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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.