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PETITIONER: PAWAN KUMAR & ORS.

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT:       09/02/1998

BENCH: CJI, A.P. MISRA

ACT:

HEADNOTE:

JUDGMENT:                THE 29TH DAY OF FEBRUARY, 1998 Present :                  Hon’ble the Chief Justice                  Hon’ble Mr. Justice A.P.Misra U.R.Lalit, Sr.  Adv., Manoj  Swarup and  Sudhir Walia, Advs. with him for the appellants. Prem Malhotre and Altaf Hussain, Advs. for the Respondent                       J U D G M E N T      The following Judgment of the Court was delivered: A.P.MISRA, J.      For more  than a  century, inspite  of  tall  words  of respect for  women, there  has been  an onslaught  on  their liberties through  ‘bride burning’  and ‘dowry deaths’. This has caused  anxiety to  the legislators,  judiciary and  law enforcing agencies,  who have  attempted to  resurrect  them from  this   social  choke.   There  have   been  series  of legislations in  this regard,  without much effect. This led to the  passing of Dowry Prohibition Act in 1961. Inspite of this, large  number of  ‘brides burning’  and  dowry  deaths continued. To  meet this, stringent measures were brought in the  Indian   Penal  Code   and  the  Evidence  Act  through amendments. It  seems, sections  of society are still boldly pursuing this  chronic action to fulfil their greedy desire. Inspite of  stringent legislations,  such persons  are still indulging in  these unlawful  activities, not because of any shortcomings in  law but  under the  protective principle of criminal jurisprudence  of benefit of doubt. Often, innocent persons  are  also  trapped  or  brought  in  with  ulterior motives. This  places  an  arduous  duty  on  the  Court  to separate such  individuals from  the  offenders.  Hence  the Courts have  to deal  such cases  with  circumvention,  sift through  the   evidence   with   caution,   scrutinise   the circumstances with  utmost care.  The present  matter is one such where  similar questions  have been  raised,  including question of interpretation of the stringent law.      The three  appellants were  convicted for offence under Sections 306,  498-A and  304-B IPC.  Appellant No. 1 is the deceased’s husband,  No. 2  the father-in-law, and No, 3 the mother-in-law respectively.  The trial  court convicted  and sentenced appellant No.1 for offence under section 304-B for

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10 years  and a fine Rs. 500/, under section 306 for 7 years and a  fine of Rs. 200/- and under section 498-A for 2 years and a fne of Rs. 200/. Appellant Nos. 2 and 3 were convicted and sentenced   under  section 304-B for 7 years with a fine of Rs.  500/-, under  section 306 for 7 years with a fine of Rs. 200/-  and under  section 498-A  IPC for  2 years with a fine of  Rs.  200/-.  The  sentences  were  ordered  to  run concurrently. The  High Court maintained the convictions but reduced the  sentence form  10  years  to  7  years  so  far appellant No. 1 is concerned.      The brief facts of the case are :      Urmil (deceased)  and appellant  No.1 were  married  on 29th May,  1985. Appellant  No.1 was  working at Lucknow and had later  shifted to  Sonepat (Haryana).  According to  the prosecution case,  within a  few days  of the marriage Urmil returned home  and complained regarding demands of dowry for a refrigerator,  scooter etc.  by appellants.  These demands were reiterated  on subsequent  visits. On  account of  non- fulfilment of  these demands,  the  deceased  was  allegedly tortured and  harassed.  These  alleged  actions  ultimately contributed towards  a suicidal  death. It is not in dispute that she died of burn injuries on 18th May, 1987.      In April  1987,  Tara  Chand,  maternal  uncle  of  the deceased died.  Urmil (deceased)  and Appellant No.1 went to Shahdara (Delhi) to offer condolences. From there, Appellant No.1 returned and Urmil went to her sister’s place in Delhi. On 17th  May,  1987,  when  Appellant  No.  1  went  to  the deceased’s sister’s place to bring Urmil (the deceased) back to  Sonepat,   some  quarrel   took  place   between   them. Regardless, Appellant  No. 1  brought back  the deceased  to Sonepat. The  very   next day  i.e. on  the 18th  May, 1987, according to  the appellants,  at 9.30  a.m.  Joginder  Pal, (neighbour of  the appellant)  came to  appellant  No.2  and informed him  that smoke was coming out from the room on the first floor  of the  house. When  they reached  there,  they found Urmil  lying dead on the floor with burn injuries. The room was  full of  smoke. Later, the parents of the deceased arrived and  a post  mortem examination was conducted on the body of  the deceased.  The doctor  found that  the cause of death was  shock and  asphyxia as  a result of servere burns which were  ante-mortem and  were sufficient to causes death in the ordinary course of life.      Learned counsel  for the  appellants vehemently  argued with vehemence  that even  if all the evidence on record was taken into  consideration, no  offence could be made out. No clear finding  of suicide  had been recorded and in any case essential ingredients  of Section 304-B of IPC were lacking. The evidence  against appellants  No.2&3 was  flimsy, and in any case  their conviction  could not be sustained. Further, there was  no evidence  that  soon  before  her  death,  the deceased was  subjected to  cruelty or  harassment for or in connection with  any demand  of dowry. There was neither any demand of  dowry nor  was there any agreement at the time of marriage, which  is an essential ingredient to constitute an offence under  dowry death in terms of definition of ‘dowry’ as given  under Section 2 of the Dowry Prohibition Act, 1961 (hereinafter referred to as ‘the 1961 Act’). Unless there is an agreement  for dowry,  at the  time  of  marriage  or  in connection with marriage, it would not qualify to be a dowry within such definition, hence no offence under Section 304-B I.P.C. Merely  expressing the grouse of asking for fridge or TV would  not by  itself constitute to be a dowry within the said definition  in the  absence of  any agreement. Further, before applying  the demand  clause under  Section 304-B the evidence  has   to  be   within  the   scope   of   criminal

