Paulson @ Paulpi and Mary v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **WEDNESDAY, THE 13TH DAY OF NOVEMBER 2019 / 22ND KARTHIKA, 1941** ## **CRL.A.No.804 OF 2003** **AGAINST THE JUDGMENT IN SC 19/2000 DATED 28-05-2003 OF ADDITIONAL DISTRICT COURT (ADHOC), ERNAKULAM** ## **APPELLANTS/ ACCUSED NOS 1 & 2 :** **1 PAULSON @ PAULPI, AGED 32 YEARS, S/O.PULOSE, PARATHIPILLIVEEDU, KARUKAPPILLY KARA, AIKARANAD SOUTH VILLAGE. 2 MARY, W/O.PAULOSE, AGED 56 YEARS, PARATHIPILLIVEEDU, KARUKAPPILLY KARA, AIKARANAD SOUTH VILLAGE** **BY ADVS. SRI.P.VIJAYA BHANU (SR.) SRI.P.M.RAFIQ SRI.V.C.SARATH** ## **RESPONDENT/ COMPLAINANT :** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **(CRIME NO.135/1999 OF PUTHENCRUZ POLICE STATION)** ## **BY SR.PUBLIC PROSECUTOR SRI.M.S.BREEZE** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 1311-2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.804 OF 2003** 2 ## **JUDGMENT** This appeal is filed against the judgment dated 28.05.2003 in S.C. No. 19 of 2000 of Addl. Sessions Court (Adhoc-I), Ernakulam. Appellants are accused Nos. 1 and 2 of Crime No. 135/1999 of Muvattupuzha Police Station for an offence punishable under Section 304B r/w Section 34 of IPC. 2. The case of the prosecution is as follows: The first appellant married deceased Sheela, daughter of PW1 and the marriage was solemnized in St. George Jacobite Church as per their religious rights. It is alleged that the deceased was given cash ornaments worth Rs.1,00,000/- as her share. Two male children were born in that wedlock. It is also alleged that after six months of marriage, the appellants being the husband and in-laws of the deceased Sheela, started illtreating her, by demanding more dowry and as she was unable to suffer the ill treatment, she went to her parents' home. Even though various conciliation talks were made, nothing materialized and that the appellants continued with the illtreatment. Thereafter, on 06.06.1999, at about 7 p.m., she gave poison to her two years old son and consumed the same **CRL.A.No.804 OF 2003** 3 herself at the house of the first appellant. Eventhough both of them were taken to the hospital, Sheela died on 10.06.1999 at about 3.30 a.m and her son expired on 12.06.1999 at about 6.45 a.m. 3. On the side of the appellants, PWs 1 to 29 were examined and Exts. P1 to P19 and MOs I to III were marked. The defence did not adduce any evidence. 4. The learned Sessions Court, Adhoc-I, Ernakulam, as per judgment dated 27.05.2003 in S.C. No. 19 of 2000, found the appellants guilty of the offences and the appellants 1 and 2 were sentenced to undergo rigorous imprisonment for seven years under Section 304B IPC. Aggrieved by the same, this appeal has been filed. 5. The learned counsel for the appellants contended that the court below went wrong on the interested testimony of PWs 1, 2 and 3, who are father, brother and mother of the deceased Sheela. He has also contended that the court below failed to take note of the fact that PWs 1 to 3 during their examination before court have made many improvements to the statement given to the police. The court below ought to have considered the fact that the deceased Sheela was not admitted in any hospitals due to any brutal act on the side of the appellants. He **CRL.A.No.804 OF 2003** 4 has further contended that the evidence adduced by PW25 is unbelievable and nothing was brought out by the prosecution to invoke Section 304 B of IPC. 6. In fact, the crime was registered under Section 498A IPC r/w Section 34 IPC. Thereafter, the offence was altered to Section 304B r/w Section 34 IPC. Initially, the investigation was done by the Circle Inspector of Police, Puthencruz. Subsequently, the investigation was conducted by the Deputy Superintendent of Police, Muvattupuzha, who submitted the final report before the Judicial First Class Magistrate-I, Muvattupuzha. Thereafter, the case was committed to the Sessions Court, Ernakulam. The Principal Sessions Judge took cognizance of the case and numbered as S.C. No. 19 of 2000 and it was made over to the Vth Additional Sessions Court, Ernakulam for trial and disposal. 