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CASE NO.: Appeal (crl.)  825 of 2002

PETITIONER: Hira Lal and Ors.                                                

RESPONDENT: Vs. State (Govt. of NCT) Delhi                               

DATE OF JUDGMENT: 25/07/2003

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT:

J U D G M E N T

ARIJIT PASAYAT,J

       Marriages are made in heaven, is an adage. A bride  leaves the parental home for the matrimonial home, leaving  behind sweet memories therewith a hope that she will see a  new world full of love in her groom’s house. She leaves  behind not only her memories, but also her surname, gotra  and maidenhood. She expects not only to be a daughter in  law, but a daughter in fact. Alas! The alarming rise in the  number of cases involving harassment to the newly wed girls  for dowry shatters the dreams. Inlaws are characterized to  be outlaws for perpetrating a terrorism which destroys  matrimonial home. The terrorist is dowry, and it is  spreading tentacles in every possible direction.  

       With a view to curb the spiraling number of cases where  demand for dowry leads to loss of life, Dowry Prohibition  (Amendment) Act 1986 brought about sweeping changes in the  penal statutes, and  Sections 304-B of the Indian Penal  Code, 1860 (in short the ’IPC’) and Section 113B of Indian  Evidence Act, 1872 (in short the ’Evidence Act’) came to be  enforced.   

One Sarita (hereinafter referred to as ’deceased’)  committed suicide by consuming poison on 14.4.1999. She was  married to accused Surender on 26.11.1995.  Other appellants  Hiralal and Angoori Devi were her father-in-law and mother- in-law respectively.  Since the death was unnatural,  information was lodged with police and investigation was  undertaken.   

Grievance was made by the family members of deceased  that she was subjected to torture for dowry and that led to  her suicide.  On completion of investigation, charge-sheet  was placed for alleged commission of offences punishable  under Section 304-B and 498A IPC.  Trial was conducted by   learned Sessions Judge, New Delhi in Sessions case No.  11/1999 and the appellants were found guilty under Sections  304-B and 498A read with Section 34 IPC. They were sentenced  to undergo RI for 10 years and fine of Rs.10,000/- each with  default stipulation of SI for one year, and also one year RI  with fine of Rs.5000/- with stipulation of SI for one month  for the two substantive offences respectively.  It is  relevant to note that for substantiating the accusations

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twelve witnesses were examined. Bahadur Singh (PW-1), Sobha  Rani (PW-5), Ratti Ram (PW-10), Manju (PW-11), the father,  brother, cousin brother and sister, respectively of the  deceased spoke about the dowry demands. The testimony was  accepted to be truthful and cogent by the Trial Court.  

The matter was carried in appeal before the Delhi High  Court.  By the impugned judgment, learned Single Judge  reduced the sentence to 3 years RI instead of 10 years RI in  respect of accused-appellants Hiralal and Angoori keeping in  view their old age.  The fine imposed was maintained but the  default sentence was reduced to six months, custodial  sentence and fine for offences punishable under Section 498A  were maintained.  In case of appellant-Surender, the  sentence was reduced to 7 years in respect of first offence,  while for the second offence the sentence was maintained.   

In support of the appeal, learned counsel for the  appellants submitted that ingredients of Section 304-B and  498A are not made out.  There was no evidence regarding any  dowry demand.  On the contrary it was confirmed that at the  time of marriage there was no demand for dowry.  It is of  relevance to note that while deceased was married to  accused-Surender, her sister, Manju (PW-11)  was married to  Virender, elder brother of Surender.  Both the marriages  were solemnized on the same date. It has been accepted by  the prosecution witnesses that there was no demand for  valuable articles at any point subsequent to the marriage   in case of Manju. If the demand was made for deceased as  alleged, there is no reason as to why a departure was made  in case of her sister.  The evidence of relatives (PW-1, PW- 2, PW-10 and PW11) does not inspire any confidence.  Before  the alleged suicide, there were differences between the  deceased and her husband for which allegations were made  with the police. Finally the difference was sorted out by  settling that they shall stay separately from other members  of the family.  There was a conciliation made by the  officials and the conditions indicated related to separate  residence.  There was not even inkling about demand of money  or articles.  This has been categorically accepted  by both  PWs 10 and 11.  It is, therefore, submitted that both Trial  Court and the High Court fell in grave error by going into  surmises to convict the appellants.   

In response learned counsel for the State -Govt. of NCT  of Delhi, submitted that the ingredients of the offences  have been clearly made out.  In any event the case can be  considered in terms of Section 306 IPC.  

Section 304-B IPC deals with dowry death reads as  follows:

"304-B. Dowry Death- (1) 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 of  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.

