Biju v. State of Kerala

This appeal has been filed by accused Nos.1 and 2 in S.C.No.613/2009 on the files of the Additional Sessions Court, Vatakara, Kozhikode challenging the judgment dated 09.11.2016 in the said case.

2. Heard the learned counsel for the appellants/accused 1 and 2 and the learned Public Prosecutor appearing for the prosecution. Perused the verdict impugned and the evidence available.

3. Here, consequent to the death of one Sheeba, daughter of PW2, on 11.10.2006, FIR was registered and thereafter, investigation was completed, which led to the filing of final report alleging commission of offences punishable under Sections 304B (now BNS 80) and 498A (now BNS 85, BNS 86) r/w 34 (now BNS 3(5)) of the Indian Penal Code (hereinafter referred to as ‘IPC’) by accused Nos.1 to 4. The allegation is that accused Nos.1 to 4 subjected Sheeba to mental and physical cruelty demanding more dowry and as a consequence of the said cruelty, she committed suicide.

4. Learned Sessions Judge, on completing the pre-trial formalities, started trial. During trial, PWs.1 to 21 were examined, Exts.P1 to P20 and MO1 were marked on the side of prosecution. DW1 was examined and Exts.D1 and D2 were marked on the side of the defence.

5. On a meticulous evaluation of the evidence, learned Sessions Judge found that accused Nos.1 and 2 had committed offences punishable under Sections 304B (now BNS 80) and 498A (now BNS 85, BNS 86) r/w 34 (now BNS 3(5)) of IPC while acquitting accused Nos.3 and 4. Accordingly, accused Nos.1 and 2 are sentenced as under:

“In the result, A1 and A2 are sentenced to undergo rigorous imprisonment for 7 (seven) years each u/s. 304B (now BNS 80) r/w 34 (now BNS 3(5)) IPC and they are also sentenced to undergo rigorous imprisonment for 3 (three) years each and pay fine of Rs.25,000/- (Rupees Twenty Five Thousand only) each u/s 498(A) (now BNS 84) r/w 34 (now BNS 3(5)) IPC. In default of payment of fine, rigorous imprisonment for further period of three months each. The period of imprisonment alone shall be run concurrently. Out of the fine amount realised from A1 and A2 Rs.20,000/- (Rupees Twenty Thousand only) each shall be paid to PW2 and PW3, the father and mother of victim, deceased Sheeba, as compensation u/s. 357(1) (now BNSS 395) Cr.P.C. A1 and A2 were in custody from 15/10/2006 to 22/12/2006. The period of remand of accused shall be set off u/s. 428 (now BNSS 468) Cr.P.C.”

6. Multifaceted contentions have been raised by the learned counsel for the appellants to contend that the learned Sessions Judge went wrong in finding that the appellants had committed offences punishable under Sections 304B (now BNS 80) and 498A (now BNS 85, BNS 86) r/w 34 (now BNS 3(5)) of IPC. The learned counsel took attention of this Court to the evidence tendered by PW2 to PW5, PW7 and PW8 to contend that their evidence in no way would suggest the ingredients for the offences found to be committed by the appellants/accused Nos.1 and 2. An argument note has also been placed by the learned counsel for the appellants in similar lines. The main contentions raised in the argument notes contained in paragraphs 8 to 24, 33 to 47 and 48 are extracted hereunder:

8. PW2 Narayanan is the father of the deceased. He was examined to prove the cruelty.PW2 in his chief examination deposed 6 instances which are reproduced below;

I. വിവാഹശേഷം 3 ദിവസം കഴിഞ്ഞ് ഞാനും അയൽക്കാരനായ സുരേഷും കൂടി പ്രതികളുടെ വീട്ടിൽ പോയി. അപ്പോൾ സ്വർണ്ണം പറഞ്ഞു എന്നെ ബുദ്ധിമുട്ടിക്കുന്നുണ്ട് എന്നു പറഞ്ഞു.A1, A2 ബുദ്ധിമുട്ടിക്കുന്നു എന്നാണ് പറഞ്ഞത്. 15 പവൻ സ്വർണ്ണം കൂടി വേണം എന്നാണ് പറഞ്ഞത്. സൽക്കാരത്തിന് ക്ഷണിക്കാനാണ് ഞാൻ പോയത്.10,17 ദിവസം കഴിഞ്ഞാണ് സൽക്കാരത്തിന് വന്നത്.

II. എന്റെ അളിയൻ സൽക്കാരത്തിന് ക്ഷണിച്ചിട്ട് അവർ പോയിരുന്നില്ല. സ്വർണ്ണം കുറഞ്ഞു പോയത് കൊണ്ടാണ് പോകാതിരുന്നത് എന്നാണ് പറഞ്ഞത്.

III. ഇടക്ക് ഞാൻ മകളെ കാണാൻ പോകുമായിരുന്നു.അപ്പോഴൊക്കെ സ്വർണ്ണം പോര എന്ന് പ്രതികൾ പറയുമായിരുന്നു.

IV. മകൾ ഗർഭിണിയായ സമയം. പ്രസവത്തിന് കൂട്ടാൻ പറയാൻ വേണ്ടി എന്റെ ഭാര്യയും മാധവന്റെ ഭാര്യയും പോയിരുന്നു എന്നാണ് ഓർമ്മ . 15 പവൻ സ്വർണ്ണം കൂടി തന്നാൽ മകളെ പറഞ്ഞയക്കാം എന്ന് A1,A2 എന്റെ ഭാര്യയോട് പറഞ്ഞു. (According to PW3- A1,A4 ആവശ്യപ്പെട്ടു).

V. ഷീബ വീട്ടിൽ വന്ന ശേഷം എന്റെ ഭാര്യയോടും എന്റെ ഇളയ മകളോടും A2 എന്നെ ശാരീരികമായും ലൈംഗികമായും ഉപദ്രവിച്ചിരുന്നു എന്ന് പറഞ്ഞിരുന്നു.(This is a material omission. Not stated before the Investigating Agency).

VI. ഷീബ മരിക്കുന്നതിന് മുൻപ് അവസാനമായി ഭാര്യയും മാധവന്റെ ഭാര്യയും എന്റെ ഇളയ മകളും പ്രതികളുടെ വീട്ടിൽ പോയിരുന്നു. മരിക്കുന്നതിന് 3,4 ദിവസം മുമ്പാണ് പോയത്. കുഞ്ഞിനെ കാണിച്ച് കൊടുത്തില്ല.

9. In the cross examination this witness deposed that on the very next day of the suicide the police questioned and recorded his statement. He further deposed that the statement of Madhavan, PW2 Chandrika, his son, CW4 and PW7 his daughter was recorded.

10. Regarding the first allegation the same is marked as a material omission. Even otherwise the same is proved to be false in the light of the evidence of PW3 who is none other than the wife of PW2. PW3 stated in the chief examination itself that- നാലാം ദിവസം ആയിരുന്നു എൻ്റെ വീട്ടിൽ സൽക്കാരം .According to PW2 after 3 days he went along with one Mr.Suresh to the house of the accused to invite them for salkaram. The said visit was only on the fourth day or after that. But PW3 categorically deposed that the deceased and others reached for salkaram on the 4th day itself. Moreover the person namely Suresh was neither cited as witness nor examined before the trial court.

11. The second and third allegations are general allegations against all accused.

12. With respect to the 4th allegation the same is contradictory to the evidence of PW3. First of all, PW2 has only hearsay information about the 3rd allegation. He gathered the said information from his wife. But PW3 who is the wife of PW2 has no case that she visited there along with Madhavan’s wife. Even though Madhavan’s wife was cited as a witness CW9, she was given up by the prosecution. Moreover according to PW3 all the accused demanded for gold ornaments (A1 to A4) before taking the deceased to her house on the 7th month of pregnancy. But PW2 deposed that A1 and A2 demanded gold ornaments. This information gathered by PW2 from PW3 is contradictory to the evidence of PW3.