7. The court below has mainly relied on the testimony of father, mother and brother of the deceased Sheela, who were examined as PWs 1 to 3. PW4 is the cousin of PW1. PW5 is his brother. Some of the neighbours were examined as PWs 6, 8 and 19. PW7 is an Advocate residing near the house of appellants 1 and 2. PWs 9 and 10 are the neighbours of the accused. PWs 11 and 12 are the two persons said to have **CRL.A.No.804 OF 2003** 5 mediated in the dispute between the first appellant and the deceased. PW17 has given evidence to the effect that he was there when Sheela was taken to the hospital. PW20 is the Causality Medical Officer, Medical Mission Hospital, Kolencherry, who proved Exts.P8 and P9 certificates. PW21 is the Doctor who proved Ext.P10 certificate. The first ingredient as contemplated under Section 304B of IPC is that the death of a woman should be caused due to burns or bodily injury or occurs otherwise than under normal circumstances. PW22 is another Doctor who conducted postmortem on the body of Sheela and who proved Ext.P11 postmortem certificate. In fact, the death of deceased Sheela and her child was not disputed. In this connection, it is very important to analyze the evidence adduced by PWs 1 and 3, the father and brother of the deceased Sheela. They deposed that the first appellant and the deceased Sheela got married as per the religious rites and customs in the year 1993 at St. George Church, Veloor. Anyway, the appellants have not challenged the marriage of the deceased Sheela with the first appellant. During 313 statement also, the appellants have admitted that the first appellant is the husband of the deceased Sheela. The marital relationship between the first appellant and the deceased Sheela was admitted by the defence side. When **CRL.A.No.804 OF 2003** 6 the marriage is proved, then only the question of offence under Section 304B or 498 A IPC is attracted. 8. Section 304B of IPC is specifically enacted to protect the life and limbs of a married woman and so, before any prosecution can be launched under these provisions, it must be shown that the victim woman was a legally wedded woman, and death was direct consequence of cruelty in relation to demand of dowry by the husband or his relatives within seven years of the marriage and then the accused can be convicted under Section 304B of the IPC. 9. In order to attract the offence of Section 304B of IPC, the essential ingredients are as follows: 1. The death of a woman should be caused by burns or bodily injury or otherwise than in normal circumstances. 2. Such a death should have occurred within seven years of marriage. 3. She must have been subjected to cruelty or harassment by her husband or any relative of her husband. 4. Such cruelty or harassment should be for or in connection with demand for dowry. 5. Such cruelty or harassment is shown to have meted out to the woman soon before her death. **CRL.A.No.804 OF 2003** 7 10. If all the aforesaid ingredients are successfully proved by the prosecution, then the offence under Section 304B of IPC will be attracted. Section 304B of IPC is contemplated only to prevent the cruel attitude of the husband on the wife in connection with dowry. 11. It is an admitted fact that the deceased Sheela and the first appellant got married on 03.05.1993. As per the evidence of PW3, Sheela and her younger son died. PW17 has deposed that on 06.06.1999, after 7.30 p.m., he heard hue and cry from the house of the first appellant. Immediately, he rushed to her house along with his son and found that the deceased Sheela and her younger child were taken out of the house in serious condition and were taken to the Medical Mission Hospital, Kolencherry. PW10 has deposed that the deceased Sheela and her child were taken to the hospital in his jeep. PW20 has deposed that on 06.06.1999, at 9 p.m., he examined Sheela and her child, Binoy at the causality. They were brought her with an allegation of poisoning. Exts.P8 and P9 are the certificates issued by PW20. Ext.P19 is the certificate issued by PW21 stating that Sheela was admitted in the hospital on 06.06.1999 with an allegation of Organo Phosphorous Poison. PW22, the doctor who conducted the postmortem on the body **CRL.A.No.804 OF 2003** 8 of the deceased Sheela, issued Ext.P11 certificate. The certificates were produced to prove that the deceased Sheela had consumed poison and died due to Carbo Furan and Organo Phosphorous poison. 12. The main witnesses are PWs 1 and 3, the father and brother of the deceased Sheela. They have given evidence to the effect that the deceased Sheela was subjected to cruelty on the side of the appellant. There is no dispute with regard to the death of Sheela, who died on 10.06.1999. PW22 conducted postmortem on the body of Sheela on 10.06.1999 and issued Ext.P11 certificate. This certificate would go to show that Sheela consumed poison and she died due to carbo furan poison. PW23 is the doctor, who conducted postmortem on the body of the child namely Binoy, aged two years on 12.06.1999 and issued Ext.P13 postmortem certificate. The doctor has opined that the child died due to the combined effect of carbo furan and organo phosphorous poison. PW26, the Sub Inspector