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Explanation â\200\223 For the purpose of this sub- section ’dowry’ shall have same meaning as  in Section 2 of the Dowry Prohibition Act,  1961 (28 of 1961).

(2)     Whoever commits dowry death shall be  punished with imprisonment for a term which  shall not be less than seven years but which  may extend to imprisonment for life."

The provision has application when 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  relatives of her husband for, or in connection with any  demand for dowry. In order to attract application of  Section 304-B 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.

Section 113-B of the Evidence Act is also relevant for the  case at hand.  Both Section 304-B IPC and Section 113-B of  the Evidence Act were inserted as noted earlier by the  Dowry Prohibition (Amendment) Act 43 of 1986 with a view to  combat the increasing menace of dowry deaths. Section 113-B  reads as follows:-

"113-B: 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 â\200\223 For the purposes of this  section ’dowry death’ shall have the same  meaning as in Section 304-B of the Indian  Penal Code (45 of 1860)."

     The necessity for insertion of the two provisions has been  amply analysed by the Law Commission of India in its 21st  Report dated 10th August, 1988 on ’Dowry Deaths and Law  Reform’.  Keeping in view the impediment in the pre- existing law in securing evidence to prove dowry related

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deaths, legislature thought it wise to insert a provision  relating to presumption of dowry death on proof of certain  essentials.  It is in this background presumptive Section  113-B in the Evidence Act has been inserted.  As per the  definition of ’dowry death’ in Section 304-B IPC and the  wording in the presumptive Section 113-B of the Evidence  Act, one of the essential ingredients, amongst others, in  both the provisions is that the concerned woman must have  been "soon before her death" subjected to cruelty or  harassment "for or in connection with the demand of  dowry". Presumption under Section 113-B is a presumption  of law.  On proof of the essentials mentioned therein, it  becomes obligatory on the Court to raise a presumption that  the accused caused the dowry death.  The presumption shall  be raised only on proof of the following essentials:  

(1)     The question before the Court must be  whether the accused has committed the dowry  death of a woman. (This means that the  presumption can be raised only if the  accused is being tried for the offence under  Section 304-B IPC). (2)     The woman was subjected to cruelty or  harassment by her husband or his relatives. (3)     Such cruelty or harassment was for, or  in connection with any demand for dowry. (4)     Such cruelty or harassment was soon  before her death.

       A conjoint reading of Section 113-B of the Evidence  Act and Section 304-B IPC shows that there must be material  to show that soon before her death the victim was subjected  to cruelty or harassment.  Prosecution has to rule out the  possibility of a natural or accidental death so as to bring  it within the purview of the ’death occurring otherwise  than in normal circumstances’.  The expression ’soon  before’ is very relevant where Section 113-B of the  Evidence Act and Section 304-B IPC are pressed into  service.  Prosecution is obliged to show that soon before  the occurrence there was cruelty or harassment and only in  that case presumption operates.  Evidence in that regard  has to be led by prosecution.  ’Soon before’ is a relative  term and it would depend upon circumstances of each case  and no strait-jacket formula can be laid down as to what  would constitute a period of soon before the occurrence.   It would be hazardous to indicate any fixed period, and  that brings in the importance of a proximity test both for  the proof of an offence of dowry death as well as for  raising a presumption under Section 113-B of the Evidence  Act.  The expression ’soon before her death’ used in the  substantive Section 304-B IPC and Section 113-B of the  Evidence Act is present with the idea of proximity test.   No definite period has been indicated and the expression  ’soon before’ is not defined.  A reference to expression  ’soon before’ used in Section 114.  Illustration (a) of the  Evidence Act is relevant.  It lays down that a Court may  presume that a man who is in the possession of goods  ’soon  after the theft, is either the thief has received the goods  knowing them to be stolen, unless he can account for his  possession.  The determination of the period which can come  within the term ’soon before’ is left to be determined by  the Courts, depending upon facts and circumstances of each  case.  Suffice, however, to indicate that the expression  ’soon before’ would normally imply that the interval should  not be much between the concerned cruelty or harassment and

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the death in question.  There must be existence of a  proximate and live-link between the effect of cruelty based  on dowry demand and the concerned death.  If alleged  incident of cruelty is remote in time and has become stale  enough not to disturb mental equilibrium of the woman  concerned, it would be of no consequence.

