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2020 DIGILAW 524 (KER)

Anilkumar v. State of Kerala

2020-06-24

A.HARIPRASAD, N.ANIL KUMAR

body2020
JUDGMENT : N. Anil Kumar, J. 1. This is a case of dowry death. The important question before us is whether Anilkumar @ Kannan (the appellant) was rightly convicted by the learned Additional Sessions Judge-VI, Kollam of having committed an offence punishable under Section 304B of the Indian Penal Code, 1860 (hereinafter referred to as 'the IPC'). 2. Background facts in brief are as follows:- Suryasmitha (hereinafter referred to as the deceased) was married to the appellant on 07.11.2006. Her husband, Anilkumar @ Kannan was arrayed as accused before the Sessions Court in connection with the death of the deceased-wife charging him with offence punishable under Section 304B of the IPC. The learned Sessions Judge convicted and sentenced the appellant to undergo imprisonment for life and also to pay a compensation of Rs. 50,000/- to PW2 who is the mother of the deceased and in default, to undergo rigorous imprisonment for three years more. The appellant filed this appeal challenging the conviction and sentence imposed by the trial court. 3. Suryasmitha, wife of the appellant committed suicide on 06.01.2007. The prosecution case is that the appellant had been continuously persecuting her with the demand for more dowry and at last she decided to commit suicide by hanging on a ceiling fan at the residence of the accused in Neendakara Village, Kollam District. At the time of marriage, 15 sovereigns of gold ornaments were given to Suryasmitha as dowry. Before the marriage, there was an understanding to pay an amount of Rs. 1,00,000/- more. However, the amount was not paid as agreed at the time of marriage. It is alleged that the appellant was harassing the deceased all the while after the marriage for not bringing Rs. 1,00,000/- as part of the dowry and she was treated cruelly. The appellant also misappropriated the gold ornaments entrusted to him at the time of marriage. On 06.01.2007, PW1-her brother came to know that the deceased committed suicide leaving behind Ext. P2 suicide note. Consequently, PW1 lodged Ext. P1 FIS before the police. PW14, the then Sub Inspector of Police, registered Ext. P11 FIR under Section 304B of the IPC. PW7-Dr. Geetha, while working as Assistant Professor and Deputy Police Surgeon at the Medical College Hospital, Thiruvananthapuram, conducted postmortem examination on the body of the deceased on 07.01.2007 and issued Ext. P5. In Ext. Consequently, PW1 lodged Ext. P1 FIS before the police. PW14, the then Sub Inspector of Police, registered Ext. P11 FIR under Section 304B of the IPC. PW7-Dr. Geetha, while working as Assistant Professor and Deputy Police Surgeon at the Medical College Hospital, Thiruvananthapuram, conducted postmortem examination on the body of the deceased on 07.01.2007 and issued Ext. P5. In Ext. P5, PW7 opined that the postmortem findings are consistent with death due to hanging. There seems to be no dispute on the fact that Suryasmitha committed suicide by hanging herself on 06.01.2007. 4. PWs. 1 to 16 were examined and marked Exts. P1 to P16 on the prosecution side. Exts. D1 to D3 were marked on the defence side. On closing the evidence of the prosecution, the accused was questioned under Section 313(1)(b) of Cr.P.C. The accused denied the prosecution allegations. He maintained that he had never demanded dowry from his wife-Suryasmitha. According to him, Suryasmitha had been suffering from various diseases before her marriage and had undergone treatment at the Holy Cross Hospital, Kottiyam. Her breast was operated twice before her marriage. He came to know about the operations only after the marriage. She told him that she was in need of Rs. 25,000/- more in connection with her treatment. However, she did not say the reasons therefor. He had earned his livelihood by conducting fishing on the high seas. She went home voluntarily in his absence. In support of his defence, DW1 was examined and marked Ext. D1. 5. The trial court, after considering the evidence on record, held that there was sufficient evidence to show that Suryasmitha had been subjected to cruelty and harassment within seven years of marriage. Accordingly, the accused was convicted and sentenced for the offence punishable under Section 304B of the IPC. 6. Heard Sri. B. Bipin, learned counsel for the appellant and Smt. Ambika Devi, learned Special Public Prosecutor for the respondent. 