of Police, has seized MOs 1 to 3 from the place of occurrence and those items were sent for chemical analysis, and the report as evidenced from Ext.P18 would reveal that Carbo furan and organo phosphorous poison were detected in MOs 1 to 3. There was an attempt on the part of the defence to show that the **CRL.A.No.804 OF 2003** 9 deceased Sheela and the child had consumed poison accidentally, but not deliberately. They have made a case to the effect that the poison was similar to the appearance of sugar and they might have accidentally consumed it assuming that it was sugar. But, this fact had not been proved. As per Ext.P8, the colour of the sugar and furan is different so that the suggestion as forwarded on the side of the defence is not correct and it is proved by the prosecution that Sheela and the child had died due to poisoning by consuming carbo furan and organo phosphorous poison. Hence, the death was proved by the prosecution that it was due to poisoning. It is also proved by the prosecution that Sheela has committed suicide after giving poison to her son Binoy. No burn injury or grave injury was noted on the body of the deceased Sheela. The prosecution has no case that poison was administered by the appellants. It is proved by the examination of doctor that the deceased Sheela consumed poison as mentioned in Ext.P18 certificate and accordingly she committed suicide. 13. Now the question to be considered is whether there is any convincing evidence to prove that Sheela has committed suicide due to the cruelty exerted on the side of the appellants. PW1, the father of the deceased, had given Ext.A1 statement on **CRL.A.No.804 OF 2003** 10 07.06.1999 alleging that the appellants have been harassing his daughter Sheela by demanding more dowry and the appellants have found fault with each and every acts of the deceased. Further it was deposed that there was frequent quarrelling between the deceased and the appellants while she was residing along with them. Due to quarrel, sometimes Sheela would come back and stay with PW1. Further he has deposed that the main allegation against the victim was that she was not doing sufcient work in her residence and that the frst appellant would get more dowry if he would marry another lady. It is also the case of the PW1 that the first accused and the deceased stayed at the house of the PW1 for about 22 days as they could not live in their family house because of the harassment on the side of the 2[nd] appellant. Accordingly, PW1 has constructed a small house in the property of the first appellant adjacent to the family house and he has also given evidence to the effect that the 2[nd] appellant used to spit on the food of the deceased and she was harassed several times by the 2[nd] appellant. When the quarrel exists, the neighbour and the priest of their church interfered in the matter and settled their disputes. The defence has a case that PW1 has not given any statement as per his evidence adduced before the court. **CRL.A.No.804 OF 2003** 11 Even though PW1 has narrated several instances of harassment meted out by the deceased while she was residing along with the appellant, he has not specified any incident separately and he has also raised another case that dissatisfied by the dowry brought by Sheela, the appellant used to harass her verbally. 14. Immediately after the incident, PW1, the father of the deceased Sheela has given a statement before the police stating that she was harassed verbally, and mentally by the appellants. In fact, PW1 has no case that the deceased Sheela was physically assaulted by the appellant. PW2 is the wife of PW1. She is none other than the mother of Sheela. She has also given evidence to the effect that Sheela was harassed by the appellant due to lack of dowry. In fact, the 2[nd] appellant had got another daughter to be given in marriage and for that purpose, they have asked dowry and gold ornaments from the deceased Sheela. Further, it was a case of PW2 that the deceased was ill-treated at the instigation of the 2[nd] appellant and she has also stated that Sheela used to say that she would be beaten to death, if more dowry was not given. According to her, on the strength of the complaint of the deceased Sheela, they had filed a complaint before the Puthencruz police on three occasions; but on all those occasions, the matter was **CRL.A.No.804 OF 2003** 12 compromised between the parties due to the interference of neighbours. It is important to note that no witness was cited to prove that they have made complaints before the Puthencruz Police Station. No documents was brought from the Puthencruz Police Station to prove this fact also. So, from the evidence of PWs 1 and 2, it is quite clear that there are some wear and tear in the family of the deceased Sheela and the appellants and they have no case that Sheela was brutally attacked physically, and mentally by exerting cruelty. Cruelty is defned as grave injury which enables the victims not to live along with the appellants and which creates grave mental and physical harassment which drive her to commit suicide. Here, the evidence of PWs 1 and 2 is that the appellants used to ask her to bring more dowry and that the second appellant used to spit on the food supplied to her. But, no witnesses have seen this fact except the evidence adduced by PWs 1 and 2. 