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CASE NO.: Appeal (crl.)  431 of 1997

PETITIONER: Yashoda and another                               

RESPONDENT: State of Madhya Pradesh                                  

DATE OF JUDGMENT: 04/02/2004

BENCH: N. SANTOSH HEGDE & B.P. SINGH

JUDGMENT: J U D G M E N T

B.P. Singh, J.

       The appellants in this appeal are the parents of  Kalicharan, who was married to Gangabai (deceased) about 4  years before the date of occurrence.  Her death in circumstances  not considered normal within seven years of her marriage led to  the prosecution of the appellants as well as Kalicharan and eight  other relatives and villagers charged variously of the offences  under Sections 498A, 304B and 201 IPC.  The trial of  Kalicharan, husband of the deceased, was separated as he was  found to be a juvenile and his case transferred to the Juvenile  Court for his trial.  The appellants alongwith eight other  accused persons were put up for trial before the Fourth  Additional Sessions Judge, Morena in Sessions Case No. 252 of  1989.  The learned Sessions Judge by his judgment and order of  February 4, 1992 found the appellants guilty of the offences  with which they were charged but acquitted the remaining  accused persons who were charged of the offence under Section  201 IPC finding no evidence to support the charge.   The  appellants herein were sentenced to undergo one year rigorous  imprisonment and to pay a fine of Rs.500/- under Section 498A  IPC; to ten years rigorous imprisonment and a fine of  Rs.1,000/- under Section 304B IPC and two years rigorous  imprisonment and a fine of Rs.500/- under Section 201 IPC.   The appellants challenged their conviction and sentence before  the High Court of Madhya Pradesh, Bench at Gwalior in  Criminal Appeal No. 31 of 1992 but the High Court, finding no  merit in the appeal, dismissed the same upholding their  conviction and sentence.

       It is not in dispute that deceased Gangabai was married to  Kalicharan about 4 years before the occurrence which occurred  on May 19, 1989.  While the prosecution contended that the  death of Gangabai occurred under circumstances otherwise than  normal and she was earlier subjected to cruelty and harassment  by the appellants as well as by her husband and soon before her  death also she was meted out such treatment by them in  connection with demand for dowry, the defence contended that  Gangabai died on account of an attack of diarrhoea and  vomiting, and inspite of the fact that the appellants had taken  her for medical treatment to the hospital at Morena where she  was treated by the doctors.  According to the defence the  allegation against the accused that they had made persistent  demand of dowry was false and that they had been falsely  implicated on account of the fact that some amount had been  advanced to Shankar Lal (father of the deceased) by them

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which remained unpaid.   

       The trial court as well as the High Court have subjected  the prosecution evidence to critical scrutiny and have  concurrently reached the conclusion that so far as the appellants  herein are concerned, the charges under Sections 498A;  304B  and 201 IPC are fully established.

       Shri S.K. Gambhir, Senior Advocate, appearing on behalf  of the appellants vehemently contended before us that there was  really no substance in the allegation made by the prosecution.   He further submitted that the deceased suffered a bout of  vomiting accompanied with diarrhoea and when they found that  her condition was not stable, the appellants immediately  removed her to the Morena Hospital where she was treated by  the doctors concerned, but inspite of the their best efforts, she  did not survive.  He also submitted that in any event the  prosecution has failed to establish the charge under Section  304B IPC since there was no evidence to prove that the  deceased had been subjected to harassment and cruelty by the  appellants soon before her death in connection with any  demand of dowry.  It, therefore, followed that the presumption  under Section 304B could not be drawn against them and there  was no other evidence to prove that the appellants had caused  the death of deceased Gangabai.

       The prosecution has examined several witnesses to prove  its case which includes Lalaram (PW-3), brother of the  deceased; Kalicharan (PW-4), uncle of the deceased; Shankarlal  (PW-5), father of the deceased and Ramdei (PW-7), mother of  the deceased.  The prosecution also examined as PW-2, Natthi  Devi who was a nurse attached to the Morena Hospital.  This  witness was declared hostile but we shall notice her evidence at  the appropriate place.  The defence examined only one witness,  namely \026 Vijay Singh (DW-1).  Shri R.N. Pachori (PW-6), who  partly investigated the case has also deposed with regard to the  steps taken by him after he received the information about the  admission of Gangabai in the Morena Hospital in suspicious  circumstances.

       We have carefully scrutinized the evidence on record  despite the concurrent findings of fact recorded by the courts  below but we find no reason to differ from the findings  recorded by them.   