7. The learned counsel for the appellant contended that the deceased had a large ovarian cyst (4.5 x 4 x 2.5cms.) at the time of her death. The existence of a large fibroid cyst and the suppression of earlier operations had compelled the deceased to end her life. The learned counsel further submitted that the issue was settled between the parties and the accused brought her back home on 26.12.2006. The existence of a large fibroid cyst and the suppression of earlier operations had compelled the deceased to end her life. The learned counsel further submitted that the issue was settled between the parties and the accused brought her back home on 26.12.2006. There is no evidence to prove that, the accused had tortured or harassed the deceased in connection with demand for more dowry after 26.12.2006. It is further contended that the trial court had not taken into consideration of Ext. P2 suicide note in the right perspective and the evidence tendered by the prosecution is not sufficient to convict the accused for the offence punishable under Section 304B of the IPC. 8. Refuting the contentions of the learned counsel for the appellant, Smt. Ambika Devi, learned Special Public Prosecutor appearing for the State submitted that the death had taken place within seven years of marriage and PW1-the brother of the deceased had deposed about the demand of dowry and humiliation of the deceased on account of such demand. 9. A suicide note alleged to have been found was taken into custody by the police. When PW1 was examined before court, Ext. P2 suicide note was marked through him. In fact, Ext. P2 suicide note was recovered by the police and produced before court as an evidence for the prosecution. The translated version of Ext. P2 suicide note is extracted below:- "I put an end to this worthless life. No one is responsible for my death. Suryasmitha." 10. The contention of the learned counsel for the appellant is that, the appellant had not abetted the commission of suicide as he had neither instigated the deceased to commit suicide, nor had he made a willful representation of any fact, which might have instigated the deceased to commit suicide. It is the contention of the learned counsel for the appellant that the appellant was not implicated directly in the suicide note and the deceased committed suicide on account of frustration in her life. 11. PW2 is the mother of the deceased. According to her, she had agreed to give 15 sovereigns of gold ornaments and Rs. 1,00,000/- to the accused before the marriage as dowry. However, she could not arrange the money as agreed to. Immediately after the marriage, the accused demanded Rs. 1,00,000/- and refused to sign the marriage register. 11. PW2 is the mother of the deceased. According to her, she had agreed to give 15 sovereigns of gold ornaments and Rs. 1,00,000/- to the accused before the marriage as dowry. However, she could not arrange the money as agreed to. Immediately after the marriage, the accused demanded Rs. 1,00,000/- and refused to sign the marriage register. At the time of marriage, Suryasmitha was working as a staff in the business concern of PW12-Mohandas. By way of settlement, PW12 handed over a cheque for an amount of Rs. 1,00,000/- to the accused immediately after the marriage. Hence the dispute was settled on that day. After one week, PW12 paid an amount of Rs. 50,000/- in cash and a new cheque for Rs. 50,000/- to the accused through the brothers of the deceased. On payment of the cash and cheque, the original cheque for Rs. 1,00,000/- was returned. After three weeks, the deceased rang her up and told that the accused sold away 10 sovereigns of gold ornaments to PW12 to clear his debts. Later, PW2 released a precious gold chain from PW12 on payment of the amount due for the gold chain. Consequent to the marital dispute between her daughter and the accused, her daughter came back home after 35 days of the marriage. However, her daughter was taken back by the accused and friends after ten days in her absence. 12. PW12 supported the version of PW2. He stated that he had paid an amount of Rs. 1,00,000/- by way of post dated cheque to the accused on the date of their marriage. He also stated that the accused came to his business concern for the sale of gold ornaments. He paid an amount of Rs. 75,000/- as consideration. He produced Ext. P10 counter foil of the cheque for an amount of Rs. 50,000/- issued by him before the Investigating Officer. 13. PW3-Sikha is an independent witness on the side of the prosecution to prove the occurrence. According to her, she had attended the marriage of the deceased with the accused. She testified that she had got acquainted with the deceased while the latter was working at the office of PW12. PW3 stated that the deceased very often used to come to her residence for taking lunch. According to her, she had attended the marriage of the deceased with the accused. She testified that she had got acquainted with the deceased while the latter was working at the office of PW12. PW3 stated that the deceased very often used to come to her residence for taking lunch. She further stated that there existed a dispute between the deceased and the accused immediately after the marriage in connection with the demand of dowry. Accordingly, the office bearers of the Karayogam intervened in the matter and settled the issue by paying an amount of Rs. 1,00,000/- through PW12. Later, she came to know that the deceased committed suicide on 06.01.2007. She further stated that one day the deceased came to her residence and requested to stay as paying guest at her residence which request was initially declined by her. However, she entrusted the deceased with her mother and left for her work. After ten days, she came to know that the sister of the deceased and her cousin brother came and brought her back home. 14. PW16 is the president of Cheriazheekkal Araya Vamsa Paripalana Yogam. He stated that he had brought Ext. P16 copy of the marriage register signed by the deceased and the accused on 07.11.2006. As per the register, 120gms. of gold and Rs. 1,00,000/- were handed over to the accused as dowry. 