       The evidence of PWs 1, 5, 10 and 11 shows that at the  time of marriage there was no demand for dowry. But  subsequently, the demands were made, and ill-treatments  were meted out. The crucial question is whether they were  soon before the death. PWs 10 and 11 stated that grievances  were made before the Crime against Women Cell and the  authorities brought about reconciliation. It however was  candidly admitted that there was no mention about any dowry  aspect while the differences were ironed out. The  settlement arrived at on 30.11.1998 was essentially for  separate residence. Therefore, there is no definite  evidence about ill-treatment to the deceased at any time  having immediate proximity to the date of death of the  deceased on 14.4.1999 about ill-treatment by the accused  persons to attach culpability under Section 304-B IPC.   Therefore, the basic requirement of cruelty or harassment  soon before the death to bring application of Section 304-B  is absent.

       Further question is whether a case under Section 498-A  has been made out, even if accusations under Section 304-B  fail.  Section 498-A reads as follows:

"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 â\200\223 For the purpose of this  section ’cruelty’ means â\200\223

(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."

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 of Section 498-A IPC. Cruelty has been  defined in the explanation for the purpose of Section 498- A.  Substantive Section 498-A IPC and presumptive Section  113-B of the Evidence Act have been inserted in the  respective statutes by Criminal Law (Second Amendment) Act,

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1983. It is to be noted that Sections 304-B and 498-A, 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 498-A gives the  meaning of ’cruelty’.  In Section 304-B there is no such  explanation about the meaning of ’cruelty’.  But having  regard to common background to these offences it has to be  taken that the meaning of ’cruelty’ or ’harassment’ is the  same as prescribed in the Explanation to Section 498-A  under which ’cruelty’ by itself amounts to an offence.   Under Section 304-B it is ’dowry death’ that is punishable  and such death should have occurred within seven years of  marriage.  No such period is mentioned in Section 498-A.  A  person charged and acquitted under Section 304-B can be  convicted under Section 498-A without that charge being  there, if such a case is made out.  If the case is  established, there can be a conviction under both the  sections.  (See Akula Ravinder and others v. The State of  Andhra Pradesh (AIR 1991 SC 1142). Section 498-A 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  period of seven years from the date of marriage.             

Section 2 of the Dowry Prohibition Act, 1961 (in short  ’Dowry Act’) defines "dowry" as under:-

Section 2. Definition of ’dowry’ â\200\223 In this  Act, ’dowry’ means any property or valuable  security given or agreed to be given either  directly or indirectly â\200\223

(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 dower or mehr  in the case of persons to whom the Muslim  personal law (Shariat) applies.

Explanation I- For the removal of doubts, it  is hereby declared that any presents made at  the time of a marriage to either party to  the marriage in the form of cash, ornaments,  clothes or other articles, shall not be  deemed to be dowry within the meaning of  this section, unless they are made as  consideration for the marriage of the said  parties.

Explanation II- The expression ’valuable  security’ has the same meaning in Section 30  of the Indian Penal Code (45 of 1860)."

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       As was observed by this Court in Satvir Singh and Ors.  vs. State of Punjab and Anr. (2001 (8) SCC 633), "suicidal  death" of a married woman within seven years of her  marriage is covered by the expression "death of a woman is  caused .......or occurs otherwise than under normal  circumstances" as expressed in Section 304B IPC.

Section 306 IPC deals with abetment of suicide.  The  said provision reads as follows:

"306: Abetment of suicide â\200\223 If any person  commits suicide, whoever abets the  commission of such suicide, shall be  punished with imprisonment of either  description for a term which may extend to  ten years, and shall also be liable to  fine."    

It may be noted that though no charge was framed under  Section 306 IPC that is inconsequential in view of what has  been stated by a three-judge Bench of this Court in K.  Prema S. Rao and Anr. vs. Yadla Srinivasa Rao and Ors.  (2003 (1) SCC 217).

On the facts of the case even though it is difficult  to sustain the conviction under Section 304B IPC, there are  sufficient materials to convict the accused-appellants in  terms of Section 306 IPC along with Section 498A IPC.

Custodial sentence of three years for the offence  punishable under Section 306 IPC would meet the ends of  justice. The sentence awarded for offence punishable under  Section 498A by Trial Court and upheld by the High Court is  maintained.  Both the sentences relatable to Sections 498A  and 306 IPC shall run concurrently.   

It may be noted here that the High Court had reduced  the sentence to three years from 10 years in case of  accused â\200\223appellant Hiralal and Angoori Devi, while  upholding their conviction under Section 304B IPC.  It is  unfortunate that the High Court failed to notice that the  minimum sentence for offence punishable under Section 304B  is seven years in terms of sub-section (2) thereof.  

 Since the appellants 1 and 2 were released on bail  pursuant to the order dated 25.10.2002, they shall  surrender to serve out the remainder of the sentence, if  not already served. The appeal is disposed of accordingly.