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jurisprudence, i.e.  to prove  guilt beyond  all  reasonable doubt. It  cannot be  based merely on suspicion, conjectures and surmises.      Let us see Section 304 I.P.C. The ingredients necessary for the application of Section 304-B are :-      [a]  When the  death of  a woman is caused by any burns           or bodily injury, or      [b]  occurs otherwise than under normal circumstances.      [c]  and the aforesaid two facts springs within 7 years           of girl’s marriage.      [d]  and soon  before her  death, she  was subjected to           cruelty  or  harassment  by  her  husband  or  his           relative.      [e]  this is in connection with the demand of dowry.      If these  conditions exist, it would constitute a dowry death; and  the husband and/or his relatives shall be deemed to have  caused her death. In the present case, it is not in dispute that  the deceased Urmil died of burn injuries, that she died otherwise than under normal circumstances, and that the death  was within  a period  of 7 years of marriage. The only consideration  has to be : whether she was subjected to any cruelty  or harassment by the appellants soon before her death, and  whether the  same was  for or in connection with any demand  of dowry.  In support  of prosecution case, Smt. Misro Devi,  mother of  the deceased,  PW-4  Trishala  Devi, sister of  the deceased, PW-5 Prem Chand Jain, father of the deceased, PW-6  Ram Gopal,  brother-in-law of  the deceased, husband of  PW-5,PW-7  were  examined.  On  perusal  of  the evidence of  PW-4 we  find that  the mother  of the deceased deposed that  within four  days following  the marriage, her daughter deceased  Urmil came  back to her and told her that her parents-in-law and husband were subjecting her to taunts for not  bringing a scooter and refrigerator as dowry at the time of  marriage. She  somehow  pacified  her  daughter  to return. Urmil  came back after two months and again told her mother that  her husband  in-laws were continuously taunting her daily,  maltreating her  and calling  her ugly  for  not bringing the  aforesaid goods  as dowry.  Admittedly,  these taunts were  uttered in  view of the lesser dowry brought by her. Even  after giving  birth to  a son, when she came back she again  narrated the continued maltreatment poured on her by the  accused. She  also deposed  that  Urmil  wrote  some letters from Sonepat to her at Calcutta and Hansi, but after going through  them she  tore  them  up.  Her  letters  also referred to  the same  maltreatment and  torture. Similarly, PW-6, the  father of  the  deceased  also  referred  to  the similar complaints  made to  him by  Urmil. He  also deposed that she  used to tell him that her husband and in-laws were maltreating and  harassing her on account of not meeting the demand of    a  scooter  and  a  fridge.  The  father  again expressed his  inability to  meet  this  demand.  Hence  her father sent  her back  after pacifying  her. Similar  is the deposition of PW-5, the sister of the deceased and PW-7, the brother-in-law of the deceased.      The  afore  referred  to  evidence,  according  to  the learned  counsel   for  the  appellant,  may  merely  be  an expression of  the desire  to acquire a fridge, scooter etc. and that by itself cannot be construed as an offence as this would not  come  within  the  definition  of  ‘dowry’  under Section 2  of the  Dowry Prohibition  Act,  1961  read  with Section 304-B  and 498  I.P.C. It  is necessary to refer the afore referred provisions.      Section 2  of the  Dowry Prohibition  Act, 1961 defines ‘dowry’ as under "-      "Definition of  ‘dowry’- In this Act, ‘dowry’ means any