15. As per the direction of the Sub Divisional Magistrate, one of the Executive Magistrates working under him conducted inquest on the body of the deceased. At the time of inquest, one gold chain, anklets, nose-ring, gold ring and one bracelet were found on the body of the deceased. In the inquest report, it is specifically stated in Column No. 10 that the victim-Suryasmitha committed suicide on account of ill-treatment from the part of the accused. PW1, who gave Ext. P1 FIS before police, stated that he had no direct knowledge regarding the occurrence. However, he collected information from his sisters and lodged Ext. P1 before police. PW2 admitted, in cross-examination, that the deceased was subjected to operation for removing a fibroid from her left breast. It is brought out from the evidence of PW3 that the deceased was unhappy at the matrimonial home and she would like to stay with PW3 for some time. However, her relatives intervened and brought her back home. As per Ext. PW2 admitted, in cross-examination, that the deceased was subjected to operation for removing a fibroid from her left breast. It is brought out from the evidence of PW3 that the deceased was unhappy at the matrimonial home and she would like to stay with PW3 for some time. However, her relatives intervened and brought her back home. As per Ext. P1 FIS given before the police, PW1 had no case that he had issued cheque for Rs. 1,00,000/- on the date of marriage, and one week later in lieu of cheque for Rs. 1,00,000/-, he handed over a cheque for Rs. 50,000/- and an amount of Rs. 50,000/- as cash to the accused. This version was subsequently stated before the Investigating Officer in his additional statement under Section 161 of Cr.P.C. Exts. P10 and P10(a) produced by PW12 do not prove the issuance of cheque to the accused. The counter foils produced cannot be taken as a piece of evidence. Though PW12 stated that he paid an amount of Rs. 1,00,000/- by way of cheque on the date of marriage to settle the dispute, the said cheque was received back by him. No explanation was offered as to why the said cheque was not recovered by the police. There is also no evidence to show that an amount of Rs. 50,000/- was actually paid to the accused. Regarding the balance amount of Rs. 50,000/-, the case of the prosecution is that the amount was paid by way of cheque. It is a fact that the cheque was issued in the name of the accused. There is nothing on record to show that the cheque was collected by the accused from the account of PW12. In the marriage register, the amount given to the couple is shown as Rs. 1,00,000/-; whereas the admitted case of the prosecution is that only a cheque for Rs. 1,00,000/- was issued to the accused. The entry in the register is contradictory to the prosecution case. 16. In the 313 statement, the accused stated that the deceased had been suffering from a serious disease before her marriage which fact was suppressed by PWs. 1 and 2. It is clear from the evidence of PWs. 1, 2, 3 and 12 that the deceased was not happy in her matrimonial home. Ext. 16. In the 313 statement, the accused stated that the deceased had been suffering from a serious disease before her marriage which fact was suppressed by PWs. 1 and 2. It is clear from the evidence of PWs. 1, 2, 3 and 12 that the deceased was not happy in her matrimonial home. Ext. D1 would indicate that before the marriage of the deceased, she had undergone treatment in connection with some illness. PW7-the Doctor, who conducted postmortem on the body of the deceased, noted a large ovarian cyst (4.5 x 4 x 2.5). Going by the evidence, there is no material to support the evidence of the prosecution that there was any demand of dowry as alleged by the prosecution after the marriage. There is also no evidence traced out to prove that the amount was entrusted to the couple as stated by PWs. 2 and 12. It has come out in evidence that 15 sovereigns of gold ornaments were given to the deceased at the time of marriage. PW12 stated that some of the gold ornaments were sold away by the couple. PW2 stated that a gold chain which was precious to her daughter was also sold away which was released by her on payment of the requisite amount to PW12. The fact that the accused sold away gold ornaments belonging to the deceased is proved in evidence. Merely because he sold away the gold ornaments or expended money given to the couple at the time of marriage for his purpose, the same could not be treated as demand of dowry as contemplated under Section 304B of the IPC. It is also brought out in evidence that the accused was unhappy with the deceased for the reason that she was having ailments before the marriage. Such a contention was raised by the accused when he was questioned under Section 313(1)(b) of Cr.P.C. From the circumstances, it is clear that the deceased-wife allegedly committed suicide because of cruelty on her by the accused. Evidence showed that it was a case of extreme mental cruelty. 