13. With respect to the 5th allegation A2 was found not guilty. More over the 5th allegation against A2 was proved as a material omission.

14. With respect to the 6th allegation, the same is also a hearsay information as far as PW2 is concerned. This piece of evidence is totally contradictory to the evidence given by PW3.

15. PW3 -ചന്ദ്രി (Mother) – Incriminating evidence

I. ഷീബ കല്യാണം കഴിഞ്ഞു നാലാം ദിവസം വീട്ടിൽ വന്നിരുന്നു. ആ സമയം മകൾ സ്വർണ്ണം കുറഞ്ഞു പോയതായി പറയുന്നു എന്ന് പറഞ്ഞിരുന്നു.

This evidence is totally contradicting to the evidence of PW2. PW2 has no such case. According to PW2, father, he went to the house of the accused after three days for inviting Sheeba for “സൽക്കാരം” and she along with her husband reached the house after 10-17 days. Moreover the evidence itself is contradicting to her own version in cross പിന്നെ 10,17 ദിവസം കഴിഞ്ഞു ഷീബ സൽക്കാരത്തിന് വന്നിരുന്നു. ഷീബയും പ്രതിയും വന്നിരുന്നു. അന്നും സ്വർണ്ണം കുറഞ്ഞുപോയി എന്ന് പറഞ്ഞ് A1,A2,A4 ബുദ്ധിമുട്ടിക്കുന്നു എന്ന് മകൾ പറഞ്ഞു.The above answers elicited in the cross examination of PW3 would go to show that the allegation against the accused is absolutely false.

“According to PW2, there is only one “സൽക്കാരം”. But if the version of PW3 is believed there are two salkaram (reception).

II.പിന്നെ 10,17 ദിവസം കഴിഞ്ഞു ഷീബ സൽക്കാരത്തിന് വന്നിരുന്നു. ഷീബയും പ്രതിയും വന്നിരുന്നു. അന്നും സ്വർണ്ണം കുറഞ്ഞുപോയി എന്ന് പറഞ്ഞ് A1,A2,A4 ബുദ്ധിമുട്ടിക്കുന്നു എന്ന് മകൾ പറഞ്ഞു.

Here also, this piece of evidence is totally contradictory to the evidence of PW2. Firstly PW2 has no such case. PW2 has got a different version about the same. His evidence is that……….“10, 17 ദിവസം കഴിഞ്ഞാണ് സൽക്കാരത്തിന് വന്നത്. A1 ഉം ഷീബയും മാത്രമാണ് വന്നത്. ആ സമയം താലി ഒഴികെ ഞാൻ കൊടുത്ത ആഭരണം കണ്ടില്ല. ചോദിച്ച സമയം അവ പെങ്ങൾക്ക് വീട് വെക്കാൻ പണയം വച്ചു എന്നാണ് പറഞ്ഞത്”.

Moreover, the said piece of evidence is an omission.

III. പ്രസവത്തിന് 7ആം മാസം മകളെ കൂട്ടികൊണ്ട് വന്നിരുന്നു. അതിന് മുൻപ് സ്വർണ്ണത്തിന് A1 to A4 ആവശ്യപ്പെട്ടു.

This evidence also contradicting to the evidence of PW2. According to PW2, PW3 and PW5’s wife went to the house for taking the deceased to house when she was 7 month pregnant. PW3 has no case that she went there along with PW’5’s wife. Her case is that 15 sovereigns demanded by A1 to A4.

IV. പ്രസവത്തിന് വന്ന സമയം ഷീബ തന്നെ പ്രതികൾ ശാരീരികമായും മാനസികമായും പീഡിപ്പിക്കുന്നു എന്ന് പറഞ്ഞു. A2 വല്ലാതെ പീഡിപ്പിക്കുന്നു എന്ന് പറഞ്ഞു. With respect to this general allegation A2 was found not guilty. The said allegation is only an omnibus allegation

V. ഷീബ മരിക്കുന്നതിന് 3 ദിവസം മുമ്പ് ഞാനും ഇളയമകളും ആങ്ങളയുടെ ഭാര്യയും പോയിരുന്നു. കുട്ടിയെ എടുക്കാൻ വീടുകാർ സമ്മതിച്ചില്ല. ബാക്കി സ്വർണ്ണം തരാതെ ആരും വരണ്ട എന്ന് A1 പറഞ്ഞു. A1 ഷീബയെ മുറിയിൽ കൊണ്ടുപോയി വാതിലടച്ചു. ടി കാര്യം PW2 നോട് പറഞ്ഞു. A2 ഷീബയെ മുറിയിൽ നിന്നും പിടിച്ചു വലിച്ചു കൊണ്ട് വന്നു. ബ് ലൌസ് കീറി പുറത്ത് കല ഉണ്ട് എന്നും പറഞ്ഞു. കല ഞങ്ങൾ കണ്ടില്ല.

This evidence also highly contradicting to the evidence of PW2. As per his version, when PW3 along with her daughter and CW9 visited the house of the accused three days prior to the suicide, there was no demand for gold ornaments from anybody. He has got a different version about the same.

● PW3 categorically and clearly admits that Sheeba was sad as A3’s wife got 50 sovereigns.

● She further deposed in cross examination that 10-18 times she went to the house of accused to meet Sheeba.

● She further deposed that after delivery accused came to the house of the deceased and gifted gold ornaments to the child.

● According to her after delivery A1 reached the house several times to visit Sheeba and child.

● According to PW3, 4th day after death her statement was recorded by Investigating Officer. More over PW2’s statement was also recorded. According to her Shyju (PW8) was also present there.

16. PW4 is Jisna who is the wife of A3. It has come out from her evidence that she had gone to her house for delivery and that she did not return to the house of her husband as the information of the suicide of the deceased from the house took place. She has also stated that after delivery, not only the deceased and A1, but others also had visited her house and had given gifts to her child. It has further come out that it is only on the basis of the allegations levelled against the accused by the relatives of the deceased that her marriage also broke.

17. PW4 generally stated all accused used to say – സ്വർണം കുറഞ്ഞുപോയി സ്വർണം കുറഞ്ഞുപോയി എന്ന് പറഞ്ഞ് ഷീബയെ A1 അടിക്കുമായിരുന്നു.

18. Cross examination- The following answers are elicited

● Deceased asked her about her gold ornaments

● She decided to come back to the house of the accused when she was taken for delivery.

● But due to this case and allegations she decided not to come back.

● According to her, her knowledge with respect to the incident is as told by deceased. This is a material omission.

● She further deposed that, she did not witnessed any incident of cruelty.

● Her statement was recorded one week after death.

The above answers elicited in the cross examination would go to show that she has no direct knowledge about anything.