The evidence on record disclosed that Gangabai was  married to Kalicharan about 4 years before her death.  At the  time of marriage some amount in cash and some ornaments  were given by the parents of the deceased.  Gangabai went to  her matrimonial home after the marriage but returned after 5-6  days.  She reported to her parents and brother that her father-in- law ; mother-in-law as well as her husband were demanding a  gold chain ; a ring and a phool (earing) and had threatened her  that if she did not bring those items, she will not be ever sent to  her parents house again.  The evidence on record also  establishes the fact that on two other occasions the deceased  had gone to her matrimonial home and on both occasions the  appellants persisted in their demand for gold ornaments and  harassed the deceased and treated her with cruelty.  The  evidence on this aspect of the matter is consistent.  The mother  of the deceased namely, Ramdei (PW-7) to whom the deceased  reported her sufferings in detail stated that whenever the  deceased came back from her matrimonial home she told her  that the appellants were demanding the ornaments and that they  assaulted her and threatened her for not bringing those

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ornaments.  They used to assault her with fists and kicks and  also with a ’danda’.  According to PW-7 she had seen the marks  on her body supporting the version of her daughter that she was  assaulted by them on account of the failure of her parents to  give the ornaments demanded.  Lalaram (PW-3), brother of the  deceased, has also deposed on the same lines.  In particular, he  has mentioned that when he had gone to bring his sister from  her matrimonial home, the appellants had demanded from him  those three items of jewellery and he had somehow or the other  managed to pacify them by assuring that their demands will be  fulfilled.  He has also stated about the reports made by deceased  Gangabai about her ill treatment at the hands of the appellants.   The evidence of Kalicharan (PW-4), uncle of the deceased is  also to the same effect.  He has stated that once when Lalaram  (PW-3) went to bring back his sister the appellants refused to  send her back on the ground that their demands had not been  met.  Lalaram (PW-3) came back and reported the matter to his  father Shankarlal (PW-5), brother of Kalicharan.  Shankarlal  then persuaded his brother Kalicharan (PW-4) to go and bring  the deceased and deal with the appellants in a suitable manner.   According to Kalicharan (PW-4) he went to the matrimonial  home of the deceased and in view of the resistance of the  appellants, he had to assure them that all their demands will be  met and that he will take personal responsibility for the same.   It was only thereafter that the deceased was permitted to go to  her parents.   

The evidence of these witnesses also prove that about 15  days before the occurrence, Kalicharan, the husband of the  deceased, had himself come to fetch the deceased.  On that  occasion also he had reiterated his demand for the gold  ornaments and to him also an assurance was given by the father  of the deceased Shankarlal (PW-5) that he would arrange for  the said articles within a month.  On the basis of the evidence of  PWs. 3, 4, 5 and 7 we are satisfied that the prosecution has  successfully proved its case that there was a persistent demand  for gold ornaments ever since the marriage of the deceased with  Kalicharan, which demand was reiterated on many occasions  and the demand last made was just 15 days before the  occurrence.  

We shall now consider the evidence relevant to the  conduct of the appellants.  The defence case is that the deceased  suffered a bout of vomiting and diarrhoea and was therefore  removed to the Morena Hospital for treatment.  It is true that  the deceased was removed to the Morena Hospital for treatment  on May 19, 1989.  It is equally true that the appellants did not  inform the parents of the deceased about her death and they  came to know about it from another source.  PWs. 3, 4 and 5  had rushed to the matrimonial home of the deceased but they  found that her body had already been cremated in the night.   There is neither any evidence nor any suggestion to the  prosecution witnesses that the appellants had made any attempt  to send intimation to the parents of the deceased regarding her  death, nor is there any dispute that the body of the deceased was  cremated on the same night and, therefore, it was not possible  to hold post-mortem examination to ascertain the cause of  death.   

The evidence of the nurse at the Morena Hospital,  namely Natthi Devi (PW-2) is to the effect that the deceased  had been brought to the hospital in an unconscious condition.   She was admitted in the hospital on the basis of a slip given by  the doctor.  When she found that the condition of the patient  was critical she immediately gave a call to the doctor on duty

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who responded immediately.  However, within 5-6 minutes of  the arrival of the doctor, namely - Dr. Srivastava, the patient  died.  According to her the death of the deceased took place  within = an hour of her being brought to the hospital.  The  witness could not say what medicines were given to the  deceased and what was the nature of her ailment.  In fact this  witness had to be declared hostile since she went back on the  statements made by her in the course of investigation.   