17. Ext. P2 suicide note was allegedly written by the deceased immediately before committing the suicide mentioning the circumstances for the extreme step she had taken. In Ext. P2 suicide note, she stated that no one was responsible for her death. When Ext. Evidence showed that it was a case of extreme mental cruelty. 17. Ext. P2 suicide note was allegedly written by the deceased immediately before committing the suicide mentioning the circumstances for the extreme step she had taken. In Ext. P2 suicide note, she stated that no one was responsible for her death. When Ext. P2 suicide note was sought to be marked, the learned counsel for the accused objected to the marking on the ground that Ext. P2 suicide note was not executed by the deceased. Section 32(1) of the Indian Evidence Act, 1872 makes it clear that, when a statement, written or verbal, is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question, such statement is relevant. Before a relevant statement is admitted, its authorship must be established in evidence. The primary evidence of a suicide note would be that of the writer and the statement contained in the note could be proved by several modes of proof of handwriting. Before admitting under Section 32(1) of Evidence Act, it must be proved that such statement was written by the person alleged. In fact, Ext. P2 suicide note was not proved in evidence. When it is not properly proved, it cannot be used to corroborate other evidence. However, Ext. P2 is a document produced by the prosecution in support of the prosecution case. Ext. P2 indicates that she died either at the instance of her husband or any other person. In the event of proving the statement in Ext. P2 as to the cause of death is admissible not only against the person who actually instigated the deceased to commit suicide but also against other persons concerned in the transaction which resulted in her death. The prosecution has not proved Ext. P2 suicide note. Hence it cannot be treated as a statement given by the deceased under Section 32(1) of the Evidence Act and the contents of the said note cannot be relied on as a dying declaration to discard other evidence in the case. The evidence of PWs. 1 to 3 and 12 would show that the accused ill-treated the deceased immediately after the marriage. The evidence of PWs. 1 to 3 and 12 would show that the accused ill-treated the deceased immediately after the marriage. The accused had a feeling that the deceased was suffering from a serious disease which fact was suppressed by the relatives of the deceased before the marriage. He had misappropriated gold ornaments belonging to her for his own purpose during the subsistence of a valid marriage. 18. The prosecution had produced Ext. P2 suicide note in which no allegation of any kind including demand of dowry had been made against the accused. Ext. P2 is not a record to show that the accused intended or had the necessary mens rea that the deceased should take the extreme step of committing suicide. Although the suicide note exonerates the accused, it has come out in evidence that the relationship between the deceased and the accused during the brief period of 59 days between the marriage and death was not cordial. 19. Section 304B and Section 498A deal with two distinct offences under the Indian Penal Code. These Sections are not mutually exclusive. In order to attract application of Section 304B of the IPC the essential ingredients are as follows:- "(i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance. (ii) Such a death should have occurred within seven years of her marriage. (iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband. (iv) Such cruelty or harassment should be for or in connection with demand of dowry. (v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death." 20. To attract the provisions of Section 304B of the IPC, 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 of dowry. In the case at hand, it is brought out that the dispute between the deceased and the accused was settled and the accused brought her back to the matrimonial home on 26.12.2006. When specific question was put to PWs. 1 to 3, no evidence was adduced against the accused that he had tortured or harassed the deceased in demand of more dowry after 26.12.2006. When specific question was put to PWs. 1 to 3, no evidence was adduced against the accused that he had tortured or harassed the deceased in demand of more dowry after 26.12.2006. The learned counsel for the appellant contended that the prosecution failed to prove that before the death of the deceased, she was subjected to cruelty or