NOORJAHANversusSTATE REP. BY D.S.P.

                           [2008] 6 S.C.R. 903


                              NOORJAHAN                             A
                                   v.
                        STATE REP. BY D.S.P.
                  (Criminal Appeal No. 706 of 2008)
                            APRIL 23, 2008
                                                                    B
         [DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.]

           Penal Code 1860:
            s.498A - Dowry death - Dowry demand by husband and
                                                                    c
      his relatives subjecting wife to cruelty - Death of wife due to
      strangulation - Incident witnessed by prosecution witness -
      Conviction of all the accused u/ss 498A and 302 respectively
      - Husband's aunt also convicted uls 498A - Upheld by High
      Court - Challenge to, by aunt - Held: There was no evidence
      to show that aunt made any demand or was present when dowry D
      demand was made - Hence, her conviction order set aside.
           s. 498A - Object of - Held: Is to combat the menace of
      dowry death and cruelty.
          .. According to the prosecution case, A1 was married E
      to the deceased-wife. After the marriage, A1 and his
      relatives, ill treated the. deceased on account of dowry
      demand. On the fateful day, the husband and his brother
      strangulated the deceased with rope and his sisters
      caught hold of both the arms. The close relative of the F
...   mother of the deceased witnessed the incident. The
      incident took place within one year of the marriage. FIR
      was lodged. Investigations were carried out. All the
      accused were convicted and sentenced u/s 302 and 498A
      IPC. Accused-A7, who was the aunt of the husband was G
      also convicted and sentenced u/s 498A IPC. High Court
      upheld her order of conviction. Hence, the present appeal
      by A-7.
           Allowing the appeal, the Court
                                 903                                H
    904     SUPREME COURT REPORTS                [2008] 6 S.C.R.


A      HELD: 1.1 Substantive Section 498A IPC and
  presumptive Section 1138 of the Evidence Act have been
  inserted in the respective statutes by Criminal Law
  (Second Amendment) Act, 1983. Section 498-A and
  Section 113-8 include in their amplitude past events of
B cruelty. Period of operation of Section 113-8 is seven
  years, presumption arises when a woman committed
  suicide within a period of seven years from the date of
  marriage. Consequences of cruelty which are likely to
  drive a woman to commit suicide or to cause grave injury
c or danger to life, limb or. health, whether mental or physical
  of the woman is required to be established in order to
  bring Home the application of Section 498A. Cruelty has
  been defined in the Explanation for the purpose of Section
  498A. Sections 3048 and 498A, IPC cannot be held to be
  mutually inclusive. These provisions deal with two distinct
0
  offences. It is true that cruelty is a common essential to
  both the Sections and that has to be proved. The
  Explanation to Section 498A gives the meaning of 'cruelty'.
  [Paras 8, 9 and 11] [908-F, G, H; 909-A, G, H; 910-A; 8]
E      2. With regard to the appellant-A-7, PW-1, mother of
  deceased stated that when she went to the place of her
  daughter, appellant was present alongwith A-1 and A-2.
  The said A-1 demanded jewels and presentation of
  Rs.5,000/- for Ramzan. She accepted that she told A-1 and
F A-2 that she will send the same within a week. The next
  statement of A-7 that two months' time will be sufficient
  for offering the presentation is very significant. In other
  words, she did not make any demand for dowry. That
  aspect has been accepted by PW-1. Significantly, in her
G cross examination PW 7 admitted that appellant is
  residing at Coimbatore for the last 35 years; and that while
  she went to the house of her daughter, she (appellant)
  was not present. Therefore, there is no evidence to show
  that appellant was either present when the demand was
H made or she herself made any demand. Thus, the
        NOORJAHAN v. STATE REP. BY D.S.P.                     905
             [DR. ARIJIT PASAYAT, J.)

prosecution failed to establish the accusations against A
the appellant. Therefore, her conviction cannot be
maintained and is set aside. [Paras 13 and 14] [910-F, H;
911-A, B]
     CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 706 of 2008.                                                     B
     From the final Judgment and Order dated 22.03.2007 of
the High Court of Madras in Criminal Appeal (MD) No. 283 of
2004 (

