S.A. Hussainy alias Syed Ameerullah Hussainy v. State rep by Inspector of Police, Crime Branch, R-7, K.K. Nagar Police Station, Chennai

2. The first accused was convicted for an offence undersection 3 of the Dowry Prohibition Act and was sentenced to undergotwo years rigorous imprisonment and to pay a fine of Rs.70,000/= indefault to undergo 6 months rigorous imprisonment. He was alsoconvicted for an offence under section 4 of the Dowry ProhibitionAct and was also sentenced to undergo six months rigorousimprisonment. The first and third accused were convicted for anoffence under section 498 A of the Indian Penal Code and weresentenced to undergo two years rigorous imprisonment and to pay afine of Rs.2000/= in default to undergo three months rigorousimprisonment. The first accused was convicted for an offence undersection 354 of the Indian Penal Code and was sentenced to undergoone year rigorous imprisonment and to pay a fine of Rs.1000/= indefault to undergo two months rigorous imprisonment. 3. The second accused, who is none other than the wife of thefirst accused and the mother of the third accused was acquitted ofall the charges framed against her. Further A1 and A3 wereacquitted of the charge under section 304 B of the Indian PenalCode. 4. On the side of the prosecution, 16 witnesses were examinedand 20 documents and one material object were marked. Neither oralnor documentary evidence was let in on the side of the defence. 5. The case in brief of the prosecution as reflected from theevidence let in by them reads as follows:-(i) PW1 Basheer Ahmed is the father of Shamina Berdose, whowas married to the third accused, who is the second appellantherein. The first appellant is none other than the father of thesecond appellant. In the month of May, 1997, betrothal ceremonywas conducted as a precursor for the marriage to be conducted bythe third accused with the victim Shamina Berdose. Even at thetime of betrothal ceremony, the accused demanded a ring of onesovereign for the accused. PW1 gave the ring weighing onesevereign to the accused at the time of betrothal.(ii) Thereafter, the accused family came to the house of PW1for seeing the bridegroom. The accused demanded Rs.50,000/= ascash and 40 sovereigns of gold jewels and one Hero Honda MotorCycle. PW1, having refused to part with such a huge demand, paidonly Rs.25,000/= as cash, 25 sovereigns of gold jewels and a motorcycle worth Rs.30,000/= for the marriage, which took place on28.7.1997 at Ashok Nagar, Chennai. Every Friday for four weeksimmediately after the marriage, as per the custom in vogue, the newcouple were invited to the house of PW1. When they came for the https://hcservices.ecourts.gov.in/hcservices/ third Friday, a Silver Tumbler was presented as per the custom.But, the victim informed PW1 and her family members that theaccused demanded a ring embedded with stone. A sum of Rs.10,000/=was demanded instead of inviting the couple for the fourth Fridayby the accused. (iii) On 6.1.1997, the victim lady was brought by the accusedto the house of PW1. She informed PW1 and her family members thatthe third accused asked her to persuade her family members to sellaway the plot at Minjur, which stands in the name of PW2 and pay asum of Rs.10,000/= to the accused. (iv) On 28.11.1997, the victim lady was brought by the brotherof the victim to the house of PW1. The victim lady informed herparents and her sister that the first accused caught hold of herfrom behind and kissed her. He started kissing her often.Therefore, she refused to live with her husband in the matrimonialhouse. (v) On 11.12.1997, when the third accused came alongwith thesecond accused and his sister, PW1 informed them about themisbehaviour of the first accused with his daughter. The thirdaccused promised that he would take care of the victim lady. Thevictim lady was sent alongwith the third accused to the matrimonialhome. On 15.12.1997, during telephonic conversation, the thirdaccused informed PW1 that the victim lady would become alright ifthe amount demanded by the first accused was paid to him afterselling the plot. But, quite unfortunately, information was passedon to the family members of PW1 that the victim lady committedsuicide during the night of 15.12.1997. 