harassment in connection with the demand of dowry. In Dinesh v. State of Haryana, AIR 2014 SC (Supp) 1015], it is stated that the expression "soon before" is a relative term as held by this Court, which is required to be considered under the specific circumstances of each case and no straight jacket formula can be laid down by fixing any time of allotment. It can be said that the term "soon before" is synonymous with the term "immediately before". The determination of the period which can come within term "soon before" is left to be determined by courts depending upon the facts and circumstances of each case. But a three-bench in Rajinder Singh v. State of Punjab, AIR 2015 SC 1359 ] overruled this view and held that "soon before" is not synonymous with "immediately before". 21. In this case the accused married the deceased nearly two months back. But the deceased died under abnormal circumstances. Specific evidence was adduced by the prosecution in support of the plea that the death of the deceased-wife had taken place within two months from the date of marriage. It is true that the expression 'soon before her death' cannot be given a restricted meaning. However, no reliable evidence was adduced by the prosecution to prove that the accused demanded more dowry from the deceased at the time of marriage or after the marriage. In fact, he had misappropriated gold ornaments and valuables, if any, given at the time of marriage. There is nothing on record to show that he had demanded more dowry immediately after the settlement arrived at between the parties on 26.12.2006. PW2-the mother of the deceased was not present when she was taken back to her matrimonial home. She was not aware of the settlement between the parties. PW1 stated that the deceased was sent back to her matrimonial home on an undertaking from the accused that he would not ill-treat the deceased thereafter. PW1 further stated that he had an occasion to read Ext. P2 suicide note before lodging Ext. She was not aware of the settlement between the parties. PW1 stated that the deceased was sent back to her matrimonial home on an undertaking from the accused that he would not ill-treat the deceased thereafter. PW1 further stated that he had an occasion to read Ext. P2 suicide note before lodging Ext. P1 statement. However, he did not state anything touching Ext. P2 in Ext. P1. PW1 further stated that he had no knowledge regarding the fact that the accused ill-treated the deceased after 26.12.2006. He clarified that he had stated the facts known to him as on 26.12.2006 and he did not know the details thereafter. PW2-the mother of the deceased and PW3-one of the close friends of the deceased did not state anything touching the harassment meted out to the deceased after 26.12.2006. PW15-the Investigating Officer in this case did not conduct any investigation touching the alleged harassment meted out to the deceased after 26.12.2006. 22. On analysing the entire evidence, there is nothing on record to indicate that an offence under Section 304B of the IPC is made out in this case. It is true that a legal fiction has been created under Section 113B of the Evidence Act by Act 43 of 1986 with effect from 1.5.1986 which reads as under:- "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 has 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 304-B, Indian Penal Code, 1860." 23. Unless and until demand of dowry and the ingredients under Section 304B of the IPC is established by acceptable evidence, such death shall not be called as 'dowry death'. In the case on hand, there is no evidence to substantiate demand of dowry or subjecting the deceased to cruelty for, or in connection with dowry. The fact, that an amount of Rs. 1,00,000/- was paid as cheque to the deceased at the time of marriage, is not proved. The cheque allegedly issued by PW12 is neither recovered nor proved in evidence. The fact, that an amount of Rs. 1,00,000/- was paid as cheque to the deceased at the time of marriage, is not proved. The cheque allegedly issued by PW12 is neither recovered nor proved in evidence. It is the case of the prosecution that the original cheque for Rs. 1,00,000/- was returned back and PW12 issued a new cheque for Rs. 50,000/- and paid an amount of Rs. 50,000/- in cash thereafter. No evidence was adduced to prove that Rs. 50,000/- was paid in cash and Rs. 50,000/- was paid by way of cheque in lieu of cheque for Rs. 1,00,000/- initially entrusted. No evidence was adduced to prove that the cheque was collected by the accused. The prosecution failed to adduce any evidence to show that the accused demanded dowry from the deceased. There was no complaint of demand of dowry even in Ext. P2 allegedly written by the deceased soon before her death. There are material contradictions and serious omissions in the statement of PWs. 1, 2 and 12. From the evidence brought on record, it is clear that the deceased was subjected to mental cruelty and she was not happy with the accused at her matrimonial home. However, there is nothing to establish that this mental