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    property or  valuable security  given or  agreed to  be      given either directly or indirectly.      [a]  by one  party to  a marriage to the other party to           the marriage; or      [b]  by the parents of either party to a marriage or by           any other  person, to either party to the marriage           or to  any other  person, at or before or any time           after the marriage in connection with the marriage           of the said parties, but does not include dowry or           mehr in  the case  of persons  to whom  the Muslim           Personal Law (Shariat) applies. Section 304-B(1) with Explanation of IPC is as also quoted.      "304-B Dowry  death - (i) where the      death of  a woman  is caused by any      burns or  bodily injury  or  occurs      otherwise   than    under    normal      circumstances within seven years of      her marriage  and it  is shown that      soon  before   her  death  she  was      subjected to  cruelty or harassment      by her  husband or  any relative or      her husband  for, or  in connection      with, any  demand for  dowry,  such      death  shall   be   called   "dowry      death",   and   such   husband   or      relative shall  be deemed  to  have      caused her death.      Explanation -  For the  purposes of      this  sub-section,   "dowry"  shall      have the same meaning as in Section      2 of  the  Dowry  Prohibition  Act,      1961 (18 of 1961). Section 498-A is also quoted hereunder :      "498-A    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      woman to  cruelty shall be punished      with imprisonment  for a term which      may extend to three years and shall      also be liable to fine.      Explanation -  For the  purposes of      this section, "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 here or any person           related to  her  to  meet  any           unlawful   demand    for   any           property or  valuable security           or is on account of failure by           her or  any person  related to           her to meet such demand.      The aforesaid  1961  Act  was  enacted  to  provide  an effective  check  to  dowry  deaths  which  were  continuing despite the then prevailing laws. The object of the Bill was to prohibit the evil practice of giving and taking of dowry. This objective  was not  achieved hence  drastic  amendments