     K. Ragendra Chowdhary, V. Ramasubramanian for the               C
Appellant.
   V.G. Pragasam, S.J. Aristotle                  and    Prabhu
Ramasubramanian for the Respondent.
     The Judgment of the Court was delivered by                      D
     DR. ARIJIT PASAYAT, J. 1. Leave granted.
      2. Challenge in this appeal is to the judgment of a Division
Bench of the Madras High Court dismissing the appeal of the
appellant and upholding the conviction for offence punishable        E
under Section 498-A of the Indian Penal Code, 1860 (in short
the 'IPC') recorded and imposed by the learned District and
Sessions Judge, Karur in S.C. No.1/2004. Several persons who
had faced trial had preferred the appeal. Accused Nos.1 to 5
and 7 i.e. present appellant were found guilty of offence
punishable under Section 498-A IPC. Accused Nos.1 to 5 were          F
found guilty under Section 302 IPC.
     3. In appeal it was held that A-1 and A-2 were guilty of
offence punishable under Section 302 IPC and, therefore, their
conviction as recorded by the trial Court was affirmed. G
Conviction of A-3, A-4 and A-5 for offence punishable under
Section 302 IPC was set aside. In respect of offence punishable
under Section 498-A the conviction in respect of A-1 to A-5 and
A-7 was confirmed. Appellant is A-7.
     4. Background facts as projected by prosecution in a            H
    906       SUPREME COURT REPORTS                 [2008] 6 S.C.R.


                                                                           r
A   nutshell are as follows:

        The marriage between A-1 and Syed Ali Fathima
  (hereinafter referred to as the deceased) took place on
  22.4.2001. A-2 is the brother of A-1. A-3 and A-4 are the sisters
  of A-1 and A-5 is the mother and A-6 is the father of A-1. A-7 is
8 the aunt of A-1. PW-1 is the mother of the deceased. At the time
  of marriage, PW-1 paid Rs.5,000/- and three sovereigns of gold
  jewels and after a period of two months,A-1 went over to Mumbai
  seeking for a job. All the other accused ill treated the deceased
  stating that the dowry demand was not met. Prior to the
C occurrence, A-1 came from Mumbai. PW-1 was summoned. At
  that tim'e, there was a demand from A-1, A-2 and A-7, the
  appellant that 10 sovereigns of gold and a sum of Rs.5,000/-
  towards "Seervarisal" for Ramzan must be paid immediately.
  A-7, the appellant, who was present at that time informed PW-
D 1 that she can pay the said demand within a period of two
  months.
                                                                       +
        PW-2 is closely related to PW-1. On 6.3.2002 he came to
  Pallapatti and went to the house of PW-1. PW-2 was informed
  by PW-1 that there was a dowry demand from the side of the
E accused. A marriage was scheduled to take place in the house
  of a neighbour which is next to the house of A-1 and hence on
  8.3.2002, PW-2 came there between 11.00 a.m. and 12 noon.
  He was chatting with the said neighbour. Since PW-2 knew that
  there was a dowry demand, he decided to meet the deceased
F in her house for that purpose. When he was just getting down
  through the stair case, he was able to see the house of the
  deceased Fathima. A window was open through which he was
  able to see within 10 feet. At that time, A-1 and A-2 strangulated
  the deceased Fathima with a rope and A-3 and A-4 caught hold
G of both the arms. On seeing this, PW-2 was shocked. When he
  was witnessing the occurrence, A-2 saw PW-2. Immediately,
  PW-2 went over to the place of PW-1. But he could not meet
  anybody and he went over to his native place, Salem and              t
  returned on 9.3.2002.
H
              NOORJAHAN v. STATE REP. BY D.S.P.                  907
                   [DR. ARIJIT PASAYAT, J.]
...         When PW-1 went to the house of the accused, the wife .of    A
      A-2 locked from inside and informed that the deceased Fathima
      was upstairs. When PW-1 went upstairs, she found only the dead
      body of her daughter and PW-1 was able to see a Hgature mark
      around the neck of the deceased. PW-1 immediately came back
      and informed the relatives and proceeded to the Police Station.   B
      PW-13 the Sub Inspector of Police was on duty on the day of
      occurrence. PW-1 gave a complaint at about 1700 hrs which is
      marked as Ex.P-1 on the strength of which a case came to be
      registered in Crime No. 49/2002 under Section 174 of the Code
      of Criminal Procedure, 1973 (in short the 'Code'). Ex.P-11, the   c
      FIR was dispatched to the Court. On receipt of the copy of the
      FIR, PW-14 the Deputy Superintendent of Police took up
      investigation, proceeded to the scene of occurrence, made
      inspection and prepared Ex.P-2 the observation Mahazar and
      Ex.P-12 the rough sketch. He also sent a copy of the FIR to
                                                                        D
      PW-10, the Revenue Divisional Officer. PW-10, the Revenue
      Divisional Officer, on receipt of the copy of the FIR proceeded
      on the place and also conducted inquest on the dead body in
      the presence of witnesses and prepared Ex.P-9, the Inquest
      Report, wherein he opined that it was not a case of suicide but
      it was the death by homicide. He also made enquiries from the     E
      witnesses including the accused. Following the same, the dead
      body was subjected to post mortem by PW-9, the doctor
      attached to the Government Head Quarters Hospital, Karur, who
      opined that the deceased appeared to have died of asphyxia
      due to strangulation about 24-36 hours prior to autopsy.          F

