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CASE NO.: Appeal (crl.)  419 of 1997

PETITIONER: Kunhiabdulla and Anr.                                    

RESPONDENT: State of Kerala                                                  

DATE OF JUDGMENT: 09/03/2004

BENCH: Y.K. SABHARWAL & ARIJIT PASAYAT

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

       Menace of dowry cuts across caste, religion and  geographical location.  In the instant case, victim belonged  to a remote village in the State of Kerala. The two  appellants stood charged for alleged commission  of offence  punishable under Section 304B read with Section 34 of the  Indian Penal Code, 1860 (in short ’the IPC’).  The Trial  Court found that the prosecution has failed to establish the  accusations and directed their acquittal.

       In appeal preferred by the State, the judgment of  acquittal was set aside and the accused persons were found  guilty under Section 304B read with Section 34 IPC and each  was sentenced to undergo RI for seven years.                       The victim in this case was one Sherifa (hereinafter  referred to as ’the deceased’) and the accused-appellants 1  and 2 were her husband and mother-in-law respectively.   

According to the prosecution following is the factual  scenario:

       The deceased was married to the appellant no.1 (A-1) on  19.1.1989. At the time of marriage, there was an agreement  to pay Rs.35000/- as dowry.  Since the entire amount was not  paid, the accused was subjected to mental and physical  harassment. On 29.8.1991 about 9.00 a.m. she committed  suicide by jumping into a well.  Information was lodged by  Kunhimoidi (PW-1), a neighbour and investigation was  undertaken. The case was registered under the heading  ’unnatural death’. On completion of investigation, charge  sheet was filed. Seventeen witnesses were examined to  further the prosecution version, while the accused persons  pleaded innocence and examined 3 witnesses. According to  them, the deceased had accidentally fallen into the well and  it was not a case of suicide.  As noted above, the Trial  Court found that there were some unexplained discrepancies  in the evidence of the main witnesses i.e PWs 5, 6 and 15  relating to demand of dowry and, therefore, it would be  unsafe to convict accused persons.

       In appeal, the High Court found that the approach of

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the Trial court was not correct. It found that the evidence  of PWs 6 and 15 clearly established the commission of  offence by the accused persons.

       In support of the appeal, learned counsel for the  accused-appellants submitted that there was no dispute  regarding payment of a sum of Rs.30,000/- as dowry. In fact,  this amount was kept in a bank account in the name of the  deceased and this itself negates the plea of prosecution  that there was greed for money.  Further, the deceased had  herself withdrawn money and given the same to somebody. The  claim of Kunhammed and Kunhi Choyi (PWs 6 and 15  respectively) that they witnessed the occurrence is  improbabilised by the evidence of Prema (PW-5) who was  stated to be an eyewitness.  Her evidence rules out theory  of suicide and the possibility of PWs 6 and 15 seeing the  alleged occurrence.  The well admittedly was not covered on  the sides and it was possible as was held by the Trial Court  that the deceased had slipped.  Since the view taken by the  Sessions Judge was a possible view, the High Court should  not have interfered with the same. Furthermore, the evidence  of prosecution in no way shows that the accused no.2  allegedly demanded dowry.  Moideen (PW-8) had himself stated  that he did not have any idea if any amount in excess of   Rs.30,000/- was demanded as dowry.  There was no harassment  after the payment of Rs.30,000/-. Therefore, there was no  question of any demand immediately prior to the alleged  occurrence.  Section 304B has therefore no application.

       In response, learned counsel for the State of Kerala  submitted that both the Trial Court and the High Court have  discarded the plea taken by the accused persons that the  deceased accidentally fell into the well.  The Trial court  proceeded on erroneous premises to hold that the demand of  dowry has not been established overlooking the cogent  evidence of Moideen and Kunhammed (PWs 8 and 12  respectively). Moreover, PWs 3 and 4 who were neighbours  categorically stated about the harassment meted out to the  deceased for non-payment of dowry.    Section 304B IPC deals with dowry death which reads as  follows:

"304B. 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.

Explanation \026 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."

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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  304B 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 113B of the Indian Evidence Act, 1872 (in short  the ’Evidence Act’) is also relevant for the case at hand.   Both Section 304B IPC and Section 113B of the Evidence Act  were inserted by the Dowry Prohibition (Amendment) Act 43 of  1986 with a view to combat the increasing menace of dowry  deaths. Section 113B reads as follows:-

"113B: 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 \026 For the purposes of this  section "dowry death" shall have the same  meaning as in Section 304B 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 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  113B in the Evidence Act has been inserted.  As per the  definition of ’dowry death’ in Section 304B IPC and the  wording in the presumptive Section 113B 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 113B is a presumption of  law.  On proof of the essentials mentioned therein, it

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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 304B 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 113B of the Evidence Act  and Section 304B 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 113B of the Evidence Act and  Section 304B 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 113B of the Evidence Act. The expression ’soon  before her death’ used in the substantive Section 304B IPC  and Section 113B 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, or has received the goods knowing them to be stolen,  unless he can account for its 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 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.

       When the aforesaid factual scenario as described by  Narayani (PW 3), Safiya (PW-4), and PWs 8 and 12 is  considered in the background of legal principles set out  above, the inevitable conclusion is that accusations have  been clearly established so far as accused-appellant no.1

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husband of the deceased is concerned. But in respect of  accused-appellant No.2, evidence against her relating to  alleged demand of dowry is not cogent, and no credible  evidence has been brought on record to substantiate the  accusations. Therefore, while upholding the conviction and  sentence imposed so far accused-appellant no.1 is concerned,  we direct acquittal of accused-appellant no.2.

       The accused-appellant no.1 is directed to surrender to  custody to serve remainder of sentence, if any. The bail  bonds of accused-appellant no.2 be cancelled.        

       The appeal is accordingly disposed of.