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2004 DIGILAW 202 (KER)

Balachandran Nair v. State of Kerala

2004-05-25

K.A.ABDUL GAFOOR

body2004
JUDGMENT K.A. Abdul Gafoor, J. 1. This is an appeal by the accused who has been convicted for the offence punishable under S.304 B and 498 A IPC. He has been sentenced to undergo rigorous imprisonment for ten years on the first count. No separate sentence is ordered for the offence under S.498A IPC. 2. It is submitted by the counsel for the appellant that there is absolutely no evidence in this case that he had subjected his deceased wife to cruelty or harassment "for or in connection with any demand for dowry". Even going by the prosecution case what the accused had directed the deceased was to sell away the property which had already been given to his wife. That does not amount to demand for dowry. It is true that he had sent her to her house. Even if it is cruelty it will not be one for or in connection with demand for dowry. Necessarily, the charge under S.304B will not lie. There was no actual cruelty on his part as well. Therefore the charge under S.498A also will not lie. So the appellant therefore is entitled for acquittal, the counsel submits. 3. On the other hand it is submitted by the Public Prosecutor that the evidence given by PW 1, the brother of the deceased and PW2 the mother of the deceased, PW3 the brother-in-law of the deceased, PW4 the maternal aunt of the deceased disclosed that there was a discussion regarding dowry even prior to the marriage of the accused with the deceased on 18-05-1987. The accused had demanded 20 sovereign and 50 cents of land to be given to the bride. The discussion ended agreeing to give 25 cents of land and 16 sovereign of gold ornaments. Even after the marriage there was a demand that 30 cents of property had been agreed to and that it should be given. This dispute also, as is spoken to by the witnesses, ended in a compromise and land measuring five cents set apart as a burial ground lying adjacent to the 25 cents of land already given to the wife of the accused was given to the deceased. Thus continued dispute and demand for dowry are evident in this case. This dispute also, as is spoken to by the witnesses, ended in a compromise and land measuring five cents set apart as a burial ground lying adjacent to the 25 cents of land already given to the wife of the accused was given to the deceased. Thus continued dispute and demand for dowry are evident in this case. In such situation the fact that the accused had taken the victim on 29-12-1990 to her house demanding that the entire 30 cents standing in her name shall be sold indicates that there was cruelty in connection with the demand for dowry. A married girl was sent to her house demanding that the entire property in her name shall be sold and sale consideration shall be brought to the husband in spite of her resistance to sell, is a cruelty coming under explanation to S.498A IPC. It is an act which will drive a woman to commit suicide as is done in this case. Therefore there is evidence with regard to the offence punishable under S.498A as well. So no interference is called for from the hands of this Court, the Public Prosecutor submits. 4. Going by the evidence of PW 1, the brother of the victim and PW2 the mother of the victim there was demand for dowry on the part of the accused. But that demand has been met by assigning 5 cents of property adjacent to the 25 cents of land already given to the victim. Thereafter, PWs. 1 and 2 do not have a case that the accused had demanded anything more nor do they have a case that the victim had been brought to their house on 29-12-1990 demanding any more property. On the other hand, the consistent case of PW 1 and PW2 is that the accused had taken the victim to her house on condition that she shall return to him only with the sale proceeds after selling the land in her name. That does not mean that he had demanded any more dowry. The demand made by the appellant/accused to his wife that she shall sell her property cannot be said to be a demand for dowry. Any such compulsion or even taking her to her own house cannot be stated to be a cruelty "for or in connection with any demand for dowry" to attract S.304 B IPC. 5. The demand made by the appellant/accused to his wife that she shall sell her property cannot be said to be a demand for dowry. Any such compulsion or even taking her to her own house cannot be stated to be a cruelty "for or in connection with any demand for dowry" to attract S.304 B IPC. 5. Dowry means any property or valuable security given or agreed to be given either directly or indirectly by one party to the marriage to the other or by the parents of either party to the marriage to the other person. Here the demand made by the accused as spoken to by PW 1 and PW 2 is not one for any property or valuable but only to dispose of the property in the name of his wife. Therefore, the conviction under S.304B shall have to be set aside. Consequently the appellant shall be acquitted of the offence charged under S.304B IPC. 6. Cruelty as defined in S.498A IPC means; "any wilful conduct which is of such a nature as is likely to drive the women to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand". The marriage took place on 18-05-1987. There is no much dispute. The incident took place on 29-12-1990 in the parental house of the bride. That is also not disputed. Thus the bride was in her own house, not in her matrimonial house, at the time of the alleged incident. PW 1 and PW2, the close relatives of the victim are unanimous that she had been taken to her house by the accused on the particular day with the demand that she shall sell the property and return to husband's house with the sale consideration. Of course they are interested witnesses. But PW 5 is a neighbour. He has seen, at about noon on the particular day, that the accused had taken the victim to her house in an autorickshaw. There is no reason to disbelieve this witness. 7. Of course they are interested witnesses. But PW 5 is a neighbour. He has seen, at about noon on the particular day, that the accused had taken the victim to her house in an autorickshaw. There is no reason to disbelieve this witness. 7. When this witness speaks in corroboration with the version given by PW 1 and PW2, there is no reason to disbelieve them as well, though they are close relatives of the victim. It has come out in evidence as spoken to by PW 1 and PW2 that the deceased was not willing to dispose of the property standing in her name and that she was being compelled by the accused. A persistent demand by the husband to the wife that the latter shall sell her property away and if the former had taken the latter to her parental house to compel so, necessarily it is an act which may even drive the wife to commit suicide. In this case on an earlier occasion there was a persistent demand by the accused for dowry over and above what had already been agreed to and given at the time of marriage. Therefore, that act is nothing but cruelty. Necessarily his conviction under S.498A IPC has to be upheld. 8. As the court below had convicted and sentenced the appellant under S.304B IPC no separate punishment had been awarded under S.498A IPC, though there was conviction on that count. In the circumstances I am of the view that imprisonment for a period of one year shall meet the ends of justice. Accordingly the appeal is allowed. Conviction and sentence passed under S.304B IPC are set aside. Conviction under S.498A IPC is confirmed. The appellant/accused is sentenced to undergo rigorous imprisonment for a term of one year for that offence. Whatever imprisonment he had undergone during the trial or pending this appeal shall be set off against the said period.