15. PW3 is the son of PWs 1 and 2. According to him, the first appellant used to ask money for remitting chitty instalment. But this fact has not been stated before the police and according to them, after consuming alcohol, the frst appellant used to beat Sheela. Accordingly, they have made a complaint before the police Station. But, this fact has not been **CRL.A.No.804 OF 2003** 13 proved except the oral evidence of PWs 1, 2 and 3. 16. PW4 is the cousin of PW1. According to her, she used to meet Sheela occasionally and she used to say that whenever she used to take food, the appellants would create some problems and thereby not to allow Sheela to have her food. The first appellant used to send Sheela to her house for obtaining money and if she failed to bring money, he would beat her. She has also stated that there was harassment on the side of the appellants as stated by deceased Sheela. 17. The brother of PW1 deposed that he is residing near the house of PW1 and after the marriage of Sheela, he used to see her and on those occasions, she used to tell about her life at her matrimonial home and she had told him that the appellants used to manhandle her by saying that the dowry brought by her was not sufficient. He further deposed that on one occasion, the first appellant tried to kill her by pressing pillow on her face. According to him, he used to lend money to his brother when the first appellant picked up quarrel demanding money at the residence of PW1. But, he is also related to PW1 and as per his evidence, he is not having sufficient financial stability as he is running a petty shop. It is important to note that PWs 1 to 3 have no case that there was an attempt on the part of the first **CRL.A.No.804 OF 2003** 14 appellant to kill the victim by pressing pillow on her face. 18. PW6, a neighbour of PW1, deposed that she used to see Sheela at her parental house and according to her, Sheela used to come back from the matrimonial house after quarrelling with the appellants and she has also given evidence to the effect that the police has instructed her to give evidence accordingly and she is only a partisan witness, who was acted on the decision of the police. Another neighbour, Eliamma, was examined as PW8. According to her, she used to see Sheela at her parental house occasionally and Sheela used to tell her that she came back as the appellants picked up quarrel with her in connection with dowry and gold. Further, she has admitted that she came along with PW1 and he had paid bus fare also. So, the lower court has believed her version by stating that she was deposing the truth. Eventhough she has stated that there was quarrel between the deceased and the appellants, nothing was brought out through her examination to prove that the deceased was brutally manhandled by the appellants in connection with dowry or any property to be brought from her house. Further, PWs 1, 2 and 3 had no case that there was physical harassment. The remote chance of quarrel is not sufficient enough to constitute an offence under Section 304B of **CRL.A.No.804 OF 2003** 15 IPC. There is no evidence to show that the the decased was subjected to continuous ill-treatment or harassment. Absolutely, there is no evidence to prove that the deceased Sheela or her relative filed any complaint against the appellants. PW7 has deposed that there was usual wear and tear between the appellants and the deceased Sheela. ## 19. It is held in _**State of Kerala v. Mohanan Pillai**_ [1991 (2) ILR 430] that the first requirement to constitute the offence of dowry death is that the death of wife should have taken place within seven years of her marriage and such death should have occurred otherwise that under normal circumstances. Parliament would have considered the decimated potentiality of the spectre of dowry haunting the female partner beyond a certain period after married life or that heat of dowry issue would cool down in seven years time. Evenif death has