cruelty was for and in connection with demand of dowry. The prosecution has not succeeded in establishing the necessary ingredients under Section 304B of the IPC. Moreover, it is not established in evidence that the deceased has been subjected to cruelty on account of dowry. Hence, the presumption under Section 113A of the Evidence Act is not applicable so far as Section 304B of the IPC is concerned. The evidence adduced in this case would indicate that the disputes were settled on 26.12.2006 after which the deceased had committed suicide. But there was no evidence of further demand of dowry and torture. In the circumstance, the probability of existence of nexus between demand of dowry and suicide suffered a setback. It was unsafe and unjust to raise the presumption under Section 113A of the Evidence Act. But there was no evidence of further demand of dowry and torture. In the circumstance, the probability of existence of nexus between demand of dowry and suicide suffered a setback. It was unsafe and unjust to raise the presumption under Section 113A of the Evidence Act. When there is no direct evidence on record relating to the harassment by her husband demanding dowry and the allegation of demand of dowry was not made in the statement of PW2 who is none other than the mother of the deceased and PW1 who has no direct knowledge regarding the occurrence are not sufficient to prove the offence under Section 304B of the IPC and the presumption under Section 113A of the Evidence Act cannot be formed. Ext. P2 suicide note produced by the prosecution does not anywhere suggest that she was subjected to cruelty for non-fulfillment of demand of dowry. Hence, the presumption of dowry death would not be available in this case. 24. As indicated earlier, it has come out in evidence that the wife was subjected to cruelty as defined under Section 498A of the IPC. This is a case where the accused pressurized or harassed the deceased wife to part with her gold ornaments and sold away the same to PW12. The deceased was forced to come back home. Practically, the allegation is that the deceased committed suicide due to extreme cruelty at the matrimonial home. There is no material to support the defence that she had committed suicide due to the serious disease. Ext. D1 treatment records are not sufficient to indicate that the deceased was suffering from the serious illness. Fibroids in the uterus cannot be termed as a serious issue warranting the deceased to commit suicide. We have independently considered the materials brought on record. Having regard to Ext. P2 suicide note and other concomitant facts that have been brought on record, we are of the view that the accused cannot be held liable for the offence under Section 306 of the Indian Penal Code as well. The suicide note produced by the prosecution does not show that the appellant had in any way encouraged the deceased to commit suicide. Hence, the dictum laid down in K. Prema. S. Rao & another v. Yadla Srinivasa Rao & others, (2003) 1 SCC 217 ], Hira Lal & others v. State (Govt. The suicide note produced by the prosecution does not show that the appellant had in any way encouraged the deceased to commit suicide. Hence, the dictum laid down in K. Prema. S. Rao & another v. Yadla Srinivasa Rao & others, (2003) 1 SCC 217 ], Hira Lal & others v. State (Govt. of NCT), Delhi, AIR 2003 SC 2865 ] and Gurjit Singh v. State of Punjab, 2020 (1) KLD 223 (SC)] that even in case of charge under Section 304B of the IPC, the accused may be held guilty for the commission of offence under Section 306 of the IPC along with Section 498A of the IPC even in absence of specific charge is not applicable in this case. 25. Section 498A of the IPC contemplates inter alia that such a conduct besides being willful must result in the likelihood of driving the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) and the 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. From the evidence of PWs. 1 to 3 and 12, it is clear that the behaviour of the accused towards the deceased was that and it can be said that prima facie the offence under Section 498A has been made out. Evidence on record showed that the deceased was harassed by the husband right from the date of marriage for selling her gold ornaments. 26. It is true that "cruelty" is a common essential term to both the Sections and that has to be proved. The Explanation to Section 498A of the IPC gives the meaning of "cruelty". In Section 304B of the IPC, there is no such explanation about the meaning of "cruelty". But having regard to the common background to these offences, the meaning of "cruelty or harassment" will be the same as given in Explanation to Section 498A of the IPC under which "cruelty" by itself amounts to an offence and is punishable. Under Section 304B of the IPC, it is the "dowry death" that is punishable and such death should have occurred within seven years of the marriage. Under Section 304B of the IPC, it is the "dowry death" that is punishable and such death should have occurred within seven years of the