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were brought  in by  amending various provisions of the said Act and  the related  provisions under the Indian Penal Code and the  Evidence Act.  Earlier, the  definition of  ‘dowry’ which was  limited to the time at or before the marriage was extended to  the period  even after the marriage by means of Act 43  of 1986  w.e.f. November 19,1986. Similarly, Section 304-B was  introduced by  means of the same amending Act and Section  498-A   was  introduced  by  Criminal  Law  (Second Amendment)  Act,  1983  (Act  46  of  1983).  Various  other amendments  were   brought  in   bringing   more   stringent provisions in  the aforesaid  1961 Act  in order to stem the onslaught on the life of a married woman.      It is  true, as  argued  by  learned  counsel  for  the appellants, that in  criminal jurisprudence benefit of doubt is extendable  to the  accused. But  that benefit  of  doubt would arise  in the context of the application of penal law, and in the facts and circumstances of a case. The concept of benefit of  doubt has  an important  role to play but within the confines  of the  stringency of laws. Since the cause of death to  a  married  woman  was  to  occur  not  in  normal circumstances but as a ‘dowry death’, for which the evidence was not  to easily  available, as  it is  mostly confined to within four  walls of a house, namely husband’s house, where all likely  accused reside.  Hence the  aforesaid amendments brought in  the concept  of  deemed  ‘dowry  death’  by  the husband or  the relatives,  as the case may be. This deeming clause has  a role  to play  and cannot be taken lightly and ignored to  shield an accused, otherwise the very purpose of the amendment  will be  lost. Of course, the prosecution has to prove  the  ultimate  essential  ingredients  beyond  all reasonable doubt  after raising  the initial  presumption of ‘deemed dowry death’.      Explanation to section 304-B refers to dowry "as having the same  meaning as  in Section  2 of  the 1961  Act",  the question is  - what is the periphery of the dowry as defined therein? The  argument is,  there has  to be an agreement at the time  of the marriage in view of the words ‘agreed to be given’ occurring  therein, and  in the  absence of  any such evidence it  would not  constitute to  be  a  dowry.  It  is noticeable, as  this definition  by amendment  includes  not only the period before and at the marriage but also a period subsequent to the marriage.      When words  in statute  are referable  to more than one meaning, the  established rule  of construction  is found in Heydon’s case (1584) 76 E.R. 639 also approved by this Court in Bengal  Immunity Co.  Ltd. V.  State of Bihar & Ors., AIR 1955 SC  661 (674).  The rule  is to  consider four  aspects while construing an Act :      [a]  when was  the law prior to the law which is sought           to be interpreted;      [b]  when was  the mischief or defect for which new law           is made;      [c]  what is the remedy the law now provides; and      [d]  what is the reason of the remedy.      The  Court   must  adopt   that   construction   which, "suppresses the mischief and advances the remedy."      Applying this  principle, it  is clear that the earlier law was not sufficient to check dowry deaths hence aforesaid stringent  provisions  were  brought  in,  so  that  persons committing such  inhuman crimes  on married women should not escape, as  evidence of  a  direct  nature  is  not  readily available except  of the  circumstantial kind.  Hence it  is that interpretation which suppresses the mischief, subserves the objective  and  advances  the  remedy,  which  would  be acceptable. Objective  is that  men committing  such  crimes

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should not  escape punishment.  Hence  stringent  provisions were brought  in by  shifting the burden onto the accused by bringing in  the deemed clause. As aforesaid, the definition of ‘dowry’ was amended with effect from 19th November, 1986, to include a period even after the marriage.      The offence alleged against appellants is under Section 304-B IPC  which makes  ‘demand of dowry’ itself punishable. Demand  neither   conceives  nor   would  conceive   of  any agreement. If  for convicting  any offender,  agreement  for dowry is to be proved, hardly any offenders would come under the clutches of law. When Section 304-B refers to ‘Demand of dowry’, it  refers to  the demand  of property  or  valuable security as  referred to  in the definition of ‘dowry’ under 1961 Act.  It was  argued on  behalf of the  appellants that mere demand  of scooter  or fridge would not be a demand for dowry. We find from the evidence on record that within a few days  after   the  marriage,   the  deceased  was  tortured, maltreated and  harassed  for  not  bringing  the  aforesaid articles in marriage. Hence the demand is in connection with marriage. The  argument that  here is no demand of dowry, in the present case, has no force. In cases of dowry deaths and suicides, circumstantial  evidence plays  an important  role and inferences  can be  drawn on the basis of such evidence. That could  be either  direct of indirect. It is significant that Section 4 of the 1961 Act, was also amended by means of Act 63 of 1984, under which it is an offence to demand dowry directly or   indirectly from the parents or other relatives or guardian  of a bride. The word ‘agreement’ referred to in Section 2  has to be inferred on the facts and circumstances of each  case. The  Interpretation that the appellant seeks, that conviction can only be if there is agreement for dowry, is misconceived.  This would  be contrary to the mandate and object of  the Act.  "Dowry" definition is to be interpreted with the  other provisions  of the  Act including Section 3, which refers   to  giving or  taking dowry  and Section  4 - Penalty for  demanding dowry,  under the  1961 Act   and the Indian Penal  Code. This  makes it clear that even demand of dowry on  other ingredients  being satisfied  is punishable. This leads  to the inference, when persistent demands for TV and scooter  are made  from the bride after marriage or from her parents,  it would  constitute to  be in connection with the marriage  and it  would be  a case  of demand  of  dowry within the  meaning of  Section 304-B  IPC. It is not always necessary that there be any agreement for dowry.      Reverting to  the present  case, the  evidences of  the aforesaid  PWs  are  very  clear.  After  few  days  of  the marriage, there was demand of scooter and fridge, which when not being  met lead  to repetitive  taunts and maltreatment. Such demands cannot be said to be not in connection with the marriage. Hence  the evidence  qualifies to  be  demand  for dowry  in   connection  with   the  marriage   and  in   the circumstances of  the case  constitutes to be a case falling within the definition of ‘dowry’ under Section 2 of 1961 Act and Section 304-B IPC.      The next  question is, whether there was any cruelty or harassment by  the deceased’s  husband or  any relative  and that too  it was  soon before her death. The argument put in is that  neither  there  is  any  physical  injury  nor  any evidence of cruelty from any neighbours or other independent persons; hence  there is  no cruelty  or harassment.  In our considered opinion,  cruelty  nor  harassment  need  not  be physical. Even  mental torture  in a  given case  would be a case of cruelty and harassment within the meaning of Section 304-B and 498-A IPC. Explanation (a) to Section 498-A itself refers to  both mental  and physical  cruelty.  In  view  of