6. PW2 is the mother of the victim lady. PW3 is her sister.Both of them have spoken to the demand of dowry and themisbehaviour of the first accused with the victim lady.7. PW4 Shajahan, the neighbour of PW1 has deposed that 25sovereigns of gold jewels, cash of Rs.25,000/= and a scooter worthRs.30,000/= were given to the third accused at the time ofmarriage. He also spoke to the misbehaviour of the first accusedwith the victim lady. PW5 Subbiah, retired Special Officerattached to the Tamil Nadu Slum Clearance Board would depose thatthe victim lady informed him about the sexual advances made by herfather-in-law, the first accused herein with her. 8. The second accused Salimuneesa, the wife of the firstaccused proceeded to R7 Police Station at about 1.00 am on16.12.1997 and lodged a report, Ex.P2 alleging that her daughter-in-law committed suicide due to some family problem to the SubInspector of Police Mr.Nelson, PW10, who registered a case in Crime https://hcservices.ecourts.gov.in/hcservices/ No.3416 of 1997 under section 174 of the Code of CriminalProcedure. He prepared printed First Information Report, Ex.P3 anddespatched the same to the Executive Magistrate for inquest to notethe cause of death.9. PW13 Mr.Kannan, having received the First InformationReport from PW10, sent the dead body of the victim for post mortemexamination. PW12 Dr.Baskar, having conducted autopsy on the deadbody of Shamina Berdose, issued post mortem certificate, Ex.P6 thatthe deceased appeared to have died of Asphyxia due to hanging.After the post mortem examination was over, PW13 conducted inquestand examined the witnesses on the victim side and also on theaccused side and came to a decision that there was no demand ofdowry in his inquest report, Ex.P11. 10. PW15, R.S.Venugopal, Deputy Superintendent of Police,attached to Saidapet Circle, took up the case for investigation andprepared Observation Mahazar, Ex.P17 in the presence of Ramesh andSardar Khan. He also prepared Rough Sketch, Ex.P18 reflecting thescene of occurrence. He seized Nylon Saree, M.O.1 from the sceneof occurrence. He examined the witnesses and recorded theirstatements. On receipt of the Inquest Report, Ex.P20 from theExecutive Magistrate, he converted the case into one under theIndian Penal Code. PW16, Mr.P.K.Senthil Kumar, the DeputySuperintendent of Police took up the case for investigation andexamined the witnesses and recorded their statements. Havingobtained the post mortem report, Ex.P6, he filed final report on31.8.1999 under sections 498A, 304B and 384 of the Indian PenalCode and section 4 of the Dowry Prohibition Act.11. The accused have come with a total denial of theincriminating circumstances spoken to by the witnesses on the sideof the prosecution, when they were examined under section 313 ofthe Code of Criminal Procedure. 12. The learned Senior Counsel appearing for the appellants/A1and A3 would submit that the Executive Magistrate has returned afinding that there was no dowry demand and the death was not onaccount thereof. PW1 was categorical that the deceased daughter washappy in the matrimonial home after she was sent back over there.PW6 also has spoken to the fact that both the third accused and thevictim lady lived together happily. It is his legal submissionthat when the accused were acquitted of the offence under section304 B of the Indian Penal Code , the charge under sections 3 and 4of the Dowry Prohibition Act would not stand the legal scrutiny.It is his further submission that the statement alleged to have https://hcservices.ecourts.gov.in/hcservices/ been given by the deceased to PW1 to PW3 is not admissible withrespect to the charge under sections 354, 384, 498A of the IndianPenal Code and sections 3 and 4 of the Dowry Prohibition Act. Hewould further submit that the victim did not choose to inform thesecond and third accused about the misbehaviour of the firstaccused, which appears to be an abnormal conduct of the victim.Referring to the age of the first accused, who had crossed 65 yearsat the time of the occurrence, he would submit that a false casewas weaved by the prosecution as against the first accused asthough his sexual advances led to the suicide by the victim.Therefore, he would submit that the first and third accused arealso entitled to acquittal. 13. Per contra, the learned Government Advocate (CriminalSide) would submit that within a span of about five months from thedate of marriage, the victim lady has committed suicide. Thedemand of dowry on three occasions was established through theevidence of PW1 to PW5. Their testimony with respect to the demandof dowry is also supported by PW4 and PW5. The sexual advancesmade by the first accused also stood established by theprosecution. Therefore, he would submit that the trial court hasrightly convicted accused 1 and 3 under the aforesaid penalprovisions of law. 14. PW1 is none other than the father of the victim lady. Hehas categorically deposed that the accused even at the time whenthe betrothal ceremony was conducted in the month of May 1997demanded one sovereign of gold ring for the third accused. PW1acceded to such a demand and gave one sovereign of gold ring. Atthe time when the accused came to see the bride, they demanded cashof Rs.50,000/= and 40 sovereigns of gold ornaments and a Hero Hondamotorcycle. But, PW1 refused to accede to such a whopping demandof dowry. It is his version that he paid only cash of Rs.25,000/=,25 sovereigns of gold ornaments and motorcycle worth Rs.30,000/=. 