High Court of Kerala

State of Kerala and Ors. Vs. Ramadas and Ors.

MANU/KE/0452/2019

22.02.2019

Criminal

There must be in existence, proximate live link between facts of cruelty in connection with demand of dowry and death in order to attract Section 304B of IPC

Present appeals have been preferred by the State and the father of the victim, challenging the judgment passed by the Special Additional Sessions Judge, by which the accused/Appellants were not found guilty for offences alleged against them and hence, were acquitted of all charges. Question raised in present matter is whether charges were proved by the prosecution to the satisfaction of Court.

It is settled law that, appellate Courts have to restrain themselves from reversing the finding of a trial Judge merely on the ground that another view is possible or that a better view could have been taken. Unless it is shown to the satisfaction of this Court that, the judgment is perverse or that it is unreasonable, interference is not called for in the matter.

When Section 113-B of Evidence Act, 1872 and Section 304B of Indian Penal Code, 1860 (IPC) are read together, it is palpable that there must be material to show that soon before her death, the victim was subjected to cruelty or harassment. Apex Court has laid down in catena of decisions that, 'soon before' is a relative term and it would depend upon circumstance of each case and no straight jacket formula can be laid down as to what would constitute the said period. There must be in existence, proximate live link between the facts of cruelty in connection with demand of dowry and the death. If the alleged incident of cruelty is remote in time and had become stale enough not to disturb mental equilibrium of the women concerned, it would be of no consequence.

The word used is 'shown', not 'proved' in Section 304B IPC. It indicates that, the prosecution can discharge its burden by preponderance of probability. The word 'deemed' used in that Section requires that, an accused has to prove his innocence beyond reasonable doubt. The accused is required to rebut the presumption under Section 113B of the Act by proving his innocence. Thus, where prosecution has shown that 'soon before her death' the deceased was subjected to cruelty or harassment by the husband or in-laws in connection with demand of dowry, the presumption under Section 113B of Act arises and the Court shall presume that such person, who had subjected the women to cruelty or harassment in connection with any demand for dowry, shall be presumed to have caused the dowry death. The presumption that arises in such cases may be rebutted by the accused. Plain reading of Section 304B clearly shows that the death which is talking about could be homicide or suicide. Hence, there is no legal bar in charging the accused with Section 304B and Section 302 of IPC simultaneously.

Evidence adduced by the prosecution would show that, death of deceased was a suicide. The question of homicide does not arise. Prosecution does not even have a case of homicide. Nobody was present in the house at the time of incident except 3rd accused who was taking care of the child of the victim. There is also evidence to the effect that attempts were made to break open the room and water was seen poured over the body of the victim. Hence offence under Section 302 read with Section 34 of IPC crumbles at the very outset.

Prosecution did not discharge its onus of proving specific instances of cruelty or harassment in connection with demand of dowry soon before the death of the victim. It can also be seen that, specific instances of cruelty demanding dowry are not meted out from the evidence of PW 7 to PW 11. Even in matrimonial disputes, specific instances of cruelty is a material aspect. In criminal trial, there cannot be a conviction under Section 304B of IPC unless the above is proved. There are general allegations regarding demand for dowry. When it was made and under what circumstances such demand was made are conspicuously lacking.

The death of deceased occurred after 2 years and 2 months of marriage. Evidence further reveals that, her death was due to burns and it was a suicide. But nothing is shown in evidence to arrive at a conclusion that, the victim was subjected to cruelty in connection with demand for dowry by the accused. Unless the same is proved by the prosecution at least as a probability by preponderance, no offence under Section 304B of IPC is made out and hence no presumption under Section 113B could be raised. The observation by the trial Court that the victim committed suicide because the dowry demanded was not given to her by her parents is not backed by any evidence and hence needs no interference. Appeals dismissed.

Tags : Acquittal Cruelty Proof

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