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Explanation (a) the argument is, before it constitutes to be a cruelty  there has  to be  wilful  conduct.  Again  wilful conduct means,  conduct wilfully  done may  be  inferred  by direct or  indirect evidence  which could be construed to be such. We  find, in  the present  case,  on  account  of  not satisfying the demand of the aforesaid goods, right from the next  day,   she  was  repeatedly  taunted,  maltreated  and mentally tortured by calling her ugly  etc. A girl dreams of great days ahead with hope and aspiration when entering into a   marriage, and  if from  the very  next day  the  husband starts taunting for not bringing dowry and calling her ugly, there  cannot  be  greater  mental  torture,  harassment  or cruelty for  any bride. There was a quarrel a day before her death. This  by itself,  in our  considered  opinion,  would constitute to  be a  wilful act  to be a cruelty both within the meaning of Section 498-A and Section 304-B IPC.      The argument,  that There is no evidence of any cruelty or harassment  soon before   her death, is also not correct. We find  both from the evidence of her sister, Trachala Devi PW-5 and  her  brother-in-law,  Ram  Gopal  PW-7,  that  the deceased on 14th May, 1987 came to Shahdara (Delhi) to mourn the death  of her  maternal uncle and by evening on the same day instead  of returning to her husband’s place came to her sister’s house.  She  remained  there  for  few  days.  Both deposed that  she told them that her husband was maltreating her in  view of  dowry demand,  and that not being satisfied was harassing   her. When on 17th May, 1987 the husband came to take   her  back, she  was reluctant  but  Trishala  Devi brought her  down and  sent her with her husband. Though she went with  the husband  but with the last painful words that "it would  be difficult  now to see her face in the future". On the very next day, on 19th May, one day after she arrived at her  husband’s place, the unfortunate death of Urmil took place. She  died admittedly  on account of total burn of her body. Admittedly the incident of quarrel as deposed was only a day  before her  death. There  is direct  evidence that on 17th May  itself, there  was quarrel  at the  house  of  her sister with  the  deceased  and  her  husband.  The  quarrel between the  deceased  and  her  husband  was  tried  to  be explained as  some other quarrel which should not constitute to be  a quarrel  in connection  with the  marriage. We find that Section  8-A of  the aforesaid 1961 Act which came into force w.e.f.  2nd October,  1985 for  taking or abetting any dowry, the  burden to  explain  is  placed  on  such  person against whom  the allegation  of committing  an  offence  is made. Similarly,  under Explanation  to Section 113-B of the Indian Evidence  Act, which  was  also  brought  in  by  the aforesaid Act No. 43 of 1986, there is presumption that such death is  on account  of dowry death. Thus the burden, if at all, was on the accused to prove otherwise.      The  aforesaid   evidence  would,   on  the  facts  and circumstances  of   the  case,   bring  to   an  inescapable conclusion that the aforesaid quarrel referred to by PWs 5 & 7 a  day before  actual death  of the deceased, cumulatively with other  evidence constitute to be cruelty and harassment in connection with marriage and that too at her own sister’s place  which  has  direct  co-relation  with  the  preceding evidence of  repeated demand  of dowry, to be a case covered both under Section 304-B and 498-A IPC. However, it was open to the  accused to  prove otherwise  or dispel  by means  of evidence to  destroy that deeming clause. But we find he has not been able to do so. Such burden is placed on the accused with a  purpose. Evidence  also concludes  harassment to the deceased within  the meaning  of Section  498-A  Explanation (b), as  she was  repeatedly coerced  for  not  meeting  the