15. PW2, mother and PW3, the sister of the deceased have alsolent corroboration to the version of PW1. The aforesaid demandswere made by A1 just prior to the marriage and the date ofmarriage. There is no reason to disbelieve the evidence of PW1which is amply corroborated by PW2 and PW3. PW4, an independentwitness in this case though not spoken about the demand made by theaccused, he has deposed to the fact that at the time of marriage,25 sovereigns of gold ornaments, cash of Rs.25,000/= and amotorcycle worth Rs.30,000/= were given to the third accused. PW6,yet another independent witness in this case would corroborate thecase of the prosecution that a list containing 20 sovereigns of https://hcservices.ecourts.gov.in/hcservices/ gold jewels, cash Rs.25,000/= and a Hero Honda motorcycle worthRs.30,000/= agreed to be paid was prepared and handed over to thefirst accused, who verified the same and accepted the list. Thereis no voluntariness in giving those articles at the time ofmarriage by PW1 to the third accused. Though PW1 to PW3 havespoken in general about the demand of dowry made by the accused,PW6 has categorically spoken that the list was prepared containingthose dowry articles and handed over to the first accused whoverified the same and accepted it. The evidence of PW1 to PW3receives support from the independent witnesses PW4 and PW6.Therefore, there is no reason to disbelieve the evidence of theprosecution witnesses who speak to the fact that the first accusedbeing the father of the third accused demanded not only at the timeof marriage but also at the time when betrothal ceremony wasconducted and received the aforesaid articles as dowry. The TrialCourt has rightly rendered a verdict that the prosecution hasestablished that the first accused committed offences undersections 3 and 4 of the Dowry Prohibition Act as he had not onlydemanded dowry but also received the same on those two occasions. 16. Let us now come to the charge under section 498A of theIndian Penal Code. PW1 has deposed that immediately after themarriage, every Friday for four weeks there would be a function asper the custom in vogue in his community. Every Friday during thesaid period, some gift used to be presented to the bridegroom.But, during the third Friday, the accused demanded a ring studdedwith a stone. During the fourth Friday, the accused demanded a sumof Rs.10,000/= instead of organising the customary function. Thedeceased victim lady informed the parents and her sister that thethird accused demanded a sum of Rs.10,000/= out of the saleproceeds of the plot at Minjur standing in the name of PW2. It isfurther deposed that PW1 could provide only a sum of Rs.5000/=. PW2would also state that the third accused demanded a ring studdedwith stone during the customary function organised on Fridayimmediately after the marriage. Instead of organising the fourthFriday customary function, the third accused demanded a sum ofRs.10,000/=, but, she refused to part with a sum of Rs.10,000/=.The third accused came down to their house and asked PW1 and PW2whether the amount of Rs.10,000/= demanded by him was ready. But,PW1 could part with only a sum of Rs.5000/= and a stabilizer forthe air conditioner plant. She would also depose that the thirdaccused asked PW1 and PW2 to sell away the plot at Minjur standingin the name of PW2 and pay a sum of Rs.10,000/=. In thealternative, he demanded that the said plot be registered in hisname. PW2 would further depose that she informed A3 that the saidproperty would not fetch the expected consideration. Instead, she https://hcservices.ecourts.gov.in/hcservices/ suggested that the said property might be registered in his name athis own expenses. PW3, the sister of the deceased alsocategorically deposed before the court that a sum of Rs.10,000/=was demanded when A3 came down to attend the customary Fridayfunction. But, PW1 agreed to pay a sum of Rs.5000/=. On 9.9.1997,A3 came along with the deceased victim lady and enquired whetherthe amount of Rs.10,000/= demanded by him was ready. But, a sum ofRs.5000/= alone was paid along with a stabilizer. She would alsocorroborate the version of PW1 and PW2 that the third accusedinsisted for selling the plot at Minjur and pay the considerationto him, but, PW1 and PW2 informed him that the said property beregistered in the name of A3 as it would not fetch the expectedconsideration on sale. 17. The evidence of PW1 to PW3 establishes without any roomfor doubt that the third accused made a persistent demand for aring studded with stone, a sum of Rs.10,000/= instead of holdingthe customary Friday function and also the price of the plot atMinjur standing in the name of PW2. The aforesaid demand made byA3 is found to be an unlawful demand. The conduct of A3 wouldclinchingly disclose that by making such an unlawful demand afterthe marriage, he started harassing the victim lady. With the aboveevidence on record, the prosecution has established beyondreasonable doubt that the third accused committed an offencepunishable under section 498A of the Indian Penal Code . 