Criminal appeal no. - 368 of 1990 decided on November 13, 1990
Bench- Justice S.R. Pandian & Justice K. Jayachandra Reddy
The deceased Smt. Kailash was married to Sat Pal April 18, 1987. Acused no. 1 Smt. Shanti is the mother in law of the deceased and other apalent id Smt Krishna wife of brother of Sat Pal, who was another inmate. It was alleged that these two accused persons had been harassing the deceased sincde the time she came to the house after geting married for not bringing a television and a scooter as a part of the dowry and treated her with cruelty. They also misbehaved with the father and the brother of deceased. Later, the father was also pushed out of their house. On april 26, 1988, at 11 p.m. the father of the deceased came to know that the deceased had been murdered and had been cremated by the two ladies with the help of three other persons.A report was given and the police could only recover bones and ashes. Then investigation was done and a chargesheet was filed.
The Additional Sesions Judge who tried all the 5 convicted appellants under 304-B IPC and sentenced each of them to life imprisonment under Section 201 of IPC, sentenced to undergo punishment for 1 year and pay fine of Rs. 2000 each and also under section 498-A IPC to two years rigorous imprisonment and fine of Rs. 3000. The other accused were acquitted.
The two apelants preferred an appeal to High Court and the same was dismissed. The High Court, However, set aside the conviction under 498-A of IPC but confirmed it under Section 304-B of IPC.
It has been stated that High Court has acquitted the appellants punishable under 498-A would itself indicate that the prosecution case regarding cruelty is not accepted and consequently the death cannot be pone of ‘dowry death’. In the absence of clear prof of cause of death one canot presume that the death ocured in unnatural circumstances.
The prosecution has established his arguments beyond reasonable doubt that the appellants treated the acused cruelly and that dsuch cruely was for demand of dowry. Under these circumstamces Section 304-B is attracted. It is an admited fact that the death ocutred within seven years of marriage, therefore the esentials for dowry death are fulfilled.
From the evidence of father, mother and brother it is clear that the body was hurriedly cremated. Under these circumstamces the presumption under section 113-B is attracted. The accused examined the defence witness to rebut the presumption and to show that the deceased suffered heart attack but no material was placed to show the same previously. If it was a natural death there was no need for them act in an unnatural manner and creamte the body without even informing the parents. There is absolutely no material to show even remotely that it was a natural death.
Therfore, it was a natural death either homicidal or suicidal. In such a case Section 304-B is attracted and this position is not disputed. Therefore, prosecution has established that the crime has been commited punishable under 304-B beyond reasonable doubt.
So, High Court considered the entire evidence and held that the element of cruelty , which is also an important part of section 304-B is established. Therefore, mere acquital of appellants under 498-A doesn’t make a difference.Here, the view of the high court that the two sections are mjutually exclusive is not correct as these sections deal with two distinct offences.
It was held by Justice Jayachandra Reddy that this is a case of dowry death. Cruelty is a common essential for both these offences – Dowry death under Section 304-B and Cruelty under Section 498-A of the IPC. These sections are not mutually exclusive. These provisions deal with two distinct provisons. The accused charged but acquitted under section 304-B can be convicted under 498-A even in the absence of any charge under 498-A. So, the acquital under 498-A will not prevent finding conviction under 304-B. It was also stated by the cpurt that to avoid technical defects, a beter practice would be to frame charges under both the sections and also to convict under both thoughno seperate sentence would be awarded under 498-A in view of substantive sentence being awarded got the major offence under 304-B.
As far as the sentencing is concerned, there is no evidence as to the cause of death nbut the cruelty as on the part of these two apelants is established but in bringing about the death there is no evidence as to thed actual part played by them. Under these circumstances, a minimum sentence of seven years with rigorous imprisonment would serve the ends of justice rather tha life imprisonment under section 304-B IPC.
What I concluded after reading this judgement is the comparison between Section 498-A and 304-B of IPC. The explanation of crueltyis given under 498-A but in sectio n 304-B there is no such explanation but having tregard to the same background to these offences cruelty and harassment has to be taken to be the same as in explanation to 498-A under which cruelty in itself ampounts to an offence and is punishable.
Under 304-B it is dowry death that is punishable and such death should have ben occured within seven years of marriage. No such period is mentioned in 498-A and the husband or his relative be liable for subjecting women to ‘cruelty’ ant time after marriage. A person charged and acquitted under 304-B can be convited under 498-A without a charge being there and vice-versa is also true. I think that Supreme Court while charging the accused under 304-B gave a beter reasoning for the same. The difference between the two sections has been expplained beautifully by the court.