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CASE NO.: Appeal (crl.)  384 of 1998

PETITIONER: The State of Andhra Pradesh      

RESPONDENT: Raj Gopal Asawa and Anr.         

DATE OF JUDGMENT: 17/03/2004

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

       The State of Andhra Pradesh has questioned legality of  the judgment rendered by a Division Bench of the Andhra  Pradesh High Court holding respondents to be not guilty of  the alleged offences for which the Trial Court had convicted  them i.e. offences punishable under Section 304B and Section  498A of the Indian Penal Code 1860 (for short ’the IPC’).   Three persons faced trial relating to the alleged suicidal  death of one Mangala (hereinafter referred to as ’the  deceased’). A-3 was her husband, while A-1 and A-2 were her  brother-in-law and mother-in-law respectively.  During the  pendency of the appeal before the High Court, A-2 expired  and the appeal was held to be abated so far she was  concerned.

Accusations which led to the trial were as follows:  The deceased and A-3 were married on 6.7.1989.  Admittedly, the accused committed suicide at about 11.30  a.m. on the date of occurrence i.e. 2.4.1990. The accused  persons took her to the hospital where she was declared to  be dead. The Inspector of Police sent a complaint to the SHO  to register a case. FIR was registered and investigation was  undertaken. On completion of investigation, charge sheet was  placed and the accused persons faced trial.  They pleaded  innocence.  To further the prosecution version 10 witnesses  were examined while to substantiate its plea of innocence,  accused persons examined 12 witnesses. The Trial Court found  that the evidence of PWs 2, 3, 4 and 6 about the demand of  dowry made by A-1 and A-2 was cogent and credible. A-3 was  held guilty as he extended tacit support, albet indirectly.  Placing reliance on the evidence of PWs 2, 3, 4 and 6 it was  held that the demand of dowry has been clearly established.  Though it was noticed that there was no direct evidence of  A-3, the husband making any demand of dowry, his silence was  construed to be an act of endorsing the demand and he was,  as noted above, held guilty.   

In the appeal before the High Court the primary stand  taken was that there was no evidence to show about any  agreement or demand for payment of dowry before the  marriage. Even if any subsequent demand was made as alleged,  that cannot bring in application of Section 304B IPC.  It  was further submitted that no grievance has been ever made  before DW-1, the eldest member of the family of the accused

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persons about the alleged demand. It was the case of PWs 2,  3, 4 and 6 that any demand was made before the marriage. The  High Court by the impugned judgment held that on the grounds  urged by the accused persons, conviction cannot be  maintained.  With reference to a decision of the Andhra  Pradesh High Court in Ayyala Rambabu v. State of Andhra  Pradesh (1993 (1) ALT (Crl.) 73) it was held that to  constitute "dowry", the demand should be made directly or  indirectly, either at the time of marriage, or before the  marriage or at any time after the marriage in connection  with the marriage of the parties. If there was no agreement  between the parties to give or take any property or valuable  security or where the property or valuable security has been  given or taken but thereafter further amounts are demanded  after the marriage, such demands will not fall within the  meaning of dowry. So far as A-3 is concerned, it was held  that there was no evidence of his having ever demanded  dowry.  

       Mr. G. Prabhakar, learned counsel for the State  submitted that the legal position has not been properly  appreciated by the High Court. The view taken that  subsequent demand does not constitute dowry is clearly  untenable.  Further, the conclusion that the demand of dowry  has not been established merely because no grievance was  made before the father-in-law (DW-1) cannot be a ground to  discard the credible evidence of PWs 2, 3, 4 and 6.

       In response, learned counsel for the accused- respondents submitted that the view taken by the High Court  both on the interpretation of the term "dowry" and the  factual aspects is correct. Further in order to attract  application of Section 304B, there must be a proximity link  of the demand with the alleged suicide.  In the absence of  any evidence in that regard, the conviction has been rightly  set aside. Further, there being no demand of any dowry by  the respondent (A-3), the judgment of the High Court so far  as he is concerned, does not suffer from any infirmity.

               Sections 304B and Section 498A read 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.

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."

"498-A: Husband or relative of husband of a  woman subjecting her to cruelty- Whoever,

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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 \026 For the purpose of this  section ’cruelty’ means \026

(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."          The term "dowry" has been defined in Section 2 of the  Dowry Prohibition Act, 1961 (in short ’Dowry Act’) as  under:- "Section 2. Definition of ’dowry’ \026 In this  Act, ’dowry’ means any property or valuable  security given or agreed to be given either  directly or indirectly \026

(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)."      Explanation to Section 304-B refers to dowry "as having  the same meaning as in Section 2 of the 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"

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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 the period subsequent to  the marriage. This position was highlighted in Pawan Kumar  and Ors. v. State of Haryana (1998 (3) SCC 309). The offence alleged against the respondents 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  the Act. The argument that there 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 or indirect. It is significant  that Section 4 of the 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 respondents seek,  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 which  deals with a penalty for demanding dowry, under the Act and  the IPC. This makes it clear that even demand of dowry on  other ingredients being satisfied is punishable. It is not  always necessary that there be any agreement for dowry. 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 \026 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 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

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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 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

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in time and has become stale enough not to disturb mental  equilibrium of the woman concerned, it would be of no  consequence.

       The above position was highlighted in Hira Lal and  Ors. v. State (Govt. of NCT), Delhi (2003(8) SCC 80) and in  Vidhya Devi and Anr. v. State of Haryana (JT 2004 (1) 609).  

       Their accusations have been clearly established so far  as A-1 is concerned. The evidence of PWs 2, 3, 4 and 6 are  clear, cogent and trustworthy. They have categorically  spoken about the demand as made by A-1 and A-2. Therefore,  the High Court was not justified in holding that no demand  was made. Learned counsel for the accused-respondent  submitted that there is no definite evidence about demand  soon before the death. In view of the fact that the death  occurred within the very few months of the marriage, and  the evidence of PWs 2, 3, 4 and 6 that shortly before the  deceased committed suicide, demand of dowry was made, the  plea is untenable. The accusations clearly stand  established so far as A-1, respondent no.1 is concerned. So  far as accused A-3 is concerned, there is no evidence that  he ever made any demand of dowry. The inference that he had  extended tacit approval for the demand is based on mere  surmises and conjectures without any material to  substantiate it. Therefore, the acquittal so far he is  concerned, does not call for any interference, though for   reasons different from those indicated by the High Court.   

       In the ultimate result the appeal is allowed so far  respondent no.1 - A-1 is concerned while it is dismissed so  far as respondent no.2 - A-3 is concerned. Custodial  sentence of 7 years would meet the end of justice for  respondent no.1 - A-1.  He shall surrender to custody to  serve remainder of  sentence.  Bail bonds of respondent  no.2 - A-3 be cancelled.   

       The appeal is allowed to the extent indicated.