19. PW5 Madhavan is the maternal uncle of the deceased. His evidence regarding demand of gold ornaments and other incidents spoken to by PWs 2 to 4 are highly contradictory

20. PW5 stated in chief examination

പിന്നീട് ഞാൻ പ്രതികളുടെ വീട്ടിൽ പോയത് കല്യാണം കഴിഞ്ഞ് ഒരു മാസം കഴിഞ്ഞ് ഞാനും ഷീബയുടെ അച്ഛനും കൂടിയാണ്. സ്വർണം കുറഞ്ഞു എന്ന് പറഞ്ഞ് മകളെ ശല്യം ചെയ്യുന്നു എന്ന കാര്യം തിരക്കാം എന്ന് PW2 പറഞ്ഞ പ്രകാരമാണ് പോയത്. ആ കാര്യം A2 ആയി സംസാരിച്ചിരുന്നു. എല്ലാ A1 നോട് പറഞ്ഞാൽ മതി എന്ന് A2 പറഞ്ഞു. എന്തുകൊണ്ടാണ് സ്വർണ്ണം കുറച്ച് തന്നത് എന്ന് A2 ചോദിച്ചിരുന്നു. 50 പവൻ തന്നെ കിട്ടണം എന്ന് A1 പറഞ്ഞു. ഇതിൽ കൂടുതൽ തരാൻ കഴിയില്ല എന്ന് ഞാൻ പറഞ്ഞു. This evidence spoken to by PW5 is totally contradictory to the evidence of PW2. In fact PW2 has no such case as spoken to by PW5.Nobody has got a case that after one month PW2 and PW5 visited the house of the accused. Moreover this allegation is contradictory to the evidence of PW2 and PW3. PW2 generally stated that A1 and A2 demanded 15 sovereigns. PW3 stated that A1 to A4 demanded 15 sovereigns. But the evidence of PW5 is that A1 demanded 50 sovereigns. This evidence is mutually contradictory.

21. It is further pertinent to note that at the time inquest the case of PW5 was to the effect that 35 sovereigns was given at the time of marriage. This evidence is also totally contradictory to the evidence of PW2 and PW3.

22. PW6-Nanu is the witness who has proved the scene Mahazar Ext.P2.

23. PW7 – Shijina is the younger sister of the deceased. It is very strange and embarrassing to note that she has been examined for the purpose of proving the allegation against A2. She herself was made to admit in the chief examination itself that such an allegation was never divulged to the police when she was questioned and her statement was recorded. The prosecution kept silent during her chief examination regarding the allegations of 304B,498(A) etc. But in the cross examination, it has come out that the entire evidence spoken to by PW2 to 4 are utterly false.

24. It is pertinent to note that the entire allegation with respect to the demand of gold ornaments prior to taking Sheeba to her house in the month of April 2006 in connection with her pregnancy is proved to be false in the light of the evidence of PW7. According to PW2 and PW3 Sheeba was taken to her house when she was 7month pregnant in the month of April. For this purpose PW8 purchased gold ornaments in the month of April. But PW7 categorically deposed that Sheeba was taken to her house in the month of March. She deposed that “മാർച്ച് മാസം ഭര്ത്താവിൻ്റെ വീട്ടിൽ നിന്നും ഞങ്ങളുടെ വീട്ടിലേക്കു കൂട്ടികൊണ്ടു വന്നു.”

33. PW14 is Dr. Shirly Vasu, who is giving evidence stating that she had supervised the post mortem examination conducted by PW9 and further stating that she had occasion to see the corpus of the deceased. This evidence is tendered by her without any documents of any kind to show that she had supervised the post mortem examination. It is evident that she has been rendering a helping hand to the investigating agency as well as the prosecution to bring home the false allegations against the accused. It has come out in the cross examination of PW9 that PW14 was not present at the time of post mortem examination. Her evidence is not only contradictory to the evidence of PW9, but also on the basis of assumptions and presumptions which has no legal basis. The position and lie of the place of incident, the window, the seat of the window etc, were not taken into account by her at all.

34. PW15 – is Sheena, is said to be a neighbour of the house of the accused. She has not let in any evidence in favour of the prosecution. She has further stated that there was no room for any suspicion against the accused.

35. PW16- Madhusoodanan Nair T., S.I of Police, Vatakara, who has conducted the first investigation in the case and recorded the statements of CWs1,3, 8, 11 to 15 and 21.

36. According to PW-16, he recorded the statement of CW1, CW3, CW8, CW11 to CW15,CW3 was examined as PW3 (Mother) ,CW11 to CW13 and CW15 given up.CW14 is a Scene Mahazar witness he was examined as PW6.According PW16 he filed the report (Ext.P12) to incorporate S.304B on the basis of the 161 statement of CW3 and 11 to 15.

At this juncture the evidence of PW2 and PW3 are relevant.

• According to PW2….. “പോലീസ് 3 തവണ ചോദ്യം ചെയ്‌തു എന്നാണ് ഓർമ്മ. പുനരന്വേഷണ സമയം ഒരു തവണ ചോദ്യം ചെയ്തു. ഭാര്യയെ ചോദ്യം ചെയ്തിരുന്നു. ചോദ്യം ചെയ്തത് മരണപ്പെട്ടതിൻ്റെ പിറ്റേന്നാണ് എന്നാണ് ഓർമ്മ. കുറച്ച് ദിവസം കഴിഞ്ഞ് വീണ്ടും ചോദ്യം ചെയ്തു. ചോദ്യം ചെയ്തു സമയം മാധവൻ ഉണ്ടായിരുന്നു. മാധവനും ഭാര്യയും മകനും എന്റെ മകനും മകളും ഉണ്ടായിരുന്നു. അവരെ ചോദ്യം ചെയ്തിരുന്നു. സത്യസന്ധമായി മൊഴി പറഞ്ഞ് കൊടുത്തിരുന്നു.

According to PW3…. “മരണപ്പെട്ട 4 ആം ദിവസം വീട്ടിൽ വച്ച് മൊഴി എടുത്തു ഭർത്താവും ആങ്ങളയുടെ ഭാര്യയും ഉണ്ടായിരുന്നു. ആ സമയം എല്ലാവരുടെയും മൊഴി എടുത്തു. വായിച്ചു കേൾപ്പിച്ചു ശെരി ആണെന്ന് ബോധ്യപ്പെട്ടു. ചോദ്യം ചെയ്തു സമയം അയൽവാസികൾ ഉണ്ടായിരുന്നു. ഷൈജു, ഗോപാലൻ, ശശി തുടങ്ങിയവർ ഉണ്ടായിരുന്നു. ഷൈജു എസ്.എസ് ജ്വല്ലറിക്കാരനാണ്”.

37. At this juncture it is pertinent to note that PW8 Shyju has been introduced after 2 years as a planted witness. According to PW8 he has been questioned twice by the investigating agency. But his earlier 161 statement has been suppressed. The produced 161 statement was the statement recorded on 12/12/2008 that is the statement recorded after 26 months.

38. In fact PW16, the first investigating officer recorded the 161 statements of PW2,PW3,PW7 and PW8. All these statements were suppressed by the investigating agency.

39. The produced 161 statement of PW2 is that of statement recorded by PW17 on 07/11/2006, that is 28 days after the suicide (suicide was 11/10/2006).

40. But witnesses like PW2 and PW3 categorically deposed that they have been questioned immediately.

41. PW17 – K.R. Premachandran, the DySP Vatakara, who has investigated the case from 15/01/2006 onwards.

● He took over the investigation on 15/10/2006. He arrested A1 to A3.

● In fact PW16 and PW17 questioned and recorded the statement of PW1 to PW12. This has been clearly deposed by PW18 another DYSP who conducted part of the investigation.

42. PW18- K.S Gopakumar (DYSP) He clearly deposed that when he took over the investigation the 161 statements of CW1 to CW12 recorded by PW16 and PW17 were available in the case diary. What happened to that statement in the case diary is not known to anybody.