any nexus with her previous sufferings, it cannot be dowry death in case her death was due to some disease. Death due to disease is normal death, even if aggravation of the disease could be attributed to her mental sufferings. The second requirement is that the accused should have subjected the deceased to harassment or cruelty with demand for dowry. The third requirement is that such harassment or cruelty should have **CRL.A.No.804 OF 2003** 16 been inflicted soon before her death. So, the words 'soon before her death' would mean that it is not enough if harassment or cruelty was caused to her during the beginning or mid period of the connubial life. Death must have been the proximate consequence of harassment or cruelty inflicted on the wife. Otherwise, the Section will not be attracted. So, the prosecution has to prove that soon before the death, the harassment and cruelty should have been inflicted on her. But, there is no evidence to prove that immediately before her death, she was subjected to cruelty or harassment. The prosecution could not able to substantiate the date and the time of incidents. There is no evidence to prove that the deceased was brutally attacked by the appellants. On failure of prosecution to prove the above factum, the prosecution is disabled from canvassing for invocation of the presumption envisaged in Section 113B of the Evidence Act also. 20. Generally suicide can be done on self motive and impulses as well as by the instigation of another person. When the suicide was committed by 'self motive, it cannot be a ground to convict another person. The prosecution has to establish that deceased sheela was subjected to continuous cruelty and harassment by the appellants in connection with **CRL.A.No.804 OF 2003** 17 dowry. The evidence of relatives and neighbours of deceased that she used to stay back to residence due to demand of dowry is not sufficient enough to establish the guilt of appellants under Section 304 B of IPC. None of the witnesses has stated that any sort of such incident was occurred soon before her death. The prosecution must allege that soon before her death an incident was occurred and it has given an incitement to Sheela to end her life. So, the alleged incidents of harassment as deposed by PWs1 to 4 is remote in sense. It will not be a sufficient ground to disturb the mental equilibrium of deceased Sheela. So, the death was caused on account of the fact based on some other reasons. Further, she has left along with her youngest son. Her eldest son is alive. 21. PWs 11 and 12 are another two important witnesses. PW11, who had mediated in a dispute between PW1 and the appellants in connection with dowry of Sheela. According to him, mediation was effected about two years back before the death of Sheela. PW11, deposed that he went for the mediation talk along with the police officer of Puthencruz Police Station and that fact was not stated to the police and no evidence has been brought out to prove this fact. Further, after the mediation talk, the prosecution has not narrated any sort of incidents **CRL.A.No.804 OF 2003** 18 before the death of Sheela. 22. PW12 has deposed that he interfered in the matter when Sheela was at her father's house in connection with the problems with the appellants. He has also stated that one day the appellant came and took away the breast feeding child of Sheela and on that day, he had gone along with PW1 to the house of PW7, Adv. T.K.Baby had discussed about the matter and the problem was solved. But, this fact has not been admitted by PW7. As per the evidence of PW7, he is the cousin of the first appellant. As per evidence of PW2, the first appellant used to harass Sheela in connection with financial problem. The cross examination of PW12 reveals that he had not stated to the investigating officer regarding taking away of the small child by the first appellant. The evidence which was given by PW12 is deviating from the case of the prosecution. Therefore, the lower court has held that it is difficult to believe the interference of PW12 in the affairs of the deceased and the first appellant. 23. Another neighbour of PW1 was examined as PW18, who is residing about 35 meters away from the house of PW1. As per his evidence, Sheela used to tell him about the harassment of her husband and mother in law and she told him **CRL.A.No.804 OF 2003** 19 that the first appellant used to beat her demanding more dowry and the second appellant used to support her son. He has also given the evidence as per the prosecution that the 2[nd] appellant used to spit on the food given to the deceased. During cross examination, PW8 has made reference regarding the injury sustained by the deceased. According to the defence case, there was no possibility of revealing the misfortunes of the deceased Sheela to PW18. Anyway, PW18 is also a close neighbour of PW1. 