18. Coming to the charge as against the first accused undersection 498A and 454 of the Indian Penal Code, it is found that PW1has categorically deposed that the victim lady, a few days beforethe occurrence, came down to his house and informed in the presenceof his wife, PW2, his daughter PW3 and himself that the firstaccused, who was none other than the father-in-law of the victimlady caught hold of her from behind and kissed her not once, butmany an occasion. Therefore, the victim lady very firmly informedthe family members that she would not go and live in thematrimonial home. In fact, PW1 and PW2 consoled her and said thatthere was no necessity to proceed to the matrimonial house. It ishis further version that when the third accused along with hismother and sister came down to the house at the request of PW1, thelatter appraised them of the misbehaviour exhibited and sexualadvances made by the first accused to the victim lady. It is hisversion that when the third accused took the victim lady to hishome after promising to take care of the victim lady, PW1 was indeep sorrow. In fact, the victim lady consoled the family memberssaying that she would come back to the parental home with herbaggage if at all any untoward incident took place in the https://hcservices.ecourts.gov.in/hcservices/ matrimonial home. PW2, mother of the victim lady, PW3, sister ofthe victim lady have also lent corroboration to the above versionof PW1. 19. PW4, an independent witness in this case also would deposethat the victim lady informed him when she came down to herparental home that her father-in-law misbehaved with her. Sosaying, she uncontrollably cried. She also informed him that herfather-in-law caught hold of her and kissed her. PW5, yet anotherindependent witness also would state that the deceased informed himwhen she came down to the parental home that her father-in-lawapproached her with sexual urge. But, PW5, aged 60 years old,consoled her saying that she should not come out with such aversion against her in-laws. But, she had stated that shedisclosed those informations by the name of the God Almighty.There is no reason for PW4 and PW5, the independent witnesses inthis case to depose about the misbehavour of the first accused, whohad already crossed 65 years if at all no such revelation was madeby the victim lady to them. The independent version of P.Ws.4 and5 reinforces the testimony of PW1 to PW3 that the first accused whohad crossed 65 years had made sexual advances and misbehaved withthe victim lady. Such an act of the first accused clearly amountsto cruelty committed to a married woman. 20. The learned Senior Counsel appearing for the appellantssubmitted a ratio in SAKHI MANDALANI v. STATE OF BIHAR AND OTHERS((1999) 5 SCC 705) wherein it has been held as follows:-"These sections (sections 3 and 4 of the DowryProhibition Act) make out independent offences, butin the instant case it was the demand for dowrycoupled with harassment which constitutes the basisof the prosecution case. Once the main part of thecharge under Section 304-B was not foundestablished, it was not possible to recordconviction under Sections 3 and 4 of the DowryProhibition Act." 21. As far as the third accused is concerned, the demand ofdowry and the cruelty committed by him had started immediatelyafter the marriage. The Trial Court had acquitted the accused forthe offence under section 304 B of the Indian Penal Code as therewas no close nexus between the cruelty committed on the victim ladyand the suicide she committed. But, the cruelty committed by thefirst accused stands completely independent of the dowry death ofthe victim lady. If it is the case of the prosecution that soonbefore the death of the victim lady, she was subjected to cruelty https://hcservices.ecourts.gov.in/hcservices/ only by demanding dowry and the said charge was not established,then in that case, the offences under sections 3 and 4 of the DowryProhibition Act would not have any independent legs to stand upon,though the offences under sections 3 and 4 of the Dowry ProhibitionAct make out independent offences. In the instant case, A1 had madea demand of dowry and received it prior to the marriage and on thedate of marriage. Further, the Dowry Harassment as far as thethird accused is concerned, had started immediately after themarriage. Such a demand of dowry coupled with harassment made bythe third accused immediately after the marriage do not have directimpact on the dowry death. That was the reason why the Trial Courtchose to acquit all the accused for the offence under section 304 Bof the Indian Penal Code. Therefore, the above ratio will not applyto a situation where there was demand of dowry prior to themarriage, on the date of marriage and immediately after themarriage which have no direct and proximate nexus with the dowrydeath. 