43. PW-19 P.P Sadanandan (DYSP) He started investigation on 06/02/2013. According to PW19 he recorded the 161 statements of CW1 to CW9 and it is on the basis of that statement he file Ext.P12 (Report) to add S.498A (now BNS 85, BNS 86), 354 (now BNS 74) and 306 (now BNS 108) IPC on 11/09/2013 that is after 7 years from the date of incident.But it is interesting to note that even though he recorded the 161 statement of CW1 to CW9, several statements of material witnesses were not produced. The list is as follows;

CW1- Sasi(PW1) – 161 statement not produced along with the charge sheet

CW2- Narayanan (PW2)- 161 statement not produced along with the charge sheet.

CW3- Chandri (PW3) – 161 statement not produced along with the charge sheet

CW4- Sreejesh (Given up by the prosecution) – 161 statement not produced along with the charge sheet.

CW5- Shijina(PW7) – 161 statement produced along with the charge sheet.

CW6- Jasna (PW4) – 161 statement produced along with the charge sheet. CW7 – Bhaskaran (Given up )

CW8 Madhavan (PW5) – 161 statement not produced along with the charge sheet.

CW9- Sanitha (Given up)

44. It is pertinent to note that the basis for filing Ext.P12 was the 161 statements of CW1 to CW9. But major portion of the 161 statements of the witnesses has been suppressed by the investigating agency.

45. Further, according to PW19 the 161 statements of CW2,CW4 to CW10 and CW12 recorded by PW16 were not seen produced before the court.

46. Likewise he further deposed that the 161 statements of CW1 and CW4 to CW12 recorded by PW17 was also not seen produced before the trial court.

47. PW-20 Deepesh Kumar Behra (ASP Vatakara) He conducted the investigation on 17/09/2009 onwards. According to him the 161 statements of CW1 to CW12 recorded by CW37 to CW41 were available in the case diary. At the time of his examination the produced 161 statements were confronted to this witnesses. According to him only the following statements have been produced before the court.

48. The accused has examined Dr. Rajagopalan as DW1 to prove that the deceased was treated by him for post partem Psychosis. The documents are marked as Ext. D1 & D2. It has also come out in the evidence of DW1 that the deceased was taken for treatment to DW1 by PW2 – Narayanan and A1.It is true that the deceased committed suicide by hanging on 11/10/2006. The marriage between A1 and the deceased had taken place on 28/08/2005. The marriage between A4 and PW4 Jesna had also taken place on 28/08/2005. In this connection, it is pertinent to not that there is absolutely no evidence available to show or to prove any unruly conduct on the part of the accused towards the deceased in any manner whatsoever. The answers elicited in the cross examination through the prosecution witnesses would also go to show that the relationship between the accused and their relatives on one side and the deceased and her relatives on the other side was more than Cordial. In fact, it is the evidence of PW3 Chandri who is none other than the mother of the deceased is to the effect the she had occasion to visit the house of the accused for meeting the deceased for about eighteen occasions within a short period. This itself would show the intensity of the relationship. Apart from this, even though the prosecution witnesses were trying to paint a grim picture of the relationship between the two families, it has come out in flying colours in the cross examination that A1 and the deceased were frequently visiting the house of the deceased and the neighbouring houses. When the child was born, as is the custom, an amount of Rs.5,000/- was paid by A1. It has also come out in evidence that ornaments were given by A1 to A4 to the new born baby. It has further come out in evidence that the accused along with the deceased had visited the house of PW4 Jesna for seeing her new born baby. It is also in evidence that sufficient present/gift was given to the new born baby.

49.PW4 Jesna was examined by the prosecution to prove that the accused were exhibiting an abnormal and violent conduct towards PW4 and the deceased.PW4 says that she was having 48 sovereigns of gold ornaments and the deceased having 24 sovereigns of gold ornaments. She has further stated that the accused were asking for more ornaments from both. It has come out in her evidence that after the unfortunate incident of hanging by the deceased from the house of the accused, her parents were not prepared to send her to that house. Pertinent questions were put to PW4 as to while going for delivery, she had taken a decision not to return to the house, her answer is in the negative. It has come out in evidence that but for the unfortunate incident, she would have returned to the house of the accused and would have continued to lead a normal life with A3.”

7. The contention raised by the learned counsel for the appellants is that this case was foisted by incorporating offences punishable under Sections 498A (now BNS 85, BNS 86) and 304B (now BNS 80) of IPC due to political rivalry, without producing the earlier Section 161 statements recorded as that of the witnesses which would not disclose the ingredients for the offences. According to the learned counsel for the appellants, going through the evidence of PWs.2 to 5, PW7 and PW8, their evidence not at all credible to be acted upon to find commission of the offences punishable under Sections 498A (now BNS 85, BNS 86) and 304B (now BNS 80) r/w 34 (now BNS 3(5)) of IPC by the accused nos.1 and 2 since the same are contradictory and mutually destructive. According to the learned counsel for the appellants, on evaluating the evidence let in by prosecution supported by the evidence of DW1, the appellants are entitled to get acquittal for want of proof of the offences beyond reasonable doubts, by enlarging the benefit of doubt.

8. Whereas, it is pointed out by the learned Public Prosecutor that, in the instant case, the evidence of PWs.2 to 5, PW7 and PW8 supported by the medical evidence as that of PW9 and PW14 would substantiate the prosecution allegations, and therefore, the learned Sessions Judge rightly entered into conviction for offences punishable under Sections 498A (now BNS 85, BNS 86) and 304B (now BNS 80) r/w 34 (now BNS 3(5)) of IPC and in such view of the matter, the verdict would not require interference.

9. Adverting to the rival contentions, the points arise for consideration are:

(i) Whether the Sessions Court is right in holding that the appellants/accused Nos.1 and 2 committed offence punishable under Section 304B (now BNS 80) r/w 34 (now BNS 3(5)) of IPC?

(ii) Whether the Sessions Court erred in holding that the appellants/accused Nos.1 and 2 committed the offence punishable under Section 498A (now BNS 85, BNS 86) r/w 34 (now BNS 3(5)) of IPC?

(iii) Whether the verdict would require interference?

(iv) The order to be passed?

Point Nos.(i) to (iv)

10. In order to address these contentions, evaluation of the evidence is necessary. PW1 examined in this case is T.M. Sasi, who is a neighbour of the accused. He had lodged Ext.P1 FIS, which led to the registration of this crime. His evidence is that Sheeba, wife of the first accused, committed suicide at about 1 p.m. on 11.10.2006 and he knew about the same on hearing cry from the house. According to him, he, along with four persons, reached the house and found Sheeba lying on the lap of the second accused and the first accused was not present there though accused Nos.2 to 4 were present there. According to him, accused Nos.2 to 4 are father, brother and mother of the first accused. All of them laid Sheeba on a cot, and at that time, she was unconscious. Then the first accused reached the house and brought an autorickshaw and took her to the hospital along with accused Nos. 2 and 4. Then he added that he did not remember whether it was accused No. 1 or 3 went to the hospital. Though Sheeba reached the Government Hospital, the doctor did not see her; since she died by the time. He admitted Ext.P1 statement in this regard. In fact, PW1 is the person who had no direct knowledge regarding the occurrence or the acts of cruelty, if any, suffered by the victim.