We have then the evidence of the Investigating Officer  (PW-6).  According to him it came to his knowledge that the  deceased had been admitted in the hospital in suspicious  circumstances and she had been cremated without giving  information.  On the basis of the said information he registered  Marg No.5/1989 and proceeded to enquire into the matter.  He  went to the cremation ground and had seized ashes and some  bones of the deceased.   During enquiry he recorded the  statement of the father and brother of the deceased as well as  Kotwar.  His enquiry revealed that the deceased had been done  to death by her in-laws who had been demanding dowry and  that for non fulfillment of demand the deceased used to be  reprimanded and beaten.  He, therefore, registered Case No. 26  of 1989 under Sections 304B ; 498A ; 201 ; 176 /34 IPC.  He  had arrested the appellants and some of the other accused.   

The evidence on record, therefore, reveals that the  deceased was taken to the Morena Hospital in a critical  condition when she was about to die and in fact she died within  = an hour of her admission in the hospital.  The appellants  made no effort to inform the parents of the deceased about her  death and on the contrary cremated the body of the deceased the  same night in a suspicious manner.

Shri Gambhir seriously contended that it was for the  prosecution to prove that the deceased had died in  circumstances otherwise than normal.  He contended that the  prosecution ought to have examined the doctor and produced  the relevant documents from the hospital to establish the cause  of death of the deceased.  We cannot uphold this contention.   The prosecution has successfully established that the deceased  was married to Kalicharan about 4 years before her death.  The  facts also reveal that the death was not under normal  circumstances.  There was also evidence to show that the  deceased was persistently subjected to cruelty and harassment  by her husband as well as by her parents in connection with  demand for dowry, in particular the demand for gold  ornaments.  Once it is held that these facts stand established,  under Section 304B IPC a presumption arises that it is a case of  dowry death, and that her husband or relatives who subjected  her to cruelty and harassment shall be deemed to have caused  her death.  No doubt this is a rebuttable presumption, but in the  absence of any evidence in rebuttal, the Court may, with the aid  of the presumption convict the accused of that charge.  Once the  prosecution proves the facts which give rise to the presumption  under Section 304B IPC, the onus shifts to the defence and it is  for the defence to produce evidence to rebut that presumption.   The defence may adduce evidence in support of its defence or  may make suggestions to the prosecution witnesses to elicit  facts which may support their defence.  The evidence produced  by the defence may disclose that the death was not caused by  them, or that the death took place in normal course on account  of any ailment or disease suffered by the deceased or that the  death took place in a manner with which they were not at all  connected.  In the instant case if the defence wanted to prove  that the deceased had suffered from diarrhoea and vomiting and

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that resulted in her death, it was for the defence to adduce  evidence and rebut the presumption that arose under Section  304B IPC.  The defence could have examined the doctor  concerned or even summoned the record from the hospital to  prove that in fact the deceased has suffered such ailment and  had also been treated for such ailment.              

The evidence adduced by the prosecution, therefore,  clearly establishes that the appellants made a persistent demand  for some gold ornaments and the first demand was made when  the deceased went to her matrimonial home on the first  occasion and returned after 5-6 days.  She complained to her  mother about the treatment meted out to her.  She also narrated  her woes to her brother and father.  The evidence of her mother  Ramdei (PW-7) is clear and categoric that her daughter had  been assaulted by the appellants in her matrimonial home and  she had seen signs of violence on the person of the deceased.   The evidence on record also discloses that on other occasions  also when the deceased went to her matrimonial home the  demand was repeated.  The evidence of her brother Lalaram  (PW-3) and her uncle Kalicharan (PW-4) in this regard is  eloquent.  Even on the last occasion when she was about to  leave for her matrimonial home and her husband had come to  fetch her, he again made the demand but with a view to pacify  him, Shankarlal (PW-5), father of the deceased, assured him  that he will make necessary arrangement.  While leaving her  parental home, the deceased had wept and told her uncle that if  the demand of the appellants was not met, they will not let her  live.  About 15 days after her last departure the parents of the  deceased suddenly came to know that she had died.  The  evidence on record, therefore, clearly establishes that there was  persistent demand for gold ornaments and she was being  persistently ill treated by the appellants for not bringing those  gold ornaments, and her death occurred in circumstances which  cannot be considered to be normal.   

Mr. Gambhir, however, submitted that there is no  evidence to show that soon before her death she had been  treated with cruelty and had been harassed by the appellants.   According to him the words "soon before" in Section 304B IPC  are material and there must be evidence to show that soon  before her death she had been subjected to cruelty or  harassment by her husband in connection with demand for  dowry.     