marriage. No such period is prescribed in Section 498A and the husband or his relative would be liable for subjecting the woman to "cruelty" any time after the marriage. Further, a person charged and acquitted under Section 304B of the IPC can be convicted under Section 498A of the IPC without charge being there, if such a case is made out. In Smt. Shanti and another v. State of Haryana, AIR 1991 SC 1226 ] the Apex Court held as follows:- "6. Now we shall consider the question as to whether the acquittal of the appellants of the offence punishable under S. 498-A makes any difference. The submission of the learned counsel is that the acquittal under S. 498-A I.P.C. would lead to the effect that the cruelty on the part of the accused is not established. We see no force in this submission. The High Court only held that S. 304B and S. 498-A, I.P.C. are mutually exclusive and that when once the cruelty envisaged in S. 498-A I.P.C. culminates in dowry death of the victim, S. 304B alone is attracted and in that view of the matter the appellants were acquitted under S. 498A I.P.C. It can therefore be seen that the High Court did not hold that the prosecution has not established cruelty on the part of the appellants but on the other hand the High Court considered the entire evidence and held that the element of cruelty which is also an essential of S. 304B, I.P.C. has been established. Therefore the mere acquittal of the appellants under S. 498-A, I.P.C. in these circumstances makes no difference for the purpose of this case. However, we want to point out that this view of the High Court is not correct and Ss. 304B and 498-A cannot be held to be mutually exclusive. These provisions deal with the two distinct offences. It is true that "cruelty" is a common essential to both the sections and that has to be proved-. The Explanation to S. 498-A gives the meaning of "cruelty". 304B and 498-A cannot be held to be mutually exclusive. These provisions deal with the two distinct offences. It is true that "cruelty" is a common essential to both the sections and that has to be proved-. The Explanation to S. 498-A gives the meaning of "cruelty". In S. 304B there is no such explanation about the meaning of "cruelty" but having regard to the common background to these offences we have to take that the meaning of "cruelty or harassment" will be the same as we find in the explanation to S. 498-A under which "cruelty" by itself amounts to an offence and is punishable. Under S. 304B as already noted, it is the "dowry death" that is punishable and such death should have occurred within seven years of the marriage. No such period is mentioned in S. 498-A and the husband or his relative would be liable for subjecting the woman to "cruelty" any time after the marriage. Further it must also be borne in mind that a person charged and acquitted under S. 304B can be convicted u/S. 498-A without charge being there, if such a case is made out. But from the point of view of practice and procedure and to avoid technical defects it is necessary in such cases to frame charges under both the sections and if the case is established they can be convicted under both the sections but no separate sentence need be awarded under S. 498-A in view of the substantive sentence being awarded for the major offence under S. 304B." 27. This legal principle has been followed in Satpal v. State of Haryana, 1999 Crl.L.J. 596], Jitendra Prakash & others v. State of UP 2017 Crl.L.J. 623] and Tarsem Singh v. State of Punjab, AIR 2009 SC 1454 ]. 28. Since all the essential ingredients of Section 304B of the IPC is unproved in this case, the accused cannot be convicted under Section 304B of the IPC. Evidence on record clearly makes out an offence under Section 498A of the IPC against the accused only for which he can be convicted although he has not been charged under Section 498A of the IPC. The ingredients of Section 498A of the IPC are included under Section 304B of the IPC. Evidence on record clearly makes out an offence under Section 498A of the IPC against the accused only for which he can be convicted although he has not been charged under Section 498A of the IPC. The ingredients of Section 498A of the IPC are included under Section 304B of the IPC. Therefore, we are of the view that, even if there is no specific charge under Section 498A of the IPC, the appellant can be convicted for the said offence. 29. In the result, the appellant is acquitted for the offence under Section 304B of the IPC. He is convicted under Section 498A of the IPC and sentenced to undergo rigorous imprisonment for three years and also to pay a fine of Rs. 50,000/- (Rupees Fifty thousand only) and in default of payment of fine to undergo imprisonment for a period of six months more. The fine amount, if collected, in accordance with law, shall be released to PW2 (mother of the deceased) as compensation under Section 357(1) of Cr.P.C. Accordingly, this appeal is partly allowed and the conviction and sentence imposed by the trial court are modified in the aforestated terms.