11. PW2 examined in this case is Narayanan, who is the father of the deceased, Sheeba. In paragraph Nos. 16 to 20, the learned Sessions Judge extracted the evidence of PWs.2 to 8 which are as under:

“16. To prove the alleged case against accused the prosecution is mainly relied upon the testimonies of PWs 2, 3, 4, 5, 7 and 8. PWs 1, 6 and 15 are the neighbours of accused and they had not seen the incident. PW1 would swear that on hearing hue and cry from the house of accused he rushed to there and he heard the breaking sound of door and he saw Sheeba lying on the lap of A2 and A3 has cut and removed shawl from the neck of Sheeba and A4 was crying. Further swear that at that time A3 was not available in the house and Sheeba was found to be breathing. Then A3 came there and Sheeba was taken to Government Hospital Vatakara in an Autorickshaw and he had also went to the Hospital. Then the doctor after examined Sheeba, informed that she was expired. PW1 has given Ext.P1, F.I.S. to the police regarding this incident. PW13 has registered Ext.P1(a) F.I.R. on the basis of information given by PW1 under the caption, unnatural death. So PW1 has not witnessed any harassment alleged to be caused to deceased Sheeba. PW6 has attested the Ext.P2, scene mahazar. He had also not seen the alleged incident. PW15 has not deposed anything regarding the alleged harassment. So the evidence tendered by PWs 1, 6 and 15 will not help the prosecution to improve the alleged cruelty and harassment subjected to deceased Sheeba at matrimonial house.

17. The evidence of PW2 would show that at time of marriage and proposal of marriage there was no demand for dowry. He had provided 19½ sovereigns of gold ornaments to deceased Sheeba at the time of her marriage. After three days of marriage he had visited the matrimonial house with his neighbour namely Suresh for inviting them ‘Salkaram’. At that time Sheeba told him that A1 and A2 harassed her by demanding 15 sovereigns of gold more. Then after 10-15 days A1 and Sheeba came to his house for ‘Salkaram’ and at that time he had not seen any ornaments provided to her except ‘Tali’. PW1 further swear that his brother-in-law, PW5 went to the house of accused for invite them for ‘Salkaram’, but they did not visit his house because of scarcity of gold provided. Further swear that PW1 went to the house of accused with PW5 and talk the matter with them at that time also accused had made demand more gold ornaments. Further swear that when Sheeba became pregnant PW3 and wife of PW5 had been visited the house of accused and at that time also A1 and A2 had made demand 15 sovereigns of gold ornaments and told that they will not send Sheeba to her house if the above said gold ornaments were not provided. Then PW2 has purchased three bangles of gold having four sovereigns for amount of Rs. 34,000/- from S.S. Jewellery and provided to them. Thereafter he has brought Sheeba to his house for delivery.

18. PW3 has adduced evidence in the same line that of PW2 and she further deposed that when she went to the house of accused with wife of PW5 and PW7 before three days of death of Sheeba the accused refused to see the baby and A1 told that nobody need to visit their house without giving gold ornaments. Then A1 has put deceased Sheeba in a room and closed. Then A2 has dragged out Sheeba from the room and toned her blouse and said that there is scar of enchantment done at her house. But PW3 does not see any scar on her back as he said. Therefor the evidence PW3 also clearly shows that the accused, particularly A1 and A2 mentally and physically harassed deceased Sheeba at their house.

19. PW5 has also adduced evidence in the same line that of PW2 and PW3. He would swear that he had visited the matrimonial house to enquire about harassment caused to Sheeba due to scarcity of gold ornaments and he had discussed the matter with A2. And at that time A2 told about the scarcity of gold provided at the time of marriage. He further swear that five sovereigns of gold ornaments provided to Sheeba from his house as gift at the time of her marriage. PW10, Tahsildar has recorded the statement of PW5 at the time of preparation of inquest of deceased Sheeba, at Government Hospital, Vatakara. At that time also, PW5 has stated to the Tahsildar that deceased Sheeba had been subjected harassment for gold at the matrimonial house. In cross examination PW5 has deposed that 35 sovereigns of gold ornaments were provided to deceased Sheeba at the time of marriage. It is come out in evidence that the gold ornaments provided to deceased Sheeba was 24½ sovereigns including five sovereigns of gold ornaments provided by PW5. So the testimony of PW5 that she was provided 35 sovereigns is not correct. PW5 being an uncle of the deceased he may not have exact knowledge regarding sovereigns of gold ornaments provided at the time of marrige. In my view that is not the reason to disbelieve entire evidence of PW5. So the evidence of PW5 also disclosed that Sheeba was subjected to harassment for gold ornaments by accused.

20. PW4 was the wife of A3. At the time of incident she was residing in the matrimonial house along with accused. She has adduced evidence in the same line that there was harassment by demanding gold ornaments at the matrimonial house. She further deposed that A1 had assaulted deceased Sheeba by saying scarcity of gold. But in cross examination she deposed that she had not seen A1 assaulted Sheeba. According to her she has hear say knowledge about that fact from deceased Sheeba. Accused have a case that at the time of marriage PW4 was provided 48 sovereigns of gold ornaments and Sheeba had some inferiority complex in providing less ornaments to her. But PW4 in cross examination has denied that fact and she told that deceased Sheeba had 24 sovereigns of gold ornaments and she had no such inferiority complex. So the evidence of PW4 also supported the prosecution case that Sheeba was caused to harassment at matrimonial house. PW7 who is the sister of deceased Sheeba has adduced evidence to the effect that when the deceased Sheeba came to her house for Salkaram and brought her for delivery, told about the harassment she had subjected at matrimonial house. In corroborate with testimonies of PWs 2 and 3, PW8 who is associate with S.S. Jewellery has deposed that PW2 has purchased four sovereigns of gold ornaments worth Rs.34,000/- from S.S. Jewellery on April 2006 to provide his daughter. Therefore the evidence of PWs 2 and 3 that they had purchased four sovereigns of gold ornaments before deceased Sheeba brought for delivery is supported by the evidence of PW8. So on going through the testimonies of PWs 2, 3, 4, 5 and 7, I find no material dent to disbelieve their testimony regarding the harassment caused to deceased Sheeba at matrimonial house by accused especially A1 and A2.”

12. In this case, pursuant to the death of Sheeba on 11.10.2006, an autopsy on her body was conducted by PW9, the Medical Officer, Department of Forensic Medicine, Medical College Hospital, Kozhikode, who gave evidence in support of the postmortem certificate issued by him, and Ext. P3 postmortem certificate was tendered in evidence through him. . On his examination, he had deposed in support of Ext.P3 and the following injuries were noted by him:

“1) A pressure abrasion 22×2-0.8 cm, oblique, discontinuous on the back of neck, is seen around the sides and front of neck. The base of the pressure abrasion is brownish parchmented over the right half of neck and wider over the right half. On the left half, the pressure abrasion seen as two thin bands each 0.5 cm thick, separated by a thin band of normal looking skin. The left end of the pressure abrasion is placed 6cm below and 3cm front of the external occipital protuberance. The pressure abrasion then descends to the left side of neck where the upper extent is placed 4cm below the left mastoid process, descending further where the upper extent is placed 3cm below the left angle of mandible. There as it goes to the front of neck, the pressure abrasion starts a gradual ascent and at front midline of neck, the lower extent of the pressure abrasion passes above the level of the thyroid cartilage and is placed 8cm above the jugular notch. Thereafter the pressure abrasion continues to ascend to the right side of neck when the upper extent is placed 0.5cm below the right angle of mandible and the right end of the pressure abrasion is placed 2cm behind and at the level of the right angle of mandible. There is a gap of 17cm between the two ends of the pressure abrasion. The circumference of the neck measured 34cm, just below the level of the pressure abrasion.

2). A spot of pressure abrasion 0.3×0.2cm was seen on the under aspect of the right half of lower jaw 1.5cm in front of the right half of the pressure abrasion.

3). Contused abrasion (fresh) 0.5×0.5 cm each seen on both sides of the top aspect of the lower lip, immediately posterior to the mucocutaneous junction (inner aspects of lips – see external findings.) . Fine contused abrasion (fresh), red in colour, seen involving the entire length of the lower lip.

