidence Act

is seven years, presumption arises when a woman committed suicide within

a period of seven years from the date of marriage.

9. The above position was highlighted in Balwant Singh & Ors. v. State

of H.P. [2008(10) JT 589].

10. Section 498A IPC has two limbs. The first limb of Section 498A

provides that whoever, being the husband or the relative of the husband of a

woman, subjects such woman to cruelty shall be punished. `Cruelty' has

7 been defined in clause (a) of the Explanation to the said Section as any

willful conduct which is of such a nature as is likely to drive to a woman to

commit suicide. When there is demand of dowry, the case comes under

clause (b) of the Explanation to Section 498A. Clause (a) of the Explanation

has definite application to the facts of the present case. Additionally, effect

of Section 113 A of the Indian Evidence Act cannot be lost sight of.

11. Further as per Section 113 A of the Evidence Act when the question

as to whether 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 that such suicide had been abetted by

her husband or by such relative of her husband. This has not been rebutted

by the appellants.

12. Above being the position we find no merit in these appeals, which are

accordingly dismissed.

........................................J.

8 (Dr. ARIJIT PASAYAT)

........................................J. (Dr. MUKUNDAKAM SHARMA) New Delhi, December 2, 2008

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