           Originally, the case was registered under Section 174 of
      the Code. Later it was converted into one under Section 498-A
      and 302 IPC and the express FIR (Ex.P-13) was dispatched to
      the Court.
                                                                        G
            Pending investigation, A-1 to A-6 were arrested. A-2 came
      forward to give confessional statement voluntarily and the same
 j    was recorded by PW-13, the Deputy Superintendent of Police
      in the presence of witness, pursuant to which A-2 has produced
      M.0.1-Nylon rope which was recovered under a recovery             H
    908       SUPREME COURT REPORTS                     [2008] 6 S.C.R.

                                                                            r
A   Mahazar, Ex.P-1.

       · On completion of the investigation, the Investigating Officer            ...
  filed the report. The case was committed to the Court of
  Sessions. Necessary charges were framed. In order to
  substantiate the charges leveled against the accused, the
B prosecution examined 16 witnesses and relied upon 13 exhibits
                                                                            ,..
  and 3 material objects. On completion of evidence on the side
  of the prosecution, the accused were questioned under Section
  313 of the Code as to the incriminating circumstances found in
  the evidence of the prosecution witnesses which they denied
c as false. The accused.examined three witnesses who were all
  Medical Officers through whom 5 exhibits were also marked.

          The accused persons pleaded innocence and, therefore,
    trial was held and conviction was recorded and sentence
    imposed as noted above.
D
           5. In support of the appeal, learned counsel for the appellant
    submitted that there was no evidence so far as the present              +
    appellant is concerned to show that any demand for dowry was
    made by her. The witnesses had not stated that she was present
E   when the demand was made. Therefore, it is submitted that the
    trial Court and the High Court erred in directing her conviction.

        6. In response, learned counsel for the respondent-State
    supported the judgment of the trial Court and the appellate Court.

F         7. Section 498-A appears in Chapter XX-A IPC.

       8. Substantive Section 498-A IPC and presumptive
  Section 113-B of the Indian Evidence Act, 1872 (in short the
  'Evidence Act') have been inserted in the respective statutes
  by the Criminal Law (Second Amendment) Act, 1983 and by
G the Dowry Prohibition (Amendment) Act, 1986 respectively.

