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CASE NO.: Appeal (crl.)  1027 of 2006

PETITIONER: Kailash

RESPONDENT: State of M.P.

DATE OF JUDGMENT: 09/10/2006

BENCH: ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No. 5592 of 2005)

ARIJIT PASAYAT, J.

       Leave granted.

Challenge in this appeal is to the judgment rendered by a  learned single Judge of the Madhya Pradesh High Court at  Jabalpur dismissing the appeal of the appellant and  maintaining his conviction and sentence as recorded by the  trial Court.

Appellant faced trial for alleged commission of offences  punishable under Section 498-A and 304-B of the Indian  Penal Code, 1860 (in short the ’IPC’) relatable to the death  of  He was found guilty by the trial Court and was sentenced to  undergo rigorous imprisonment for ten years for the offence  relatable to Section 304-B IPC but no separate sentence was  imposed for the offence relatable to Section 498-A IPC though  he was found guilty of the said offence. Smt. Shyam Bai who  faced trial with the appellant was acquitted by the trial Court.

Prosecution case in a nutshell is as follows:

Appellant got married with the deceased on 4.5.1997.   Acquitted accused Smt. Shyam Bai is the aunt of appellant.   In the wee hours of 18.3.1999 the dead body of deceased was  found floating in a well located in the house of the appellant.   Thus, the death of Uma Devi occurred otherwise then under  normal circumstances.  The deceased was subjected to cruelty  or harassment by her husband and acquitted accused in  connection with demand for dowry.

Inquest was conducted and the dead body of Uma Devi  was sent for post mortem examination. The post mortem  examination was conducted by Dr. R.G. Kotia (PW1) who  found an anti-mortem lacerated wound on occipital region of  the body and blood was oozing out from the wound. Dr. Kotia  opined that cause of death of Uma Devi was asphexia due to  drowning. In his opinion approximate time of death was  within 12 to 24 hours of the post-mortem examination. Ex.P-1  is the report of Dr. Kotia. During investigation a rope and one  steel gund were recovered from the spot. Jamuna Prasad (PW-

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3), Mainda Bai (PW4), Desh Raj (PW5) Sheel Kumar (PW6),  Parwati (PW7), Mukundi (PW8) and Dashrath (PW9) were  examined to prove the dowry demand, harassment and  torture. Placing reliance on their evidence, trial Court  convicted the appellant. Matter was carried in appeal before  the High Court.  Before the High Court, it was contended that  the evidence was not sufficient to prove the dowry demand,  torture or harassment. The High Court did not accept the plea  and affirmed the conviction and sentence.

In support of the appeal learned counsel for the  appellant submitted that the evidence of the witnesses who  were examined to prove alleged dowry demand, torture and  harassment, is not sufficient to prove commission of offence  by the appellant.  It is full of exaggerations and trial Court and  the High Court should not have placed reliance on them. It  was submitted that the sentence, as imposed, is high. With  reference to the material on record it is submitted that the  accused has already undergone nearly eights years of the  sentence.

Learned counsel for the respondent-State on the other  hand supported the order.   

On reading of the evidence of the witnesses who have  spoken about dowry demand, torture and harassment nothing  substantially discrepant can be noticed. The witnesses,  though cross-examined at length, stated in clear terms about  the dowry demand, the torture and the harassment.  In that  view of the matter the trial Court and the High Court was  justified in holding the accused guilty.

In Kans Raj v. State of Punjab (2000 (5) SCC 207) a  three-Judge Bench of this Court dealt with the presumption  available in terms of Section 113-B of the Evidence Act, 1872  (in short "the Evidence Act") and its effect on finding persons  guilty in terms of Section 304-B IPC. It was noted as follows:  (SCC p. 217, para 9)

"9. The law as it exists now provides that where  the death of a woman is caused by any burns  or bodily injury or occurs otherwise than under  normal circumstances within 7 years of  marriage and it is shown that soon before her  death she was subjected to cruelty or  harassment by her husband or any relative for  or in connection with any demand of dowry  such death shall be punishable under Section  304-B. In order to seek a conviction against a  person for the offence of dowry death, the  prosecution is obliged to prove that:

(a) the death of a woman was caused by burns  or bodily injury or had occurred otherwise than  under normal circumstances;

(b) such death should have occurred within 7  years of her marriage;

(c) the deceased was subjected to cruelty or  harassment by her husband or by any relative  of her husband;

(d) such cruelty or harassment should be for or  in connection with the demand of dowry; and

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(e) to such cruelty or harassment the deceased  should have been subjected soon before her  death."

The law as it exists now provides that where the death of  a woman is caused by any burns or bodily injury or occurs  otherwise than under normal circumstances within 7 years of  marriage and it is shown that soon before her death she was  subjected to cruelty or harassment by her husband or any  relative for or in connection with any demand of dowry such  death shall be punishable under Section 304-B. In order to  seek a Conviction against a person for the offence of dowry  death, the prosecution is obliged to prove that: (a) the death of a woman was caused by burns or bodily  injury or had occurred otherwise than under normal  circumstances; (b) such death should have occurred within 7 years of  her marriage; (c) the deceased was subjected to cruelty or harassment  by her husband or by any relative of her husband; (d) such cruelty or harassment should be for or in  connection with the demand of dowry; and (e) to such cruelty or harassment the deceased should  have been subjected soon before her death.

No presumption under Section 113-B of the Evidence Act  would be drawn against the accused if it is shown that after  the alleged demand, cruelty or harassment the dispute stood  resolved and there was no evidence of cruelty or harassment  thereafter. Mere lapse of some time by itself would not provide  to an accused a defence, if the course of conduct relating to  cruelty or harassment in connection with the dowry demand  is shown to have existed earlier in time not too late and not  too stale before the date of death of the victim. This is so  because the expression used in the relevant provision is "soon  before". The expression is a relative term which is required to  be considered under specific circumstances of each case and  no straitjacket formula can be laid down by fixing any time- limit. The expression is pregnant with the idea of proximity  test. It cannot be said that the term "soon before" is  synonymous with the term "immediately before". This is  because of what is stated in Section 114 Illustration (a) of the  Evidence Act. The determination of the period which can come  within the term "soon before" is left to be determined by the  courts, depending upon the 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 cruelty or harassment concerned and the  death in question. There must be existence of a proximate and  live link [see Hira Lal v. State (Govt. of NCT), Delhi (2003 (8)  SCC 80].

The factual position of the present case goes to show that  the death was not in normal circumstances. The expression  "normal circumstances" apparently means natural death. In  other words the expression "otherwise than under normal  circumstances" means death not being in the usual course  but apparently under suspicious circumstances if not caused  by burns or bodily injury. This position was noted before this  Court in Shanti v. State of Haryana (1991 (1) SCC 371).

These aspects were highlighted in Thakkan Jha v. State

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of Bihar (2004 (13) SCC 348).  

The conviction as maintained by the High Court needs  no interference. Coming to the question of sentence, on  considering the background facts, it would be appropriate to  reduce the custodial sentence to eight years which the  appellant claims to have undergone including remissions.  If  the appellant had already undergone custodial sentence  including remission for eight years, he shall be immediately  released from custody unless required to be in custody in  connection with any other case.

The appeal is partly allowed so far as it relates to  quantum of sentence.