4). Contusion (fresh) 4×1-0.5 cm partial scalp thickness (not involving the pericranium) slightly raised above skin surface, red in colour, obliquely placed over the middle of forehead, upper right end 3 cm above inner end of right eyebrow and 1.5cm outer to midline and lower left end 1.5cm above the inner end of left eyebrow and 2cm outer to midline.

5). Two old healed scars 0.3×0.3cm and 0.2×0.2cm size over the middle of the neck in the neck fold.

6). Fine pin-point size abrasion, scab formed, over an area 12x7cm on the front and inner side aspect of the right arm, lower extent 2.5cm above Elbow.

7). Superficial contusion (fresh) 1.5x1cm, red in colour on the back aspect of the right forearm, 6cm above wrist.

8). Superficial contusion (fresh) 1.5x1cm (red) on the front aspect of the left arm 8cm axilla.

9). Superficial contusion (fresh) 2×0.5cm (horizontally placed) (red) on the front and outer side aspect of the left arm, at the same level on the upper end of previous injury.

10. Superficial contusion (fresh) 0.1×0.1cm (red) on the front aspect of the right leg,3cm below knee.

11. Abrasion (fresh) 0.1×0.1cm on the back chest at midline, 12cm below root of neck.

12. Infiltration of blood into the fibres of the pelvic diaphragm (fresh), the two slings of the puborectalis muscles, more on the left, with a few areas of ruptured fibres of the pelvic diaphragm seen behind the rectum, in front of the sacral promontory.

13. Scattered areas of contusion on the top surface of liver and “fluffy” haemorrhages on the undersurface of both lungs (over areas adjoining the diaphragm).”

13. Now the question that falls for consideration is whether the evidence of PWs.2 to 5, PW7 and PW8 supported by the medical evidence as that of PW9 and PW14 sufficiently prove the ingredients for the offences punishable under Sections 498A (now BNS 85, BNS 86) as well as 304B of IPC. Another question arises is whether Sheeba committed suicide due to postpartum phychosis as opined by DW1 who had occasion to treat her for the disease.

14. Here, appellants raised a contention before the trial court that Sheeba suffered ‘postpartum psychosis’ after her delivery and the depressive episodes of psychotic symptoms led her to commit suicide. In order to substantiate the said case, DW1, Dr. Rajagopalan K.K, was examined on the side of defence and Ext.D1 was let in evidence. DW1 deposed that on the date of his examination, he had been working as Psychiatrist in District Mental Health Programme, Kannur district and he had qualifications viz, MBBS, D.P.M (Diploma in Psychological Medicine). According to him, he had served as the Consultant Psychiatrist in Mental Hospital, Kozhikode from 2000-2005 and also doing the same job in various other hospitals, after retirement, including Co-operative Hospital, Kannur and also in connection with the Mental Health Programmes. His evidence is that, Ext.D1 is the document showing treatment of Sheeba by him. According to him, on 04.09.2006, Narayanan, father of Sheeba and Biju, husband of Sheeba, brought her before him. He deposed further that ‘postpartum psychosis’ was the disease to her, when he had examined Sheeba, one year after the marriage having a child aged 2½ months. Loss of sleep, unhappiness, fear, no interest in taking food, and crying are the symptoms he noted and based on which, he found her disease as ‘postpartum psychosis’. DW1 specifically deposed that persons with severe postpartum psychosis are having tendency to commit suicide and also inclination to kill children. He deposed further that the patients of this stature, if not given proper treatment, their condition would become very severe. He also deposed about the medicines given to her as Andideep-25 mg, Sizodon-1 mg, tabile lorel-2 mg for treatment. According to him, she was advised to meet him after one month. But, she did not come back. Then, on 01.01.2007, Biju and his father met him and asked for a certificate informing him that Sheeba committed suicide on 11.10.2006 in her husband’s house. Accordingly, he had issued Ext.D1 certificate dated 01.01.2007. He also deposed that in Ext.D1, some entries were made on the reverse side and the same is marked as Ext.D2.

15. According to him, patients with postpartum psychosis may have extreme mood swings and hallucinations apart from depression and delusion. He deposed further that, 1/500 ladies may show this disease, after pregnancy. It may either be mild or severe. He also deposed that, they should take medicines to reduce the same and only after reviews, the variations could be assessed. According to him, he used to prepare reports regarding the patients treated by him and, in that regard, he had prepared Ext.D1. During cross-examination, he stated that he did not state the name of the deceased in Ext.D1. It is true that Exts.D1 and D2 are documents issued by the doctor only on 01.01.2007, after the death of Sheeba. But the evidence of DW1 supported by Ext.D1 showing postpartum psychosis is a matter to be considered while weighing the reasons for committal of suicide by Sheeba, as there is no reason for DW1 to tell lie before the Court.

16. In the decision reported in Ajayakumar and Another v. State of Kerala (2022 KHC OnLine 596), in paragraph nos. 17 to 32, this Court considered the essential ingredients necessary to constitute an offence punishable under Section 304B (now BNS 80) of IPC and held as under:

“17. Before addressing the question as to whether the findings entered into by the trial court is justifiable, it is worthwhile to discuss the essentials required to constitute offences under Section 304B (now BNS 80) as well as 306 of I.P.C. Section 304 (now BNS 105) of I.P.C. deals with dowry death. Section 304B (now BNS 80) of I.P.C. is extracted hereunder:

“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.”

18. Thus the ingredients to constitute an offence under Section 304B are:

(a) There was an unnatural death of a woman;

(b) that woman had been married within 7 years preceding her aforesaid unnatural death, and

(c) soon before her death she was subjected to cruelty or harassment. Again

(i) such cruelty or harassment had been caused to her by her husband or husband’s other relative;

(ii) that such cruelty or harassment was for or in connection with any demand for dowry.

In all dowry death cases the standard of appreciation of evidence has to be in the light of the provisions contained in Section 113A (now BSA 117) of the Evidence Act.

19. It is relevant to note that when an offence under Section 304B (now BNS 80) of I.P.C. is alleged, the same has a proximate nexus with Section 113B (now BSA 118) of the Evidence Act, 1872 which reads as follows:

“Section 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 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 304B of the Indian Penal Code (45 of 1860).”

20. Section 113B (now BSA 118) of the Evidence Act in the later part mandates drawing of presumptions that the husband or relative of the husband of the victim girl have caused her death and this presumption of dowry death corresponds to presumption as to dowry death envisaged in Section 113B (now BSA 118) of the Evidence Act, 1872. Section 304B(1) (now BNS 80) of the I.P.C., 1860 has 2 limbs. First limb defines dowry death and the second limb deals with the legal consequence of occurrence of dowry death namely, that the husband or such other relative of the husband who soon before the death of the lady was found to have subjected the lady to cruelty or harassment shall conclusively be held to be guilty of the offence of dowry death. In the decision reported in [2015 (8) Scale 270 : AIR 2015 SC 3043 : 2015 Crl.J 4021 (SC)], V.K. Mishra v. State of Uttarakhand, a 3 Judge Bench of the Apex Court while dealing with Section 304B (now BNS 80) of IPC and 113B of the Evidence Act, inter alia, held, after referring another decision reported in [AIR 2015 SC 980], Shersing alias Partapa v. State of Haryana that the word ‘shown’ instead of ‘proved’ in Section 304B (now BNS 80) of I.P.C. indicates that the onus cast on the prosecution would stand satisfied on the anvil of a mere preponderance of probability. In other words, ‘shown’ would have to be read upon to mean ‘proved’, but only to the extent of preponderance of probability. It was held further that in a case of demand for dowry, independent and direct evidence with regard to the occurrence is ordinarily not available. That is why the legislature had introduced Section 113A and 113B in the Evidence Act by permitting presumptions to be raised in certain circumstances.