          9. Section 498-A of IPC and Section 113-B of the Evidence
    Act include in their amplitude past events of cruelty. Period of
    operation of Section 113-B of the Evidence Act is seven years,
    presumption arises when a woman committed suicide within a
H
              NOORJAHAN v. STATE REP. BY D.S.P.                      909
                   [DR. ARIJIT PASAYAT, J.j

      period of seven years from the date of marriage.                      A
           10. Section 498A reads as follows:
           "49BA: Husband or relative of husband of a woman
           subjecting her to cruelty- Whoever, being the husband or
           the relative of the husband of a woman, subjects such            B
           woma'h to cruelty shall be punished with imprisonme_nt for
           a term which may extend to three years and shall also be
           liable to fine.
           Explanation - For the purpose of this section 'cruelty'
           means -                                                          c
           (a) any wilful conduct which is of such a: nature as is likely
           to drive the woman to commit suicide or to cause grave
           injury or danger to life, limb or health (whether mental or
           physical) of the woman; or
                                                                            D
           (b) 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."                             E
           "1138: 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            F
           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 G
           of the Indian Penal Code (45 of 1860)."
              11. Consequences of cruelty which are likely to drive a
-;,
      woman to commit suicide or to cause grave injury or danger to
      life, limb or health, whether mental or physical of the woman is
      required to be established in order to bring home the application 1:-i
    910       SUPREME COURT REPORTS                  [2008] 6 S.C.R.


A of Section 498A IPC. Cruelty has been defined in the
  Explanation for the purpose of Section 498A. Substantive
  Section 498A IPC and presumptive Section 1138 of the
  Evidence Act have been inserted in the respective statutes by
  Criminal Law (Second Amendment) Act, 1983. It is to be noted
B that Sections 3048 and 498A, IPC cannot be held to be mutually
  inclusive. These provisions deal with 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 Section 498A gives
  the meaning of 'cruelty'.

C       12. The object for which Section 498-A IPC was introduced
  is amply reflected in the Statement of Objects and Reasons while
  enacting the Criminal Law (Amendment) Act 46 of 1983. As
  clearly stated therein the increase in the number of dowry deaths
  is a matter of serious concern. The extent of the evil has been
D commented upon by the Joint Committee of the Houses to
  examine the work of the Dowry Prohibition Act, 1961. In some
  cases, cruelty of the husband and the relatives of the husband        +
  which culminate in suicide by or murder of the helpless woman
  concerned, constitute only a small fraction involving such cruelty.
E Therefore, it was proposed to amend IPC, the Code of Criminal
  Procedure, 1973 and the Evidence Act suitably to deal effectively
  not only with cases of dowry deaths but also cases of cruelty to
  married women by the husband, in-laws and relatives. The
  avowed object is to combat the menace of dowry death and
F cruelty.
        13. So far as the present appellant is concerned, the
  evidence is inadequate to show that she was party to any
  demand for dowry. In fact, PW-1 stated that when she went to
  the place of her daughter appellant was present alongwith A-1
G and A-2. The said A-1 demanded jewels and presentation of
  Rs.5,000/- for Ramzan. She accepted that she told A-1 and A-2
  that she will send the same within a week. The next statement
  of this witness is very significant. She (appellant) told that two    '
  months' time will be sufficient for offering the presentation. In
H other words, she did not make any demand for dowry. That
              NOORJAHAN v. STATE REP BY D.S.P.                  911
                   [DR. ARIJIT PASAYAT, J.]
i
    aspect has been accepted by PW-1. Significantly, this witness      A
    in her cross examination had admitted that appellant is residing
    at Coimbatore for the last 35 years She has categorically
    admitted that while she went to the house of her daughter, she
    (appellant) was not present. Therefore, there is no evidence to
    show that appellant was either present when the demand was         B
    made or she herself made any demand.

          14. Above being the pm;ition, the prosecution has failed
    to establish the accusations against the appellant. Therefore,
    her conviction cannot be maintained and is set aside. She was
    released on bail by order dated 22.2.2008. In view of the order    C
    of acquittal, bail bonds shall stand discharged.

         15. The appeal is allowed.
    N.J. \;                                        Appeal allowed


+