22. In GANANATH PATTNAIK v. STATE OF ORISSA ((2002) 2 SCC619), it has been observed as follows:-"Another circumstance of cruelty is with respectto taking away of the child from the deceased.To arrive at such a conclusion, the trial courthas referred to the statement of PW5, who is thesister of the deceased. In her depositionrecorded in the court on 4.5.1990 PW5 had stated"Whenever I had gone to my sister, allthe times she was complaining that sheis not well treated by her husband andin-laws for non-fulfilment of balancedowry amount of a scooter and a two-in-one."and added: On 3.6.1987 for the last time I hadbeen to the house of the deceased i.e.,to her separate residence. Sworna,Snigdha, Sima Apa, Baby Apa accompaniedme to her house on that day. At thattime the deceased complained before usas usual and added to that she saidthat she is being assaulted by theaccused nowadays. She furthercomplained before us that the accusedis taking away the child from her, andthat her mother-in-law has come andsome conspiracy is going against her https://hcservices.ecourts.gov.in/hcservices/ (the deceased). She further told that'mate au banchei debenahin'".Such a statement appears to have been taken onrecord with the aid of Section 32 of the IndianEvidence Act at a time when the appellant wasbeing tried for the offence under Section 304-Band such statement was admissible under clause(1) of the said section as it related to thecause of death of the deceased and thecircumstances of the transaction which resultedin her death. Such a statement is notadmissible in evidence for the offencepunishable under Section 498-A of the IndianPenal Code and has to be termed as being only ahearsay evidence. Section 32 is an exception tothe hearsay rule and deals with the statementsor declarations by a person, since dead,relating to the cause of his or her death or thecircumstances leading to such death. If astatement which otherwise is covered by thehearsay rule does not fall within the exceptionsof Section 32 of the Evidence Act, the samecannot be relied upon for finding the guilt ofthe accused."23. It is relevant to refer to the provision under section 32(1) of the Indian Evidence Act. Section 32(1) of the IndianEvidence Act reads as follows:-" When the statement is made by a person as tothe cause of his death, or as to any of thecircumstances of the transaction which resultedin his death, in cases in which the cause ofthat person's death comes into question.Such statements are relevant whether theperson who made them was or was not, at the timewhen they were made, under expectation of death,and whatever may be nature of the proceeding inwhich the cause of his death comes intoquestion."24. It appears that in the aforesaid case, some pettycomplaints had been articulated by the deceased to her sister. Thecase of the prosecution that there was cruelty committed by thehusband and in-laws of the victim lady was not at all establishedin that case. In such circumstances, the Supreme Court had come toa decision that the deposition of the sister of the victim lady https://hcservices.ecourts.gov.in/hcservices/ about the information shared by the victim lady would amount tohearsay evidence. Only if the prosecution could establish that thevictim lady was subjected to cruelty or harassment by her husbandor any relative of her husband soon before her death, such personswould be punished under section 304 B of the Indian Penal Code forcausing dowry death. Certain circumstances of the transactionwhich resulted in the death of the victim lady may not haveproximate intimacy with the death of the victim lady. In suchcircumstances, we cannot hold that the informations relating to thecircumstances of the transaction long before the death of thevictim girl resulted in her death would only amount to hearsayevidence. Any statement made by the victim relating to the cause ofher death or about certain circumstances of the transaction whichultimately resulted in her death would not amount to hearsayevidence as per section 32(1) of the Indian Evidence Act, 1872.Therefore, it is held that the statement of a victim lady about thecruelty or harassment meted out to her long before her death notsoon before death as contemplated under the penal provision undersection 304 B of the Indian Penal Code is definitely admissible inevidence as it is exempted from the hearsay category. 