24. PW25 is a priest, who is a relative of the uncle of the deceased. He has given evidence to the effect that during one occasion, Sheela came with her small child from her husband's house wearing the dresses worn by her in the house. He has deposed that dowry and other financial matters were the main reasons for harassment. Though he has not given the specific date and the instances, he has deposed about his knowledge about the condition of the deceased Sheela at her matrimonial house. Any way, the close relatives of the PW1 was examined and they have attempted to give evidence to the effect that there was ill-treatment on the side of the appellants and it is a case advanced by the prosecution that in connection with the dowry, the appellants have harassed the deceased Sheela. So, **CRL.A.No.804 OF 2003** 20 from the evidence, it has come out that there was some verbal harassment at the matrimonial residence of the deceased. PW7, an Advocate, has given evidence that there were some wear and tear in the family and quarrel between the appellants and the deceased Sheela. The marriage of decased was on 03.05.1993 and she committed suicide after six years of her marriage i.e., 06.06.1999. There is no evidence to prove that soon before her death, she was harassed brutally or physically or caused mental cruelty. 25. On the strength of the evidence adduced by the prosecution, the lower court has held that the appellants were greedy for dowry and they have harassed the deceased Sheela for getting more dowry. Accordingly, the presumption under Section 113 B of the Evidence Act is attracted. It has also stated that eventhough certain incidents were occurred on different occasions, it was during the course of conduct of the appellants 1 and 2 with the deceased. In the light of that, the lower court has invoked Section 113 B of the Evidence Act and found that the prosecution has succeeded in proving that the deceased has committed suicide due to the continuous harassment on the side of the appellants. PW7, an Advocate, who is the cousin of the first appellant has given evidence to **CRL.A.No.804 OF 2003** 21 the effect that the deceased Sheela used to pick up quarrel with the first appellant even for slightest provocation. He had an occasion to talk with the appellants and the deceased at the instance of PW1. He has deposed that there was no serious issues involved in the quarrel between the first appellant and the deceased. But, the lower court has discarded his evidence by stating that he is very close relative of the first appellant. The findings entered by the lower court was without analysing the evidence in its correct perspective. 26. Now the next question to be considered is whether Section 304 B read with Section 34 of the IPC is attracted in this case. PW6 is the neighbour of PW1. She was examined to prove that the victim had told her about the quarrel occurred in the matrimonial house in connection with dowry and gold. During cross examination, she has submitted that she has come along with PW1 who had paid her bus fare. PW6 has attempted to give evidence that the victim had suffered mental torture at her matrimonial residence. PW1 is a mediator. According to him, about two years before the death of the victim, he went for a mediation talk along with the police officer of Puthencruz police station. But, that fact was not stated to the police. PW12 has also deposed that he interfered in the matter when Sheela **CRL.A.No.804 OF 2003** 22 was at her father's house in connection with the quarrel with the appellants. He had stated that one day the first appellant came to her residence and took away her breast feeding small child. On that date, he had gone to the residence of the first appellant along with PW1 and accordingly the matter was solved. But none of the witnesses have stated any specific incidents which exerted on the side of the appellants. According to the prosecution witnesses, the victim used to say some complaints against the appellants. But, there is no evidence to prove that she was physically tortured by the appellants and further there is no evidence to prove that the victim had stated any specific overtact on the part of the appellants. If she was suffering from a grave nature of cruelty, definitely she would have made a complaint before the police authorities. Even though there was a case for the prosecution that complaints were given to the police station three times. But, the