The words "soon before" found in Section 304B IPC  have come up for consideration before this Court in large  number of cases.  This Court has consistently held that it is  neither possible nor desirable to lay down any straitjacket  formula to determine what would constitute "soon before" in  the context of Section 304B IPC.  It all depends on the facts and  circumstances of the case.  Learned counsel for the appellant  relied upon a decision of this Court rendered by two Learned  Judges reported in AIR 1997 SC 1873 : Sham Lal  vs.  State of  Haryana and submitted that as in that case, so in the present  case, there was no evidence to suggest that after the deceased  went to her matrimonial home, she had been subjected to  cruelty and harassment before her death.  The facts of Sham  Lal’s  case are clearly distinguishable and they have been so  distinguished in the case of Kans Raj  vs.   State of Punjab and  others : (2000) 5 SCC 207 by a Bench of 3 Learned Judges of  this Court.  This Court observed :-

"It is further contended on behalf of the  respondents that the statements of the deceased

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referred to  the instances could not be termed to be  cruelty or harassment by the husband soon before  her death.  "Soon before" 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.   This expression is pregnant with the idea of  proximity test.  The term "soon before" is not  synonymous with the term "immediately before"  and is opposite of the expression "soon after" as  used and understood in Section 114,  Illustration  (a) of the Evidence Act.  These words would imply  that the internal should not be too long between the  time of making the statement and the death.  It  contemplates the reasonable time which, as earlier  noticed, has to be understood and determined  under the peculiar circumstances of each case.  In  relation to dowry deaths, the circumstances  showing the existence of cruelty or harassment to  the deceased are not restricted to a particular  instance but normally refer to a course of conduct.   Such conduct may be spread over a period of time.   If the cruelty or harassment or demand for dowry  is shown to have persisted, it shall be deemed to be  "soon before death" if any other intervening  circumstance showing the non-existence of such  treatment is not brought on record, before such  alleged treatment and the date of death.  It does  not, however, mean that such time can be stretched  to any period.  Proximate and live link between the  effect of cruelty based on dowry demand and the  consequential death is required to be proved by the  prosecution.  The demand of dowry, cruelty or  harassment based upon such demand and the date  of death should not be too remote in time which,  under the circumstances, be treated as having  become stale enough".      

(emphasis supplied)

       Noticing the earlier judgment of this Court in Sham Lal  case it held that the facts were distinguishable as in that case  there was evidence to show that an attempt had been made to  patch up between two sides for which a Panchayat was  convened in which the matter was settled.  The Panchayat was  held about 10-15 days before the occurrence.  There was  nothing on record to show that the deceased was either treated  with cruelty or harassed with the demand of dowry during the  period between her having been taken to the nuptial home and  her tragic end.

       In the instant case as well there is nothing to show that  the demand had been given up or had been satisfied by the  parents of the deceased.  On the contrary there is evidence to  prove that even 15 days before the occurrence such a demand  was reiterated and while leaving for her matrimonial home the  deceased had wept and told her uncle that if the demand was  not met, they will not let her live.  The facts of this case are  similar to the facts in the case of Kans Raj.  In our view the  same principle must apply.  There is clear evidence on record  that the demand for gold ornaments persisted and so did  harassment and cruelty meted out to the deceased.  Every time  she came to her parents she wept and narrated her miserable  plight.  The last demand was made only fifteen days before her  death.  In these circumstances it cannot be said that there is no

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evidence on record to support the finding that soon before her  death she was subjected to cruelty and harassment by the  appellants and her husband in connection with demand of  dowry.   

Learned counsel also submitted that the prosecution  evidence did not rule out natural or accidental death.  As we  have noticed above, the deceased was a young girl and there is  no evidence even to suggest that she was suffering from any  ailment.  15 days before her death she had gone to her  matrimonial home in good health.  Suddenly one day her  parents came to know that she had died.  Her death was  therefore, clearly in circumstances which cannot be considered  to be normal.  If she had really died a natural or accidental  death, the appellants were the best persons to disclose the  relevant facts which were solely within their knowledge.   Indeed when all the conditions of Section 304B were fulfilled  and a presumption arose against the appellants they were  required to rebut that presumption in order to successfully  defend themselves.  They did not do so. The evidence of DW-1  has been rightly discarded by the courts below.  In these  circumstances and in the absence of any acceptable evidence  whatsoever, to suspect that the death may have been accidental  or on account of natural causes, will be speculative.  Law does  not permit a Court to speculate or conjecture so as to imagine  events about which there is absolutely no evidence on record.   The manner in which the dead body was disposed of at night  has further added to the incriminating circumstances proved  against the appellants.  

We are, therefore, satisfied that the prosecution has  successfully proved its case against the appellants.  We,  therefore, concur with the view of the courts below and  affirming the conviction and sentence of the appellants, dismiss  this appeal.