25. In the aforesaid case dealt by the Supreme Court, theharassment alleged was only demand of dowry soon before the deathof the victim lady. That was the charge both for the offencesunder section 498A of the Indian Penal Code and section 304-B ofthe Indian Penal Code in the said case. Therefore, it was heldtherein that when the foundation of the charge under section 304 Bof the Indian Penal Code to the effect that there was demand ofdowry which resulted in cruelty soon before the death of the victimlady was not established, the charge under section 498A of theIndian Penal Code also fell to the ground. In view of the abovefacts and circumstances, it is held that section 32(1) of theIndian Evidence Act would apply to the information shared by thevictim lady as it was not a hearsay evidence and that though theaccused were acquitted of the charges under section 304 B of theIndian Penal Code , the accused 1 and 3 can be punished undersection 498A of the Indian Penal Code . 26. As rightly pointed out by the learned appearing for theappellants, the Executive Magistrate, PW13 has arrived at aconclusion that there was no demand of dowry which culminated insuicide of the victim lady. It is a well settled position of lawthat the proceedings conducted by the Executive Magistrate invokingthe provision under section 174 of the Code of Criminal Procedurehas only a very limited scope. It is his primary duty to ascertain https://hcservices.ecourts.gov.in/hcservices/ the apparent cause of death of the person, who died in suspiciouscircumstances. He is not supposed to delve deep into the minutedetails as to how the deceased was put to death or who actuallyauthored the crime or under what circumstances the crime wascommitted. Those details fall outside the ambit and scope of theproceedings under section 174 of the Code of Criminal Procedureembarked upon by the Executive Magistrate.27. Immediately after the occurrence, the family members ofthe victim might not have come out with a real circumstance, whichculminated in the suicide of the victim lady. If the familymembers of the victim lady have come out with real reason for thedeath during the course of investigation under section 161 of theCode of Criminal Procedure before the investigating agency anddeposed before this court without much contradiction to the standthey have taken during the course of investigation, the court willhave to place reliance upon their evidence, ignoring the stand, ifany, taken by the family members of the victim during the course ofproceedings conducted by the Executive Magistrate under section 174of the Code of Criminal Procedure. At best, the version unfoldedbefore the Executive Magistrate during the proceedings of theinquest could be used by the accused for the purpose ofcontradicting the stand taken by the witness during the inquest.The statement given by the relatives of the victim and the otherwitnesses before the Executive Magistrate as well as the InquestReport prepared by him are not at all substantive piece ofevidence.28. In view of the above facts and circumstances, the courtfinds that the Trial Court has rightly recorded the conviction asagainst A1 for offences under sections 3 and 4 of the DowryProhibition Act and under section 498A and 354 of the Indian PenalCode and as against A3 for offence under section 498A of theIndian Penal Code. The sentence imposed on the first accused andthe third accused for the aforesaid offences are also found to beproportionate to the gravity thereof. There is no warrant forinterference with the judgment and conviction recorded and sentenceimposed on the first and third accused. 29. Therefore, the conviction recorded and sentence imposed onthe first and third accused stand confirmed and the appeal isdismissed. The first and the third accused shall surrender beforethe Trial Court within fifteen days from the date of receipt of https://hcservices.ecourts.gov.in/hcservices/ this order failing which the learned Trial Judge is directed toissue non bailable warrant and send them to jail to undergo theunexpired period of sentence.Ssk/ajr.Sd/-Asst. Registrar//True Copy//Sub Asst. RegistrarTo1. The IV Additional District and Sessions Judge, Chennai. 2. Do Through The Principal Sessions Judge, Chennai.3. The 23rd Metropalitan Magistrate, Chennai.4. Do Through The Chief Metropalitan Magistrate, Egmore, Chennai. 5. The District Collector, Chennai.6. The Director General of Police, Mylapore, Chennai.7. The Inspector of Police, Crime Branch, R-7, K.K.Nagar Police Station, Chennai.8. The Public Prosecutor, High Court, Madras.+ 2 ccs to Mr. R. Sundaram, Advocate SR No.37253JRG(CO)SR/26.8.2009P.D. JUDGMENT IN Criminal Appeal No.235 of 2002