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demands leading  to  her  mental  torture  and  agony  which ultimately led her to commit suicide.      In the present case, we find that both the courts below found that  inspite of  thorough cross-examination, there is no deviation on this issue. In fact, it has been pointed out by the  learned counsel  for  the  respondent  that  on  the question  of   cruelty  and  torture,  there  is  no  cross- examination though there is some on other points. The courts below have  rightly believed  the testimonies of the PWs and we do not find that there is anything for us to deviate from the same.  On the other hand, the evidence of the defence is of perfunctory nature, not enough to dispel the burden cast.      A faint submission was also made that it would not be a case of abetment of suicide under Section 306 IPC. Reference to Section  107 IPC was also made where abetment should fall under any  of the  three heads.  Reliance is  placed on  the first head. We find that the first head provides "instigates any person  to do  that thing".  There is  no doubt  in  the present case  there is  repeated demand  from the  husband’s side from  the girl and her parents for the various articles as aforesaid and on failure, the girl was tortured, harassed by words  and deeds,  amounting to  cruelty. As we have held above and  one day  before  the  fateful  day,  the  husband saturated the  mental agony  and cruelty by quarrelling with the wife  (deceased) even  at her sister’s place, leaving no option which led the deceased to commit suicide. This mental state is  further clear  by the  following words  which  she spoke to  her sister,  "it would be difficult now to see her face  in   the  future".  In  our  opinion  all  this  would constitute to  be an  act which would be an abetment for the commission of  the suicide  by the girl. The husband, in the present case, has not led any cogent evidence or brought any circumstance to  dislodge the aforesaid inference. Of course benefit of  doubt to the accused would be available provided there is  supportive evidence  on  the  record.  Hence,  for creating doubt  or granting  benefit of  doubt, the evidence was to  be such which may lead to such doubt. We do not find that present is a case where any benefit of doubt results at least against  the husband.  There is  direct  evidence,  as stated by the aforesaid witnesses PWs 5 & 7 that soon before her death  she was  subjected to  cruelty  by  the  husband. However, we  find in so far appellant Nos. 2 & 3, father-in- law and the mother-in-law, are concerned, the evidence is of a general  nature. No  convincing evidence has been led that the deceased  was subjected  to cruelty by appellant Nos.2 & 3. Before  holding that  appellant Nos.  2 & 3 had committed the offence,  it had  to be  found that they are responsible for subjecting her to cruelty or harassment, soon before her death. We find in this case evidence is only confined to the husband and  not against  appellant Nos. 2 & 3. Hence on the evidence on  record, so  far as  appellant Nos.  2 &  3  are concerned, we extend to them the benefit of doubt and acquit them.      Hence, for  the aforesaid  reasons, we partly allow the appeal. Convictions  and sentences  of  appellant  No.1  are maintained  but   the  convictions   and  sentences  of  the appellant Nos.  2 &  3 are set aside. Accordingly, appellant No.1, namely  Pawan Kumar  is sentenced to 7 years’ rigorous imprisonment with a fine of Rs. 500/-, in default of payment of fine for further rigorous imprisonment for 6 months under Sec tion  304-B IPC,  4 years’  rigorous imprisonment and to pay a  fine of  Rs 200/-, in default payment of fine further rigorous imprisonment  for 3  months, under Section 306 IPC, and sentence  for 2  years’ rigorous imprisonment and to pay fine for Rs.200/-, and in default of payment of fine further

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rigorous imprisonment  for three months, under Section 498-A IPC. All  the sentences  would run  concurrently. The  other appellants,  namely   appellants  Nos.  2  &  3  are  hereby acquitted. They  are on  bail. They  need not  surrender  to their bail bonds. Their bail bonds are hereby discharged.      The appeal is allowed in part.