21. In another decision of the Apex Court reported in [AIR 2016 SC 5313 : 2016 KHC 6768] Baijnath & Ors. v. State of Madhya Pradesh, the Apex Court considered the legislative mandate to invoke the presumption under Section 113B (now BSA 118) of the Evidence Act and held as under:

“33. A conjoint reading of these three provisions, thus predicate the burden of the prosecution to unassailably substantiate the ingredients of the two offences by direct and convincing evidence so as to avail the presumption engrafted in S. 113B of the Act against the accused. Proof of cruelty or harassment by the husband or her relative or the person charged is thus the sine qua non to inspirit the statutory presumption, to draw the person charged within the coils thereof. If the prosecution fails to demonstrate by cogent coherent and persuasive evidence to prove such fact, the person accused of either of the above referred offences cannot be held guilty by taking refuge only of the presumption to cover up the shortfall in proof.

34. The legislative premature of relieving the prosecution of the rigour of the proof of the often practically inaccessible recesses of life within the guarded confines of a matrimonial home and of replenishing the consequential void, by according a presumption against the person charged, cannot be overeased to gloss – over and condone its failure to prove credibly, the basic facts enumerated in the Sections involved, lest justice is the casualty.

35. This Court while often dwelling on the scope and purport of S. 304B of the Code and S. 113B of the Act have propounded that the presumption is contingent on the fact that the prosecution first spell out the ingredients of the offence of S. 304B as in Shindo Alias Sawinder Kaur and another Vs. State of Punjab – 2011 (11) SCC 517 and echoed in Rajeev Kumar Vs. State of Haryana – 2013 (16) SCC 640. In the latter pronouncement, this Court propounded that one of the essential ingredients of dowry death under S. 304B of the Code is that the accused must have subjected the woman to cruelty in connection with demand for dowry soon before her death and that this ingredient has to be proved by the prosecution beyond reasonable doubt and only then the Court will presume that the accused has committed the offence of dowry death under S. 113B of the Act. It referred to with approval, the earlier decision of this Court in K. Prema S. Rao v. Yadla Srinivasa Rao – 2003 (1) SCC 217 to the effect that to attract the provision of S. 304B of the Code, one of the main ingredients of the offence which is required to be established is that “soon before her death” she was subjected to cruelty and harassment “in connection with the demand for dowry”.

22. Similarly, in another decision reported in [AIR 2014 SC 227 : 2013 (13) Scale 410], Rajeev Kumar v. State of Haryana, the Hon’ble Supreme Court referred another decision reported in [AIR 2003 SC 11], K. Prema S. Rao & anr. v. Yadla Srinivasa Rao & ors. and held as under:

“One of the main ingredients of the offence of dowry death under section 304B of the Indian Penal Code, 1860 which is required to be established is that “soon before the death” the accused must have subjected a woman to cruelty in connection with demand of dowry.”

23. In the decision reported in [2015 SC 1359], Rajinder Singh v. State of Punjab, the Apex Court held that “soon before” in Section 304B, is not synonymous with “immediately before”. The same proposition is laid by the Apex Court in another decision reported in [AIR 2021 SC 2627 : 2021 KHC 6284], Satbir Singh & anr. v. State of Haryana.

24. In the decision reported in [AIR 2004 SC 1714], Baljeet Singh v. State of Haryana the Apex Court set out the condition precedent for establishing offence under Section 304B (now BNS 80) of I.P.C. as under:

a) That a married woman had died otherwise than under normal circumstances;

b) such death was within 7 years of her marriage; and

c) the prosecution has established that there was cruelty and harassment in connection with the demand for dowry soon before her death.

25. In another decision reported in [AIR 2009 SC 913], Baldev Singh v. State of Punjab the expression “soon before her death” used in the substantive section of 304B of I.P.C. and Section 113B (now BSA 118) of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression “soon before” is not defined. A reference to expression “soon before” in Section 114 (now BSA 119) illustration (a) of the Evidence Act is relevant. It lays down that a man who is in the possession of goods “soon after theft” is either the thief or has received the goods knowing the same to be stolen, unless he can account for his possession. The determination of the period which can come with the term ‘soon before’ is left to be determined by the courts depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression “soon before” would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question.

26. In the same decision, in para. 17 it was observed as under:

“The law on Section 304B (now BNS 80) IPC and Section 113B (now BSA 118) of the Evidence Act has been pithily summarised as follows:

(1) Section 304B (now BNS 80) IPC must be interpreted keeping in mind the legislative intent to curb the social evil of bride burning and dowry demand.

(2) The prosecution must at first establish the existence of the necessary ingredients for constituting an offence under Section 304B (now BNS 80) IPC. Once these ingredients are satisfied, the rebuttable presumption of casualty, provided under Section 113B (now BSA 118) of the Evidence Act operates against the accused.

(3) The phrase “soon before” as appearing in Section 304B (now BNS 80) IPC cannot be construed to mean “immediately before”. The prosecution must establish existence of “proximate and live link” between the dowry death and cruelty or harassment for dowry demand by the husband or his relatives.

(4) Section 304B (now BNS 80) IPC does not take a pigeonhole approach in categorising death as homicidal or suicidal or accidental. The reason for such non-categorisation is due to the fact that death occurring “otherwise than under normal circumstances” can, in cases, be homicidal or suicidal or accidental.”

27. In the said judgment while confirming the conviction imposed by the trial court and the High Court under Section 304B and under Section 498A (now BNS 85, BNS 86) of I.P.C., the Apex Court also upheld acquittal found by the High Court under Section 306 (now BNS 108) of I.P.C.

28. In another decision reported in [2022 Cri.LJ 2545 : AIR OnLine 2022 SC 577], Devender Singh and Ors. v. State of Uttarakhand, another 3 Bench decision, the Apex Court considered the ingredients of Section 304B (now BNS 80) of I.P.C. within the ambit of Section 113B (now BSA 118) of the Evidence Act and finally confirmed conviction imposed against the husband under Section 304B (now BNS 80) of I.P.C. while acquitting appellants 2 and 3 on the finding that there is no specific role with regard to the demand of dowry and nor any specific instances of cruelty and harassment been ascribed to the appellants 2 and 3 except for the general assertion against appellants 2 and 3.

29. In a latest decision of the Apex Court reported in [ (2022) 5 SCC 401], State of Madhya Pradesh v. Jogendra & anr., 3 Bench of the Apex Court considered the menace of dowry death while dealing with a case alleging commission of offences under Section 304B (now BNS 80), 498A (now BNS 85, BNS 86) and Section 306 (now BNS 108) of I.P.C. In the said case also the Apex Court in para. 9 set forth the following as the most fundamental constituent for attracting the provisions of Section 304B (now BNS 80) of I.P.C.

(i) that the death of a woman must have been caused by burns or bodily injury or occurred otherwise than under normal circumstance;

(ii) that such a death must have occurred within a period of seven years of her marriage;

(iii) that the woman must have been subjected to cruelty or harassment at the hands of her husband, soon before her death; and

(iv) that such a cruelty or harassment must have been for or related to any demand for dowry.

30. Thus when the four essentials required to prove offence under Section 304B, viz; (i) death of a woman should have occurred otherwise than under normal circumstances (ii) within 7 years of her marriage; (iii) soon before her death she should have been subjected to cruelty or harassment by the accused, and (iv) in connection with any demand for dowry to presume that the accused has committed dowry death.