prosecution has failed to produce any of the complaint put forwarded by the victim before the concerned police station. The witnesses cited by the prosecution is the neighbours of PW1 and close relatives. According to the prosecution, due to the cruelty suffered from the matrimonial residence, the victim and the first appellant had shifted their residence and started residing separately. **CRL.A.No.804 OF 2003** 23 According to PW7, the deceased Sheela was a short tempered person and for simple reasons, she used to quarrel with the first appellant and used to come back to her residence and none of the witnesses have stated that the appellants have caused any physical assault so as to drive her away to commit suicide. PW18 is also another witness and she has also stated that there was torturing on the part of the appellants to bring more dowry and the allegation against the 2[nd] appellant was that she used to spit on the food of the deceased. But, the prosecution has failed to produce any medical records to show that the deceased had suffered any bodily injury due to the cruelty exerted by the appellants. Moreover, the prosecution has no case that the deceased was physically harassed by the appellants. PW25 is the priest uncle of the deceased Sheela. He has deposed that the deceased suffered torture at he hands of the appellants. According to him, the dowry and other financial matters are the main reason for harassment. The marriage between the first appellant and the deceased was solemnized on 03.05.1993. But, the incident was occurred on 06.06.1999. During that period, the deceased has not made any complaint regarding the cruelty exerted by the appellants. 27. As per the explanation to Section 498A, of IPC, **CRL.A.No.804 OF 2003** 24 cruelty means “(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 (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. 28. In this case, the charge was framed under Section 304B of the IPC. Then the burden is upon the prosecution to prove the guilt of the appellants. Even though the evidence of the witnesses have come out that the deceased was subjected to mental cruelty for a period of six years, no evidence was forthcoming to prove that before committing suicide, she was subjected to any imminent act of cruelty which prompted her to commit suicide. Under Section 304B, the prosecution has to establish that soon before the death, the deceased had undergone a grave nature of cruelty exerted by the appellants. 29. In support of the words used that “soon before the death”she was subjected to cruelty or harassment by her husband or any relatives of her husband for in connection with any demand or dowry,” the prosecution witnesses have deposed that the deceased used to say about the ill- treatment **CRL.A.No.804 OF 2003** 25 on the side of the appellants. But, no specific overtact was mentioned against the appellants and casual talk between the deceased and the witnesses does not prove that she was suffering from mental cruelty. 30. From the evidence of PWs 17 and 18, it has come out that there was a quarrel between the deceased and the first appellant so that she used to come and stay at her residence. After mediation, she would go back along with her husband. Even though PWs 17 and 18 have stated that they have mediated the matter and settled, it was not revealed as to what was the nature of the settlement. Evidently, the evidence adduced by the prosecution is not sufficient enough to prove that the deceased has committed suicide due to the embarrassment on the side of the appellants in connection with the demanding of dowry. No incident was narrated that “soon before death” or “immediately prior to that”, the deceased was subjected to grave nature of cruelty which prompted her to commit suicide. 31. In order to attract Section 304B of the IPC, there must be an evidence to prove that the deceased was subjected to grave nature of cruelty which caused danger to her life. No such evidence was forthcoming in this case. Therefore, I find **CRL.A.No.804 OF 2003** **==> picture [13 x 7] intentionally omitted <==** that the appellants are not liable to be convicted by invoking Section 304B IPC. In the result, this appeal is allowed and the appellants are acquitted of the charges levelled against them and the conviction and sentence ordered against them in S.C. No. 19 of 2000 on the files of the Additional Sessions Court (Adhoc-I), Ernakulam are hereby set aside. They are set at liberty, if their detention is not required in connection with any other case. The bail bond, if any, executed by them shall stand cancelled forthwith. Sd/- ## **ANNIE JOHN, JUDGE** _Rv_ / RKM