31. Once the prosecution succeeded in establishing that the death of the lady was the outcome of cruelty or harassment by her husband or any relative of her husband soon before her death within a period of 7 years of her marriage, if the accused wants protection from the said catch, the burden is on him to disprove and if he fails to rebut the presumption under Section 113B (now BSA 118) of the Evidence Act, the court is bound to act on it. To put it differently, Section 113B (now BSA 118) of the Evidence Act, casts a reverse burden on the accused to disprove the prosecution case. Then the question is; what is the standard of proof in cases involving reverse burden? The Apex Court considered the same in the decision reported in [ (2008) 16 SCC 417 : 2008 KHC 5054], Noor Aga v. State of Punjab & anr., while interpreting the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985, wherein also a reverse burden is cast upon the accused. In this judgment, the Apex Court considered the draconian provisions in the NDPS Act and it was held that though the Act contains draconian provisions, it must, however be borne in mind that the Act was enacted having regard to the mandate contained in international conventions on narcotic drugs and psychotropic substances. Only because the burden of proof under certain circumstances is placed on the accused, the same, by itself, would not render the impugned provisions unconstitutional. It was concluded in the said judgment that Sections 35 and 54 are not ultra-vires the Constitution of India and ultimately it has been held that the constitutionality of a penal provision placing burden of proof on the accused must be tested on the anvil of the State’s responsibility to protect innocent citizens. Even then, an initial burden exists upon the prosecution and only when it stands satisfied, the reverse burden would arise and the standard of proof required to prove the guilt of the accused on the prosecution is ‘beyond all reasonable doubt’. But it is ‘preponderance of probabilities’ on the accused. Thus the law is clear on the point that proof of reverse burden shall be discharged on the basis of ‘preponderance of probabilities’.

32. In the decision reported in [AIR 2001 SCC 2828], Satwir Singh v. State of Punjab, the Apex Court considered the meaning of dowry and it was held that some customary payment in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of “dowry”. Hence, the dowry mentioned in Section 304B should be any property or valuable security given or agreed to be given in connection with the marriage.”

17. Here, as already extracted, when PW2 reached the house of accused Nos. 1 and 2 on the third day of the marriage, Sheeba informed him about certain difficulties arising out of the demand for gold ornaments and the further demand for 15 sovereigns of gold. He also stated in his evidence that, whenever he used to meet his mother at the matrimonial home, they would say that the gold was insufficient. It was further deposed that, when they demanded that Sheeba be sent back for delivery, they also demanded 15 sovereigns of gold ornaments for the same. Here, the evidence of PW2 does not disclose any instance of mental or physical cruelty in any other form, apart from the demand for 15 sovereigns of gold ornaments.

18. It is strange to note that even when PW2 and his family requested that Sheeba be sent back for delivery, the accused demanded 15 sovereigns of gold, which appears to be unusual. Commonly when demand for more gold ornaments or dowry is not heeded, the immediate response should be to send the wife back to her house. It is true that PW3, the mother of Sheeba also deposed that, on the 3rd day, when she reached her house from the matrimonial home, also she had stated that gold was insufficient as stated by the husband’s family. She further stated that, after 10–15 days, when Sheeba returned to her house, she again reiterated the insufficiency of gold and the harassment allegedly caused to her by accused Nos. 1, 2 and 4. PW2 and PW3 had a case that before three days of the death of Sheeba, when they reached the matrimonial home, they were not permitted to hold the child unless the remaining gold was given. The second accused caught hold of Sheeba and tore her blouse and spoke about a mark (കല) on her back.

19. According to PW5, after one month of the marriage, he, along with PW2, reached the matrimonial home, where he was informed that the appellants were harassing Sheeba on the ground of insufficiency of gold. According to him, the second accused asked why the gold ornaments had been reduced and demanded 50 sovereigns of gold. However, the evidence of PW1, PW2 and PW3 was to the effect that the additional gold ornaments demanded were 15 sovereigns, whereas, according to PW5, the demand was for 50 sovereigns.

20. In this case, during the month of March, Sheeba was taken to the house of PW2 and PW3 i.e. her own home for delivery as deposed by PW2, PW3 and PW7. It is relevant to note that they also given evidence that Sheeba was brought to her house during the 7th month as usual, for delivery. According to PW3, she reached the matrimonial home 10 – 18 times during the pregnancy of Sheeba and that Sheeba had delivered a matured child. She further deposed that Rs.5,000/- was given by the first accused towards the expenses of the child. As could be seen from the available evidence that before taking Sheeba to her house for delivery, she had resided along with the first accused and other accused at the matrimonial home. She also deposed that after the return of Sheeba for the purpose of delivery in the 7th month, the first accused brought her back to the matrimonial home to facilitate their living together. But, according to PW2, it was done to do the work of the home.

21. Here comes the significance of the relevant aspect, that is to say, if a wife would be subjected to cruelty in any form, she usually would hesitate to go back to the matrimonial home by relinquishing her advantage to remain in her own house. Only when the husband is so affectionate and merciful to the wife, she may go back to the matrimonial home without staying in her own house, awaiting delivery.

22. It is relevant to note further that as argued by the learned counsel for the appellants, in this case, as deposed by PW2, his statements were recorded by the police three times. According to PW3, her statement was recorded by the police on the date of death itself. But, according to the learned counsel, the above statements were not produced by the Investigating Officer and 161 statements of PW2, PW3, PW7 and PW8 earlier recorded were suppressed by the Investigating Officer. PW17 investigated the case from 15.10.2006 onwards. Similarly, PW18 also investigated this crime before it was investigated by PW19 on 06.02.2013. It was only on 11.09.2013, Ext.P12 report was filed by PW19 incorporating offences under Sections 354 (now BNS 74), 498A (now BNS 85, BNS 86) and 306 (now BNS 108) of IPC. Thus, it could be seen that many previous statements were not made available to the accused so as to make the same to contradict the makers thereof, to elicit the truth of the allegations.

23. It is true that when a wife dies at the matrimonial home, direct evidence to establish the acts of cruelty may not be available. Therefore, the attending circumstances, in the form of circumstantial evidence and certain overt acts during their married life, in the form of direct evidence available, to be considered to ascertain whether the allegations of cruelty demanding more dowry to be found. At the same time, when two views are possible on the basis of the evidence available, the view favourable to the accused has to be adopted in the interest of justice, particularly when the prosecution case is not fully free from doubts.

24. On evaluation of the incriminating materials spoken by PWs.2 to 5, PW7 and PW8, the demand for more gold and creation of hazards, without disclosing what mode of hazards in the form of a bald allegations spoken by them. Then the overt acts of cruelty are confined to mere general allegations without pointing out anything in detail. At the same time, the intimacy between Sheeba and the first accused is discernible as already discussed. Similarly, the evidence let in by DW1 supported by Ext.D1 would show medical consultation of Sheeba on 04.09.2006 with postpartum psychosis when she was brought back to the matrimonial home, after the delivery along with the child. Thus whether Sheeba committed suicide due to postpartum psychosis or due to hazards created by the accused persons is a matter moulded with doubts. If so, the allegation that cruelty by the appellants led to committal of suicide by Sheeba could not be found beyond reasonable doubts.

25. In such circumstances, this Court is of the considered view that the appellants herein are entitled to the benefit of doubt in the facts of this case, as discussed in detail hereinabove. Be it so, the conviction and sentence imposed by the learned Sessions Judge against the appellants would not sustain and the same are liable to be set aside.

In the result, the criminal appeal is allowed. The impugned judgment is set aside. The appellants/accused 1 and 2 are acquitted for all the offences and are set at liberty forthwith and their bail bonds are cancelled.

Registry is directed to forward a copy of the judgment to the learned Sessions Judge for information.